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Title: Unanimous pro-Second-Amendment stun gun decision from the Supreme Court
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Published: Mar 22, 2016
Author: By Eugene Volokh
Post Date: 2016-03-22 20:12:32 by tpaine
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Views: 12559
Comments: 77
Unanimous pro-Second-Amendment stun gun decision from the Supreme Court By Eugene Volokh March 22 at 8:16 AM In Commonwealth v. Caetano, The Massachusetts high court upheld Massachusetts’ total ban on stun gun possession. Yesterday’s Caetano v. Massachusetts decision from the Supreme Court reversed that Massachusetts decision and sent the case back to the Massachusetts court for further review (presumably to consider, for instance, whether the ban may still be justified by some sufficiently important government interest): The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” and that this “Second Amendment right is fully applicable to the States.” In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” This is inconsistent with D.C. v. Heller‘s clear statement that the Second Amendment “extends … to … arms … that were not in existence at the time of the founding.” The court next asked whether stun guns are “dangerous per se at common law and unusual,” in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason. Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” But Heller rejected the proposition “that only those weapons useful in warfare are protected.” For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. A few thoughts (note that I co-filed an friend-of-the-court brief supporting review in this case): 1. This is a unanimous decision, unlike the court’s earlier Second Amendment cases — D.C. v. Heller and McDonald v. City of Chicago — which were 5-4. I doubt that Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, who were in the dissent in McDonald, are reconciled to those cases; I suspect they would be willing to overrule them if they had five votes to do so. But in this case, they were willing to accept them as given. 2. It was also a decision handed down without oral argument and without full briefing on the merits. (The parties filed a petition for certiorari, a brief in opposition, and a reply brief, but those formally dealt just with the question whether the court should hear the case.) The court thus seemed to view this as a very easy case. 3. The summary reversal also helps explain why the justices reversed only the Massachusetts high court’s conclusion that stun guns were definitionally excluded from Second Amendment protection: Whether the stun gun ban may still be justified is a more complicated question, which many justices may hesitate to resolve without oral argument and full briefing; and those justices might have thought that there’s no need to devote such resources to the case now, since the matter might go away if the Massachusetts high court on remand holds in Caetano’s favor. 4. Caetano’s petition and our amicus brief argued that there was a split between the reasoning of this decision and the Connecticut Supreme Court’s decision in State v. DeCiccio (which held that the Second Amendment protects dirks and police batons), as well as between this decision and the Michigan Court of Appeals’ decision in State v. Yanna, which struck down the Michigan stun gun ban. But the majority mentioned neither case, and Justice Samuel Alito’s concurrence in the judgment mentioned only Yanna, and that just in passing. The justices thus didn’t seem interested in the presence of this sort of disagreement among lower courts, though the presence of such a disagreement is often seen as a very important factor in the Supreme Court’s deciding whether to grant review. The justices just seemed to think the reasoning of the decision was plainly wrong, and that was reason enough to reverse — something the justices very rarely do (at least setting aside cases where a state government lost below). 5. Justices Alito and Clarence Thomas would have gone further and would have held outright that the Massachusetts ban was unconstitutional; their opinion was fairly long, but here’s an excerpt from the end: The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense. The Supreme Judicial Court suggested that Caetano could have simply gotten a firearm to defend herself. But the right to bear other weapons is “no answer” to a ban on the possession of protected arms. Moreover, a weapon is an effective means of self-defense only if one is prepared to use it, and it is presumptuous to tell Caetano she should have been ready to shoot the father of her two young children if she wanted to protect herself. Courts should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding. Countless people may have reservations about using deadly force, whether for moral, religious, or emotional reasons — or simply out of fear of killing the wrong person. “Self-defense,” however, “is a basic right.” I am not prepared to say that a State may force an individual to choose between exercising that right and following her conscience, at least where both can be accommodated by a weapon already in widespread use across the Nation. * * * A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds. This Court’s grudging per curiam now sends the case back to that same court. And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self- defense. If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe. I assume that Alito and Thomas are trying to (1) persuade lower courts, both the Massachusetts courts and other courts, that such bans are indeed unconstitutional and (2) to inform them that at least two justices are firmly against such stun gun bans — and the views of the six other justices are unknown, but might also ultimately align with Alito and Thomas, if the matter returns to the Court for full merits review. 