Liberal take on the oral argument today for the 2nd amendment

[Thorgrim]

First off, note that both the government (SG Clement) and the pro-heller advocate both thought there can be reasonable regulation, in fact banning of machine guns, shawed off shotguns, they even didn't seem to object to taking a gun outside with you

So, in that sense, "liberalism" of the general Brady groups was on strong ground today

However, the words "an individual right" seemed all but certain to come out, the only hope seems to be a dramatic reversal of Kennedy, or Roberts insisting on keeping the ruling limited

Kennedy went, IMO, on obsessive questionioning about Home-owners, at least 5 times talking about the founding fathers apparently needing a gun without a trigger lock to defend themselves from grizzly bears

He stated the most NRA-friendly comments of the day, and it is hard to imagine he'll go back on them


But, remember there were some 80 briefs, Breyer read all of them (as a Justice should) and this is it such a huge controversy, and such a big argument could be done justice through these quotes, but they were particular questions that struck liberal points in the oral arguments:

JUSTICE SOUTER: So what you are -- what you are saying is that the individual has a right to challenge a Federal law which in effect would disarm the militia and make it impossible for the militia to perform those functions that militias function. Isn't that the nub of what you're saying? [After listening to the DC advocate on the quasi-pro-gun control positioning]

[If the the founders wanted everyone to have an individual right to have a handgun]
"Congress or the States shall pass no law abridging the right of any person to possess weapons for personal use."

[representing the Bush government] GENERAL CLEMENT: I don't think so, Justice Stevens, because we don't take the position that the preamble plays no role in interpreting the amendment. And we would point to this court's decision in Miller, for example, as an example of where the preamble can play a role in determining the scope -

Well, Justice Kennedy, we would analyze it this way, which is we would say that probably the thing that was foremost in the framers' minds was a concern that the militia not be disarmed such that it would be maintained as a viable option to the standing army.

JUSTICE STEVENS: And how many of [1780s state constitutions] them protected an individual right? Just two, right?
GENERAL CLEMENT: I think -- I think Pennsylvania and Vermont are the ones that most obviously protected.
JUSTICE STEVENS: And the others quite clearly went in the other direction, did they not?

JUSTICE STEVENS: There was also a proposal [before a state legislature] to make it clear there was an individual right, which was also rejected.

JUSTICE SOUTER: Somebody going out to -- in the eighteenth century, someone going out to hunt a deer would have thought of themselves as bearing arms? I mean, is that the way they talk?
GENERAL CLEMENT: Well, I will grant you this, that "bear arms" in its unmodified form is most naturally understood to have a military context.

JUSTICE STEVENS: Not only Miller, but the Massachusetts declaration. "The right to keep and bear arms for the common defense" is what is the normal reading of it.
GENERAL CLEMENT: Oh, absolutely. And I grant you if this, if the Second Amendment said "keep and bear arms for the common defense" this would be a different case.

JUSTICE BREYER: That brings me back to the question because Blackstone describes it as a right to keep and bear arms "under law." And since he uses the words "under law," he clearly foresees reasonable regulation of that right. And so does the case not hinge on, even given all your views, on whether it is or is not a reasonable or slightly tougher standard thing to do to ban the handgun, while leaving you free to use other weapons?
I mean, I notice that the militia statute, the first one, spoke of people coming to report, in 1790, or whenever, with their rifles, with their muskets, but only the officers were to bring pistols.So that, to me, suggests they didn't see pistols as crucial even then, let alone now.

If we know that at the time, in 1789, Massachusetts had a law that said you cannot keep loaded firearms in the house, right, and you have to keep all of the bullets and everything and all of the powder upstairs, why did they have that law? To stop fires because it's dangerous? They didn't have fire departments. Now we do -- or they weren't as good.
We now have police departments, and the crime wave might be said similar to what were fires then. And, therefore, applying the similar kind of thing, you say: Fine, just as you could keep pistols loaded but not -- not loaded. You had to keep powder upstairs because of the risk of fire. So today, roughly, you can say no handguns in the city because of the risk of crime.
Things change. But we give in both instances, then and now, leeway to the city and States to work out what's reasonable in light of their problems. Would that be a way of approaching it?

JUSTICE SOUTER: Is there any -- is there any record evidence that the anti-Federalist objections to the Constitution that ultimately resulted in the Second Amendment were premised on any failure to recognize an individual right of self-defense or hunting or whatnot, as distinct from being premised on concern about the power of the national government and the militia clauses in Article 1?
MR. GURA: Yes, Justice Souter. If we look to, for example, the -- the demands of the Pennsylvania minority, the anti-Federalists there were extremely influential. They couched their demands in unmistakably self-defense terms. In fact, they added a provision -
JUSTICE SOUTER: No, but they didn't -- they didn't limit it to self-defense. I mean, what provoked it, as I understand it, was concern about the militia clauses, and here I mean you're certainly correct. I agree with you. Pennsylvania went beyond that. It was -- it was one of three States, as I understand, that did go beyond it. But the provocation for getting into the subject, as I understand it, was, in each instance including Pennsylvania, concern over the national government's power over militias under Article 1.