6. Alito’s introductory paragraphs also struck me as quite rhetorically powerful — a fine example of the lawyer’s art: After a “bad altercation” with an abusive boyfriend put her in the hospital, Jaime Caetano found herself homeless and “in fear for [her] life.” She obtained multiple restraining orders against her abuser, but they proved futile. So when a friend offered her a stun gun “for self-defense against [her] former boy friend,” Caetano accepted the weapon. It is a good thing she did. One night after leaving work, Caetano found her ex- boyfriend “waiting for [her] outside.” He “started screaming” that she was “not gonna [expletive deleted] work at this place” any more because she “should be home with the kids” they had together. Caetano’s abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. But she didn’t need physical strength to protect herself. She stood her ground, displayed the stun gun, and announced: “I’m not gonna take this anymore…. I don’t wanna have to [use the stun gun on] you, but if you don’t leave me alone, I’m gonna have to.” The gambit worked. The ex-boyfriend “got scared and he left [her] alone.” It is settled that the Second Amendment protects an individual right to keep and bear arms that applies against both the Federal Government and the States. That right vindicates the “basic right” of “individual self-defense.” Caetano’s encounter with her violent ex-boyfriend illustrates the connection between those fundamental rights: By arming herself, Caetano was able to protect against a physical threat that restraining orders had proved useless to prevent. And, commendably, she did so by using a weapon that posed little, if any, danger of permanently harming either herself or the father of her children. Under Massachusetts law, however, Caetano’s mere possession of the stun gun that may have saved her life made her a criminal. When police later discovered the weapon, she was arrested, tried, and convicted. The Massachusetts Supreme Judicial Court affirmed the conviction, holding that a stun gun “is not the type of weapon that is eligible for Second Amendment protection” because it was “not in common use at the time of [the Second Amendment’s] enactment.” This reasoning defies our decision in Heller, which rejected as “bordering on the frivolous” the argument “that only those arms in existence in the 18th century are protected by the Second Amendment.” The decision below also does a grave disservice to vulnerable individuals like Caetano who must defend themselves because the State will not. 7. There’s a stun gun case being litigated now in D.C., and there are similar stun gun bans in New York, New Jersey, Hawaii and Rhode Island, as well as (as of 2009, when I wrote my “Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life,” article) the Virgin Islands, the Annapolis/Baltimore area counties, New Orleans, Philadelphia, Tacoma and several other cities. I expect there will be challenges to some of those laws as well. Connecticut, Illinois, Fargo, and Oklahoma City also ban carrying stun guns, though not possessing them at home; those laws might likewise be challenged. (Caetano herself was carrying a stun gun in public, but neither the Massachusetts ban nor the Massachusetts high court decision distinguished home possession of a stun gun from possession in public, so the Caetano Supreme Court opinion doesn’t decide whether the Second Amendment applies to possessing stun guns — or any other weapons — in public places Poster Comment: The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” and that this “Second Amendment right is fully applicable to the States."
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#38. To: Vicomte13 (#34)
Good question. They are international agreements ratified by our Senate. They are not meant for our civil law and our citizens. If our citizens obtain WMD then do they become an entity under a treaty? Good question I don't have an answer other than it is silly to even consider this. For when we were still without strength, in due time Christ died for the ungodly. For scarcely for a righteous man will one die; yet perhaps for a good man someone would even dare to die. But God demonstrates His own love toward us, in that while we were still sinners, Christ died for us. (Romans 5:6-8)
They are not meant for our civil law and our citizens. If our citizens obtain WMD then do they become an entity under a treaty? Good question I don't have an answer other than it is silly to even consider this. It's silly - and that's why it served a purpose. The 2nd Amendment says "the right of the people to keep and bear arms, shall not be infringed." That's what it says. Nuclear weapons are arms, and the Constitution says in black and white that the right of the people to keep them and bear them shall not be infringed. It's obviously ridiculous, the thought that individuals can have nukes. And so we have, and have always had, without a moment's thought, laws that prohibit the people from keeping and bearing them. It's a no-brainer. It's also unconstitutional. The Constitution, as written, in black and white - read the way that Christians read the Bible - prohibits the government from passing and enforcing any law or regulation that infringes upon your right to keep and bear a nuclear weapon. Now, here the political world bifurcates into "Catholics" and "Sola Scripturalists". Catholics, without a moment's thought, see the dangers in everything nuclear and slap all sorts of laws on and around it. They don't theorize much about it. OBVIOUSLY these things are a gigantic risk. So OBVIOUSLY we have to regulate it and prohibit it, or people will get killed, and that's bad. Because losing cities to nuts is about as bad a thing as can be imagined, we don't let anybody have nukes. The same thing is true of machine guns, based on bitter experience during Prohibition. The "Catholics" would blink in astonishment at the question of where they would get their authority to prohibit people from owning nukes or machine guns. From the fact that people were elected, from the lawmaking power of officials, from common sense. When presented with the text of the Second Amendment, the "Catholics" would say that that was then, but the world has evolved and law has to evolve to reality. The Founders never considered anything like a machine gun, let alone a nuclear weapon. The Sola Scripturalists come from a very different place. Government only has the power granted to it by the Constitution, they say. If the power was not granted to government, then government has no such power. The Founders were great men, they say, American apostles of liberty. They gave us the Constitution, and the Constitution means what they meant when they wrote it. They gave us the ability to amend the Constitution, and that is what we are limited to if we want to change things in it, they say. Congressmen, the President and judges at all levels all take an oath to support and defend the Constitution. Therefore, "necessity" is not an argument for breaking the terms of the Constitution, for the Constitution must be protected inviolate by those who have sworn a sacred oath to uphold it. Now, the Second Amendment says in black and white: "the right of the people to keep and bear arms, shall not be infringed." It isn't vague. There is no qualifying language. "Shall not be infringed" is right there, and it means what it says. If you say I cannot have a nuke, or a machine gun you are infringing on my right to have that arm, and the Constitution says that government has no power whatever to do that. Now, we've always had laws against private nukes, and we've had laws against machine guns for a long time. But with all of the mass killings, there are now laws against semiautomatic weapons also, and laws against handguns, laws that press registration and limitation. And people who want to protect gun rights reply that all of these laws are violations of the 2nd Amendment. And maybe they all are - the Sola Scripturalist constitutionalists like Hondo definitely think so. I start with nukes because it's not silly at all. They're arms. We HAVE TO limit them, but the Constitution says we can't. So, how do we treat our violation of the Second Amendment? The majority does not exist to amend the document. We have to violate it. Do we just violate it, acknowledge we're violating it, and say that some arms are just so powerful that the Founder's rule cannot apply today? This is the "Living Constitution" or "Catholic" approach. Of course, then the question of whether people should have guns at all is on the table, because maybe things have evolved to the point that private firearms ownership needs to change. A "Living Constitution" can be bent any which way. Hard cases make bad law. But we can't take the purist position, because then Hondo can have his nuke. I've given my own suggestion as to where, and how, to draw the line. And I've gotten a lot of guff about it. We've seen Hondo's view: the line is no limits. The nuke question and the answer that it's silly, of course we have to limit nukes, means that you're not a "Sola Scripturalist" constitutionalist. The question is: where should the line be drawn, and one what principle. And as you draw up your position, remember: you have to account for the nuclear question, because it is part of the question of arms. So really not silly at all, when you get right down to it.
I knew your temporary sanity couldn't last., and sure enough, you're back to being a fanatic.. The historical fact is that crazy people have been committing mass murder with ALL sorts of weapons since time began. -- Easy to use guns have become a major factor in preventing such attacks in Israel, -- for instance. -- Admit it.. Bullshit. Sure, machine guns were used by criminals (mostly against other criminals) during our national insanity called prohibition, - but the 'NFA' was passed by a socialistic congress at the urging of a socialistic president primarily because they were afraid of the depression era masses, imo... In other words they ignored our Constitution and made up the power.. Again, bullshit. The founders were well aware of volley guns and grapeshot cannon. The truth is, that vicomte will write most any damn thing to advance his anti- constitutional agenda
Maybe wooden literalism is the term you are looking for. A Sola Scriptura approach to this would apply reason as well. But I understood what you meant. There is a constitutional solution to this. If someone uses a nuke against door knocking ATF in the middle of the night, they will also violate the liberties of their neighbors. For when we were still without strength, in due time Christ died for the ungodly. For scarcely for a righteous man will one die; yet perhaps for a good man someone would even dare to die. But God demonstrates His own love toward us, in that while we were still sinners, Christ died for us. (Romans 5:6-8)