CHIEF JUSTICE ROBERTS: You know, you can't take it into the marketplace was one restriction.[One restriction from the 1790s period that even Roberts would seem to accept]

So, it's not really an argument, but several decent remarks to take out the more "easy to read" oral arguments, and see a small portion of the liberal position

[Thorgrim]

I read the 110 page oral arguments, here is a link to it if you want to read it yourself, and you can bounce ideas off me and each other...

PDF Link

[Thorgrim]

well gees im glad i plucked out some quotes and was ready to discuss the whole damn thing with you guys only to get nothing...

[kinggovernor]

Originally Posted by Thorgrim

well gees im glad i plucked out some quotes and was ready to discuss the whole damn thing with you guys only to get nothing...

I just got done reading 200+ plus pages of patent reform shit and today is my birthday, I will respond later or tomorrow

[thewise1]

I appreciate the fact that you bothered to type it all out, thorgrim, but I am so biased in this matter that it would be pointless for me to seriously discuss it.

Luckily I live in a state where our state constitution makes it clear.

SECTION 24 RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.

As for the anti gun battle, if you democrats were smart (well, I don't mean that as an insult, just a figure of speech) you'd intentionally fuck this up and get the supreme court to guarantee our individual right - not subject to regulation.

If the gun control argument were out of the way, Democrats would lose probably half of the objections to them being in office that they face.

[Thorgrim]

Originally Posted by thewise1

I appreciate the fact that you bothered to type it all out, thorgrim, but I am so biased in this matter that it would be pointless for me to seriously discuss it.

Luckily I live in a state where our state constitution makes it clear.

SECTION 24 RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.

As for the anti gun battle, if you democrats were smart (well, I don't mean that as an insult, just a figure of speech) you'd intentionally fuck this up and get the supreme court to guarantee our individual right - not subject to regulation.

If the gun control argument were out of the way, Democrats would lose probably half of the objections to them being in office that they face.

if only...

we let the assault weapons bill die and look where that got us? the NRA is gonna come out in full force...and i dont see that changing...people made up their minds and they are stubborn

[thewise1]

Originally Posted by Thorgrim

if only...

we let the assault weapons bill die and look where that got us? the NRA is gonna come out in full force...and i dont see that changing...people made up their minds and they are stubborn

You may have let the assault weapons bill die, but you didn't end the effort. I've had to write at least 30 letters so far this year to my local legislatures because the democrats and other gun control groups have taken the fight to a state level. It seems like every time I turn around I have to write another letter to my legislators because there is another bill trying to infringe on my rights.

Seriously, I've written them enough that they have started to give me phone calls and talk to me about it.

Also, the NRA isn't your real enemy anymore, at least like they used to be.

[Thorgrim]

Originally Posted by thewise1

You may have let the assault weapons bill die, but you didn't end the effort. I've had to write at least 30 letters so far this year to my local legislatures because the democrats and other gun control groups have taken the fight to a state level. It seems like every time I turn around I have to write another letter to my legislators because there is another bill trying to infringe on my rights.

Seriously, I've written them enough that they have started to give me phone calls and talk to me about it.

Also, the NRA isn't your real enemy anymore, at least like they used to be.

I think there's a big difference in 90% of the people in Vermont wanting as limited gun abilities as possible, than the US government telling Texas what to do

[Stylerod]

Originally Posted by Thorgrim

if only...

we let the assault weapons bill die and look where that got us? the NRA is gonna come out in full force...and i dont see that changing...people made up their minds and they are stubborn

Do you even know what the assault weapon bill banned? That bill was a feel good bill that made democrats feel good about themselves but it didn't ban anything. I was still able to purchase an AR15 or an AK47 after the "ban" just as easily as before the ban, legally.

So letting the assault weapon bill die affected nothing. Because the bill accomplished nothing.

[Pocono Pete]

Originally Posted by Thorgrim

First off, note that both the government (SG Clement) and the pro-heller advocate both thought there can be reasonable regulation . . .

Who has argued in this case to remove the "reasonable regulations" (Class III weapons, felon disarmament, age of majority to exercise, etc.) from Heller's side? I've read all the briefs, never saw it . . . I listened to the arguments yesterday, never heard it . . .