All such distinctions are arbitrary. In fact, single soldiers -- admittedly not the average infantryman, but specially-tasked SEALS and the like -- are widely believed to have already carried nuclear devices in their backpacks, on special covert missions overseas. So the whole rationale of what can be "handled by a single man" will shortly collapse. The main point is this: The federal government has no powers, except those delegated to it by the people. I cannot delegate a power which is not already mine. So how can I delegate to the government the power to build, possess, deploy, yes and even use, nuclear weapons, if I, as an INDIVIDUAL American, do not possess that right, PRIOR to its delegation to government? (Nor do I fully give up a power, when I delegate it. We each retain the right to make a citizen's arrest of a fleeing felon, even though we generally delegate this job to the police.) Around the turn of the century Vin Suprynowicz wrote a series of articles on Nuclear Weapons and the Well Regulated Militia. If you keep following the links both backwards and forwards, you'll eventually get the whole series. No there isn't. Because it would still mean that the guy who uses the nuke against the ATF HAS the nuke to use. And the point is that he MUST NOT HAVE THE ARM AT ALL. The Constitution says that his right to keep and bear arms "shall not be infringed". But it MUST be infringed. The decision whether or not to use the weapon must never, ever be in the hands of some individual. Never. The Constitution says he has the right to bear arms, and draws no lines, because there were no arms anything like that in 1789, but he cannot be permitted to have such weapons. Ever. We must break the 2nd Amendment and absolutely prevent the "test" from happening. We cannot trust that people will responsibly handle nuclear weapons, and "accept" that there will be some casualties - mass casualties - whole city casualties - because somebody does not respect the rights of his neighbors. The Constitution says he has the right, and it says that the right cannot be infringed. The Constitution is unworkable as written. The right MUST be infringed. That requires a constitutional amendment. But we have no such amendment. We must, then, simply violate the Constitution, infringe the right, prevent the weapons from being held, making the attempt to procure such a weapon itself illegal. We cannot uphold the Constitution fully, because the language of the Constitution means that we can't infringe a right that we MUST infringe to survive. And we cannot obey the law and wait until we have amended the Constitution to prevent the acquisition of private nukes. Whether the Constitution is amended or not, no matter what the Constitution says, we must never, ever let individuals have access to the weapons. They have the written right, but they must be prevented, by force, from attempting to exercise that right, because individuals in possession of nuclear weapons is sheer madness that will get us killed. The law fails and the Constitution fails on this matter. We've been systematically and routinely breaking the Constitution on the subject for 71 years, and we must always continue to do so, obviously. Now, it would be NICE if we could get ourselves out of that irregular state by amending the document to make it clear that the right to keep and bear arms can be infringed, and indeed must be infringed, limited, regulated and bound by law. Because it HAS to be. As written you can have a nuke. We cannot respect or follow the Constitution as written on this. The problem with "interpretations" that try to wiggle out of the clear right to possess a nuclear weapon, or any other armament, is that if you can wiggle out of "the right to keep and bear arms shall not be infringed" and turn that absolute language into a "well, except for nuclear weapons, obviously" rule, then you can do that with every other line in the Constitution. And we do that, too. The Constitution has been reduced to a set of guidelines, much to the detriment of the country. But we CAN'T just follow it as written, because it says we can have nukes, and we can't. It's out of the question. So, what is needed is realism: we're breaking the Constitution because we have to. The world has evolved and we cannot have the uninfringed right to keep and bear arms. We can't have nukes and chemical weapons and biological weapons. We can't have machine guns. We can't carry guns anywhere we please. We need an amendment that actually reflects what we have to do. And that means an amendment of the amendment. If we don't do this, then what we will have is nothing, because we're not going to follow the Second Amendment as written: it doesn't work anymore. We're going to just legislate away all of the gun rights, unless we can find a principled basis for line drawing. All rational people already agree that we have to draw the line at WMD, and most people think that we have to draw it at machine guns. But that's been true for a long time. I suppose the law as it stands is workable, but because of the 2nd Amendment, the open exceptions to it, which have been created out of whole cloth, provide the example for ignoring any other constitutional provision when it is expedient.
And there you have it: the 2nd Amendment guarantees the right of Hondo to keep and bear as many nuclear weapons as he chooses. No compromise. No reason. Just an absolute assertion of a right that he cannot, in fact, be allowed to have. This is why gun control proceeds apace. The refusal to be reasonable means that 2nd Amendment advocates are not invited to the table when the decisions have to be made, because they are already known to be utterly unreasonable.
Yes, we did. Because we HAD to. The Constitution says that individuals have the uninfringable right to keep and bear nuclear weapons. And that cannot be permitted. So we have to break the constitutional law and ignore the full reach of the Second Amendment, because we cannot allow the right it protects to be taken that far. It's suicidal. So, how should the 2nd Amendment be amended so as to make it reasonably workable in modern times?
Allowed? The constitution is quite clear, We The People have not allowed the government to infringe upon our God given rights. Sorry Charlie, you lack the authority. You seem to be terrified of freedom, and yearn for a return to those bygone days, when LBJ protected you from Barry Goldwater and those scary libertarian conservatives, by signing the Gun Control Act of '68? It's a huge mistake to trust such important matters completely to government goons. They're not one bit better than the rest of us. The second amendment is an essential counterbalance, and arms parity or better is a vital component. Congress has the ability to limit funding for gov arms, so it's possible that We The People might be better armed than the paid military. So we can have nukes, but the military might not. In other words you fanatics ignored our Constitution and made up the power... Sorry , but our Constitution protects our rights from fanatical minority/majority schemes - like those you advocate. Read much? I've told you previously: --- Our constitution doesn't need amending, -- it needs govt officials to honor their oaths, to protect/defend, - and to write/enforce ONLY reasonable, constitutionally based regulations. We must vote out the political fanatics like you, --- who insist that they have the power to prohibit damn near anything, or any behavior..
It's obviously ridiculous, the thought that individuals can have nukes. And so we have, and have always had, without a moment's thought, laws that prohibit the people from keeping and bearing them. It's a no-brainer. It's also unconstitutional. https://supreme.justia.com/cases/federal/us/554/570/opinion.html http://www.supremecourt.gov/opinions/boundvolumes/554bv.pdf District of Columbia v Heller, 554 US 570 (2008) From Heller at 581: Heller at 582: Heller at 584: Heller at 620: Heller at 624-25: We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. Heller at 626: Heller at 627-28:
Heller will not be good law if Hillary is elected.
Discussing nukes as personal weapons is bizarre. Sorry if I have no interest in participating in such nonsense.
For when we were still without strength, in due time Christ died for the ungodly. For scarcely for a righteous man will one die; yet perhaps for a good man someone would even dare to die. But God demonstrates His own love toward us, in that while we were still sinners, Christ died for us. (Romans 5:6-8)
It's a line-drawing exercise. They're arms. The language of the 2nd Amendment covers them. The 2nd Amendment doesn't say personal weapons. It says arms. I'm not really interested either. frankly. There's no reasonableness on the matter, and there's no reasonableness on a great number of other matter. The right has become ossified in certain positions. Hard, unyielding, irrational, and indefensible. Trump is the last hope the Right has of changing course into something more reasonable. I think they're going to band together to rob him of the nomination. Which means that Hillary wins, and stacks the Supreme Court, and theoretical discussions of the Second Amendment are done. A liberal court will interpret the 2nd Amendment to nothing. And that will be that.
Utter nonsense retard talk. Sorry but it is.
Damn. We used the same word. We must be right.
It also says "bear". What does that mean?
I see the same outcome
For when we were still without strength, in due time Christ died for the ungodly. For scarcely for a righteous man will one die; yet perhaps for a good man someone would even dare to die. But God demonstrates His own love toward us, in that while we were still sinners, Christ died for us. (Romans 5:6-8)
It also says "bear". What does that mean? Your nuclear missile equipped drone is cleared for take off! You get to decide which arms you wish to bear, not some tyrant. Well I'll just pay a visit to the Fort Sill museum and procure atomic Annie.
For when we were still without strength, in due time Christ died for the ungodly. For scarcely for a righteous man will one die; yet perhaps for a good man someone would even dare to die. But God demonstrates His own love toward us, in that while we were still sinners, Christ died for us. (Romans 5:6-8)
https://supreme.justia.com/cases/federal/us/554/570/opinion.html http://www.supremecourt.gov/opinions/boundvolumes/554bv.pdf District of Columbia v Heller, 554 US 570 (2008) From Heller at 581: Heller at 584: Black's Law Dictionary, 6 Ed. It you can't take it in your hands as a weapon, it is not arms. If it is unlawful to possess, it is not protected by the Second Amendment, e.g. a sawed-off shotgun.
Until 2017, when Hillary Clinton's nominee sits on the Supreme Court. Then a series of 5-4 decisions will shape a new meaning of the 2nd Amendment, and it won't look anything like the old rules. We're going to have a whole series of "West Coast Hotels".
The Constitution has never given Congress the power to write a 'law' that declares a sawed off shotgun 'unlawful to possess'. All govt officials must honor their oaths to protect/defend, - and to write/enforce ONLY reasonable, constitutionally based regulations/laws. We must vote out the political fanatics,--- who insist that they have the power to prohibit damn near anything, or any behavior..