Originally Posted by Thorgrim

So, in that sense, "liberalism" of the general Brady groups was on strong ground today

So you take solace in the fact that a position never argued was not presented? The Brady position is on life support and liberals are going to get a wake-up smack to the face like they never thought possible.

Originally Posted by Thorgrim

However, the words "an individual right" seemed all but certain to come out, the only hope seems to be a dramatic reversal of Kennedy, or Roberts insisting on keeping the ruling limited

Well, that the question under consideration crafted by the Court itself happens to ask whether the DC statutes, "violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, . . . " What's really shocking that you are upset that the term was actually used in oral arguments / questioning.

Originally Posted by Thorgrim

Kennedy went, IMO, on obsessive questionioning about Home-owners,

Well, that the question under consideration crafted by the Court itself happens to ask whether the DC statutes, "violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes." What's really shocking that you are upset that some of the questions actually pertained to the ability of homeowners to be armed in their homes under DC statute.

Originally Posted by Thorgrim

He stated the most NRA-friendly comments of the day, and it is hard to imagine he'll go back on them

Kennedy's direction of questioning and comments were no surprise to me, I always counted him with Thomas, Scalia, Roberts and Alitio as the solid individual right block. I have also believed Ginsberg would protect the individual right and now I am convinced that she will vote with that majority. At a minimum it will be a 6-3 decision; in fact, I don't think it is out of the realm of possibility for the decision to be unanimous on the fundamental constitutional question presented.

If it is 9-0, Bryer, Stevens and Souter and probably Ginsberg will only concur in part if the opinion becomes an extensive re-affirmation of a fundamental right. The minority's opinion will be rooted in a progressive "times have changed, so we must apply an 'evolved' standard of interpretation where certain "particular" fundamental right interests can be compromised" reasoning. Not quite a "living constitution" model but a dangerous application of a "sliding scale" to decide protection of an enumerated, fundamental right . . .

Originally Posted by Thorgrim

but they were particular questions that struck liberal points in the oral arguments:

I guess you need to take a few comforting questions / comments from yesterday and hold them tight to assuage your injured psyche but you got a couple philosophically wrong and you are celebrating some real clunkers. Let's examine your cites:

Originally Posted by Thorgrim

JUSTICE SOUTER: So what you are -- what you are saying is that the individual has a right to challenge a Federal law which in effect would disarm the militia and make it impossible for the militia to perform those functions that militias function. Isn't that the nub of what you're saying? [After listening to the DC advocate on the quasi-pro-gun control positioning]

How would an individual have an enforceable right interest in challenging a law that hindered "the [official] militia to perform those functions that [official] militias function?" Who could argue then that the individual does not have an enforceable right interest in challenging a law that directly disarms him personally? This statement and agreement by the DC Attorney seems to me to be an expansion of the individual's protectable right interest. How is the DC Advocate agreeing with that a good thing for your side?

Originally Posted by Thorgrim

Well, Justice Kennedy, we would analyze it this way, which is we would say that probably the thing that was foremost in the framers' minds was a concern that the militia not be disarmed such that it would be maintained as a viable option to the standing army.

And in the framer's time who were the militia? According to Madison they were every male capable of bearing arms; this amounted to a mass of individuals numbering 25% of the whole population (but only 20% had "arms in their hands"). Madison said the armed citizens would outnumber whatever standing army that could be maintained in the nation by a ratio of 17 to 1. In modern times we have bettered Madison's ratio by a couple percentage points to about 20 armed citizens to 1 active duty military person.

Originally Posted by Thorgrim

JUSTICE STEVENS: And how many of [1780s state constitutions] them protected an individual right? Just two, right?
GENERAL CLEMENT: I think -- I think Pennsylvania and Vermont are the ones that most obviously protected.
JUSTICE STEVENS: And the others quite clearly went in the other direction, did they not?

This is nothing more than Stevens suffering from the common liberal affliction of believing the right to arms is granted, shaped and conditioned by the provision securing it; that only the specific liberty permitted by the express language of the provision is protected . . . That since common, private uses of firearms is not "listed" as "uses," governments can assume to have the power to impact that area without a direct and specific power to do so. . . Stupid, ass-backwards and un-American to say the least . . .

Originally Posted by Thorgrim

JUSTICE STEVENS: There was also a proposal [before a state legislature] to make it clear there was an individual right, which was also rejected.

Nothing to do with the 2nd Amendment . . . As StupidStevens was corrected, the "proposal" was never presented to Congress in any form.

Originally Posted by Thorgrim

JUSTICE SOUTER: Somebody going out to -- in the eighteenth century, someone going out to hunt a deer would have thought of themselves as bearing arms? I mean, is that the way they talk?
GENERAL CLEMENT: Well, I will grant you this, that "bear arms" in its unmodified form is most naturally understood to have a military context.