You may have tyme to edit/retract that silly BS. It is probably the most stupid statement you have performed, chan.
Absolutely true. Spot on. Congress has no power to write a law that declares a sawed-off shotgun 'unlawful to possess'. Or a nuke.
The Congress decided otherwise, the President concurred, and the U.S. Supreme Court confirmed the lawfulness and constitutionality of the law that was enacted. It has been the law since the English common law was brought forth by the colonists into the United States.
Read the SCOTUS opinion in Heller or Black's Law Dctionary. Heller at 625: Black's Law Dictionary, 6 Ed.
This is a series of suppositions, not the least of which is Hillary getting elected. The actual law, as it stands, is as I have stated it and quoted it from SCOTUS and Black's Law Dictionary. The pre-existing right that was protected by the 2nd Amendment never extended to weapons that were not allowed by law. http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp Blackstone's Commentaries on the Laws of England Book the First - Chapter the First: Of the Absolute Rights of Individuals
Read the US Constitution (in brief): Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States ...
Of course you know that Blackstone's Commentaries have never been more than persuasive authority in the US.
The Constitution has never given Congress the power to write a 'law' that declares a sawed off shotgun 'unlawful to possess'. And it's been contested ever since despite the objections of gun grabbing fanatics, like you.. National Firearms Act of 1934 The first attempt at federal gun-control legislation, the National Firearms Act (NFA) only covered two specific types of guns: machine guns and short-barrel firearms, including sawed-off shotguns. It did not attempt to ban either weapon, but merely to impose a tax on any transfers of such weapons. Despite these limitations, it led to a precedent-setting U.S. Supreme Court decision. In the 1930s, the United States faced a run of much-publicized gangster violence, led by such well-known criminals as John Dillinger, al capone, Baby Face Nelson, and Bonnie and Clyde. The sensationalistic aspect of their crimes convinced the administration of President franklin d. roosevelt that something needed to be done to control the spread of weapons into the general population. U.S. Attorney General homer cummings and his staff began the process of drafting recommended legislation that would achieve this goal.Cummings and his staff quickly determined that, rather than ban weapons and run afoul of the Second Amendment, they would try to tax such weapons out of circulation. As originally proposed, the NFA covered a fairly broad range of weapons, but as passed by Congress, it's scope was narrowed to cover only "A shotgun or rifle having a barrel of less than eighteen inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun." The statute levied a $200 tax on each firearm defined as above, for any transfer involving the firearm. The tax was to be paid by the transferor, and to be represented by appropriate stamps to be provided by the commissioner. It was declared unlawful for anyone to sell or receive a firearm in violation of this section, and they could be fined $2,000 and imprisoned for up to five years for violating it. While the $200 tax does not seem like much in current dollars, it represented a very large amount in 1934—in many cases the tax was more than the cost of the firearm itself. The act also required dealers of the listed firearms to register with the federal government, and also required for firearms sold before the effective date of the act, that "every person possessing a firearm shall register, with the collector of the district in which he resides, the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept, and place of business or employment, and, if such person is other than a natural person, the name and home address of an executive officer thereof." The NFA did not inspire as much controversy in 1934 as gun-control acts do today, in part because of the general public perception that crime was out of control and in part because anti-gun-control groups such as the National Rifle Association (NRA) did not have nearly the strength or Lobbying power they would later have. In fact, the NRA formed its legislative affairs division, a precursor to its powerful lobbying arm, in 1934 in belated response to the NFA. Nevertheless, the NFA did result in several lawsuits claiming the law was unconstitutional, one of which reached the Supreme Court.
Excellent post but give a link for those researching your position.
Just as you know that when the Supreme Court cites Blackstone as authority for its opinion, its opinion explicitly based upon Blackstone is authoritative. Heller at 593-95: And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145–146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833). There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.
So it as been contested. It has never been overruled. You do not have to like it.
You are entitled to your opinion and may even throw a tiny fisted tantrum. Heller remains good law. Deal with it.
The holding in a Supreme Court opinion is binding. The dictum binds for as long as THAT court is sitting there to enforce it. If Trump wins, Heller will remain good law for a long time. If Hillary wins, Heller will be gone with the wind within two years.
The USSC U.S. v. Miller (1939) is no shrine for the US citizenry (as you think) since Heller was largely built on a distant, trivial and silly stump of dawg piss.
Buck's dawg piss is no response to a SCOTUS opinion.
Judicial Supremacy Has Its Limits The Court’s decisions are not binding on the executive and congressional branches. By John Yoo — July 6, 2015 - National Review ---- the Supreme Court cannot finally determine any fundamental constitutional dispute. Claims of judicial supremacy have appeared before, ranging from the odious (Dred Scott’s defense of slavery) to the courageous (Brown v. Board of Education’s condemnation of segregation). But these views mistake the Court’s right to decide cases or controversies under the Constitution for supremacy in its interpretation. Many of our greatest leaders have understood that, in a self-governing republic, the people and not the courts must settle fundamental constitutional issues. President Abraham Lincoln, for example, believed that Dred Scott only decided a controversy between two parties before the court and could not bind the president and other officials. “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court,” Lincoln wrote in his first Inaugural Address, “the people will have ceased to be their rulers.” Instead, the people will have “practically resigned their government into the hands of that eminent tribunal.” Lincoln was right: the Civil War, not the Supreme Court, resolved the question of slavery. While the Constitution does not grant the federal courts the final word, it implicitly gives the courts a right to interpret the Constitution. As Chief Justice John Marshall famously observed in Marbury v. Madison, which established the power of judicial review, “it is emphatically the province and duty of the judicial department to say what the law is.” When judges confront a case where one side relies on a federal statute and the other on the Constitution, they must choose the Constitution as the higher law and put aside the act of Congress. The judiciary’s power to interpret the Constitution derives from its responsibility to decide cases and controversies under federal law. But the Constitution does not vest the courts with the exclusive right to interpret its meaning. It nowhere says that the Court’s reading of the Constitution bears superiority over the other branches of government. As Thomas Jefferson wrote to Abigail Adams in 1804 to explain his decision to drop existing prosecutions under the Sedition Act, “nothing in the Constitution has given [the judiciary] a right to decide for the Executive, more than to the executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them.” Indeed, the separation of powers means that the legislature and the executive also must interpret the Constitution in the course of performing their own unique functions. Congress should not pass bills that violate its understanding of the Constitution; the president should not sign bills that violate his. Rather than give any one branch the final word, the Constitution creates three branches that can compete over its meaning. The separation of powers means not only that the President, Congress, and the Supreme Court are separate, but that they are also independent of one another. According to Jefferson, “the opinion which gives to the judges the right to decide what laws are constitutional, and what are not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make the judiciary a despotic branch.” — John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. A former Bush Justice Department official, he is the author, most recently, of Point of Attack: Preventive War, International Law, and Global Welfare (Oxford 2014).
Oh ... the complete bravery that you possess to suggest that you agree with SCOTUS, case after case after case. Ever read Miller; your revered Heller decision is based on it.
#39. To: redleghunter (#38)
Good question. They are international agreements ratified by our Senate.
#40. To: Vicomte13 (#39)
The real problem with bearing arms is that crazy people commit mass murders with semi-automatic weapons on a semi-regular basis. They do not do this because of angst about gun rights. They do it because they are crazy, and they can easily access multiple-shot, easy-to-use guns.
Because losing cities to nuts is about as bad a thing as can be imagined, we don't let anybody have nukes. The same thing is true of machine guns, based on bitter experience during Prohibition.
(The 'socialists') would blink in astonishment at the question of where they would get their authority to prohibit people from owning nukes or machine guns. From the fact that people were elected, from the lawmaking power of officials, from common sense.
When presented with the text of the Second Amendment, the ("socialists") would say that that was then, but the world has evolved and law has to evolve to reality. The Founders never considered anything like a machine gun, --
#41. To: Vicomte13 (#39)
The nuke question and the answer that it's silly, of course we have to limit nukes, means that you're not a "Sola Scripturalist" constitutionalist.
#42. To: Vicomte13, regleghunter, tpaine (#39)
But Which Arms Do We Have The Right To 'Keep And Bear'?
More On nuclear weapons and The 'well-regulated militia'
This is the sort of thing that made NRA gun grabber heads explode at Free Republic, back in the day.
"We (government) need to do a lot less, a lot sooner" ~Ron Paul
#43. To: redleghunter (#41)
There is a constitutional solution to this. If someone uses a nuke against door knocking ATF in the middle of the night, they will also violate the liberties of their neighbors.
#44. To: hondo68 (#42)
#45. To: tpaine (#40)
In other words they ignored our Constitution and made up the power...