And when the mass of oppressed citizens finally says "ENOUGH" and takes up arms to reclaim their liberties are they not "bearing arms" and wouldn't such bearing of arms be both of a military nature and without the approval of Congress? The right to bear arms is the right to rescind, with force, our consent to be governed.

Originally Posted by Thorgrim

JUSTICE STEVENS: Not only Miller, but the Massachusetts declaration. "The right to keep and bear arms for the common defense" is what is the normal reading of it.
GENERAL CLEMENT: Oh, absolutely. And I grant you if this, if the Second Amendment said "keep and bear arms for the common defense" this would be a different case.

Hey SG Clement, if the 8th Amendment said no cruel and unusual punishments except for drilling a criminal's eyeballs out with a dull auger and pouring lye in, the whole death penalty discussion would have a different flavor wouldn't it? So F'in what???

Originally Posted by Thorgrim

JUSTICE BREYER: That brings me back to the question because Blackstone describes it as a right to keep and bear arms "under law." And since he uses the words "under law," he clearly foresees reasonable regulation of that right.

Those qualifications and conditions in the English bill of rights were exactly what the founders considered so repugnant to the American ideal of equal rights. It is exactly the situation they sought to forbid government from enacting. I was screaming when the question was presented asking if Madison was influenced by the English bill of rights -- YEAH! in the negative! See Madison's notes introducing the proposed amendments.

Originally Posted by Thorgrim

I notice that the militia statute, the first one, spoke of people coming to report, in 1790, or whenever, with their rifles, with their muskets, but only the officers were to bring pistols.So that, to me, suggests they didn't see pistols as crucial even then, let alone now.

Were citizens who mustered with their pistols disarmed if they were not officers? A liberal always looks at a situation and conjures ways to empower government's control over the citizen. Disgusting . . .

Originally Posted by Thorgrim

JUSTICE SOUTER: Is there any -- is there any record evidence that the anti-Federalist objections to the Constitution that ultimately resulted in the Second Amendment were premised on any failure to recognize an individual right of self-defense or hunting or whatnot, as distinct from being premised on concern about the power of the national government and the militia clauses in Article 1?
MR. GURA: Yes, Justice Souter. If we look to, for example, the -- the demands of the Pennsylvania minority, the anti-Federalists there were extremely influential. They couched their demands in unmistakably self-defense terms. In fact, they added a provision -
JUSTICE SOUTER: No, but they didn't -- they didn't limit it to self-defense. I mean, what provoked it, as I understand it, was concern about the militia clauses, and here I mean you're certainly correct. I agree with you. Pennsylvania went beyond that. It was -- it was one of three States, as I understand, that did go beyond it. But the provocation for getting into the subject, as I understand it, was, in each instance including Pennsylvania, concern over the national government's power over militias under Article 1.

The reason that the the individual right was not an issue for either the Federalists or Anti-Federalists is because the existence of the citizen's right to keep and bear their private arms was universally accepted as a general right as no power was ever conferred to government to infringe on the right.

There is no doubt that the DC statutes will fall and Parker will be upheld. Take from the stupid questions of the liberals what you will, their influence is minuscule, thank goodness.

[Thorgrim]

liberals are stupid..."stupidstevens"...you don't even like one of the most conservative lawyers in America...there really isn't anything constructive in your post to reply to...

there was absolutely nothing Ginsburg said that indicated she'd vote with Thomas, Scalia...if anything Breyer might offer a concurrence and dissent if the headcount is 5-4 before they start writing their opionions

The only 9-0 possibility is that they rule this decision only affects DC and does not mean the 2nd amendment applies to the states, etc...anything that would give gun owners across the country more "rights"

Liberals have a lot to be happy about, if the court rules (as it seems likely) that weapons can be regulated MORE HEAVILY than any real militia, than liberals no have a constitutional footing, from a conservative court no less, to ban AR-15s, etc (and revoke any special licences we currently have for some people that have real machine guns)...only keeping in some small amount of handguns...see what that would get you a revolution against tanks and jets...

some liberals would have "lost the battle with handguns" in only a very small way...some people can keep them in a gun safe, which is what the liberals in MA already ask

but many people much more liberal than I, don't particularly care if people have handguns in gun safes

This does nothing to stop many liberal ideas on the table for the next 20 years: registration of all guns...ballistic fingerprinting...etc

The current democratic majority is made up thanks to pro-handgun Democrats, which win republican districts for us, and vote liberal on other issues, no one honestly expected a nationwide handgun ban until a more forceful alternative than a tazzer is invented (which is only a matter of time)