#46. To: Vicomte13, LBJs great society, GCA 68 (#44)
Just an absolute assertion of a right that he cannot, in fact, be allowed to have.
"We (government) need to do a lot less, a lot sooner" ~Ron Paul
#47. To: Vicomte13 (#45)
Yes, we did. Because we HAD to. The Constitution says that individuals have the uninfringable right to keep and bear nuclear weapons. -- And that cannot be permitted. So we have to break the constitutional law and ignore the full reach of the Second Amendment, because we cannot allow the right it protects to be taken that far. It's suicidal.
So, how should the 2nd Amendment be amended so as to make it reasonably workable in modern times?
#48. To: Vicomte13, redleghunter (#39)
The 2nd Amendment says "the right of the people to keep and bear arms, shall not be infringed." That's what it says. Nuclear weapons are arms, and the Constitution says in black and white that the right of the people to keep them and bear them shall not be infringed.
Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.
We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’ ”
“In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
#49. To: nolu chan (#48)
#50. To: Vicomte13 (#43)
#51. To: redleghunter (#50)
#52. To: Vicomte13 (#43)
We must break the 2nd Amendment and absolutely prevent the "test" from happening. We cannot trust that people will responsibly handle nuclear weapons, and "accept" that there will be some casualties - mass casualties - whole city casualties - because somebody does not respect the rights of his neighbors.
#53. To: redleghunter (#50)
nonsense.
#54. To: Vicomte13 (#51)
The 2nd Amendment doesn't say personal weapons. It says arms.
#55. To: Vicomte13 (#51)
#56. To: A K A Stone (#54)
"We (government) need to do a lot less, a lot sooner" ~Ron Paul
#57. To: hondo68 (#56)
#58. To: A K A Stone (#54)
It also says "bear". What does that mean?
Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).
At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.
Arms. Anything that a man wears for his defense, or takes in his hands as a weapon.
#59. To: nolu chan (#58)
(Edited)
It you can't take it in your hands as a weapon, it is not arms. If it is unlawful to possess, it is not protected by the Second Amendment, e.g. a sawed-off shotgun.
#60. To: nolu chan, Vicomte13, Y'ALL (#58)
If it is unlawful to possess, it is not protected by the Second Amendment, e.g. a sawed-off shotgun.
#61. To: nolu chan (#58)
It you can't take it in your hands as a weapon, it is not arms. If it is unlawful to possess, it is not protected by the Second Amendment, e.g. a sawed-off shotgun.
#62. To: tpaine (#60)
The Constitution has never given Congress the power to write a 'law' that declares a sawed off shotgun 'unlawful to possess'.
#63. To: tpaine (#60)
The Constitution has never given Congress the power to write a 'law' that declares a sawed off shotgun 'unlawful to possess'.
#64. To: buckeroo (#61)
You may have tyme to edit/retract that silly BS. It is probably the most stupid statement you have performed, chan.
We therefore read Miller to say only that the Second amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.
Arms. Anything that a man wears for his defense, or takes in his hands as a weapon.
#65. To: Vicomte13 (#59)
Until 2017, when Hillary Clinton's nominee sits on the Supreme Court.
5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.
#66. To: nolu chan (#64)
Read the SCOTUS opinion in Heller or Black's Law Dctionary.
The US Supreme Court exceeded their authority.
#67. To: nolu chan (#65)
#68. To: nolu chan (#63)
The Congress decided otherwise, the President concurred, and the U.S. Supreme Court confirmed the lawfulness and constitutionality of the law that was enacted.
It has been the law since the English common law was brought forth by the colonists into the United States.
#69. To: tpaine (#68)
#70. To: Vicomte13 (#67)
Of course you know that Blackstone's Commentaries have never been more than persuasive authority in the US.
By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.
#71. To: tpaine (#68)
And it's been contested ever since despite the objections of gun grabbing fanatics, like you..
#72. To: buckeroo (#66)
The US Supreme Court exceeded their authority.
#73. To: nolu chan (#70)
(Edited)
#74. To: nolu chan (#72)
You are entitled to your opinion and may even throw a tiny fisted tantrum.
#75. To: buckeroo (#74)
The USSC U.S. v. Miller (1939) is no shrine for the US citizenry (as you think) since Heller was largely built on a distant, trivial and silly stump of dawg piss.
#76. To: Vicomte13, nolu chan, Y'ALL (#73)
The holding in a Supreme Court opinion is binding.
#77. To: nolu chan (#75)
Buck's dawg piss is no response to a SCOTUS opinion.
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