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Old April 11, 2014, 10:57 AM   #1
Glenn E. Meyer
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Justice Stevens - bye bye to the 2nd as we know it.

http://www.washingtonpost.com/opinio...y.html?hpid=z2

The Justice basically says our interpretation of the 2nd is baloney. He echoes a point that I made - Scalia, the gun rights genius to some, really left open myriad ways to control guns. Sorry to some who claimed Scalia was a wily old bird laying the ground work for new pro gun decisions.

He proposes a new 2nd that removes all gun rights:

Quote:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”
I can see why some were very reluctant to take gun cases to the SCOTUS, we could have had 4 to 5 removing the constitutional protection.

I also think we cannot think that all the cases now brewing will lead to decisions that will produce a golden age of gun rights.
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Old April 11, 2014, 11:17 AM   #2
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Ok. So, a retired judge writes a book and advocates a number of fundimental changes to the basic workings of the country. Incl the above change to the wording of the 2nd

Im not seeing this as an event. All gun owners understand the thought process of a large portion of the politicians and judges. Nothing new here

What is the actual legal process for actually changing the wording of the bill of rights? I cant imagine that being done without the masses agreeing

Or could this be done with a sweep of the pen?
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Old April 11, 2014, 11:24 AM   #3
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Quote:
What is the actual legal process for actually changing the wording of the bill of rights? I cant imagine that being done without the masses agreeing

Or could this be done with a sweep of the pen?
The wording of the BoR can not be changed. A new amendment would need to be passed. The process for which is outlined in the Constitution.

You should read it. (Not being a jerk, everyone should read it)
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Old April 11, 2014, 11:26 AM   #4
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There is a well defined mechanism for amending the Constitution. Civics class - anyone?

Is it likely - probably not.

It is useful to see the thinking of court members. Remember that slim majorities can institute major changes. That's why it counts to see how present and past members view the issue.

Recall that Justice Berger - a conservative thought the 2nd was baloney.

We forget that many progun folks thought that Scotus cases were a terrible risk. We just made it this time.
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Old April 11, 2014, 11:55 AM   #5
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I don't see the hysteria.

The militia has been defined as every able-bodied person, so we're all serving in the militia all the time anyways.

From the Heller decision, quoting Miller:

Quote:
2. Prefatory Clause.

The prefatory clause reads: “A well regulated Militia, being necessary to the security of a free State … .”

a. “Well-Regulated Militia.” In United States v. Miller, 307 U. S. 174, 179 (1939) , we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources.
Ergo, I can haz my full-auto w/suppressor right now, according to Stevens.
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Old April 11, 2014, 11:57 AM   #6
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You don't see the hysteria because there isn't any. Geez - it's informational.
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Old April 11, 2014, 12:12 PM   #7
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a. “Well-Regulated Militia.” In United States v. Miller, 307 U. S. 174, 179 (1939) , we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources.
Does that mean the 2nd amendment doesn't apply to women because they can't be a part of the militia?
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Old April 11, 2014, 12:25 PM   #8
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I agree with speedracer...

So then I just need to join my state/county/local/neighborhood militia, and then I get to have all the Class3 stuff I want because it's for duty... and we all know that the militia is always on duty, so I'd need to have instant access to it, not only in my home, but to carry it around with me at all times.

Heck, we could all probably get the state/county/whatever to start paying for our ammo in order to train!
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Old April 11, 2014, 12:44 PM   #9
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Quote:
Originally Posted by speedrrracer
...The militia has been defined as every able-bodied person, so we're all serving in the militia all the time anyways...
Quote:
Originally Posted by SamNavy
...So then I just need to join my state/county/local/neighborhood militia, and then I get to have all the Class3 stuff I want because it's for duty... and we all know that the militia is always on duty,...
I wouldn't count on it. But give it a try and let us know how it works out.
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Old April 11, 2014, 12:46 PM   #10
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Ergo, I can haz my full-auto w/suppressor right now, according to Stevens.
So, no worries, because the 2A applies to... oh... 15, 20% of the population?

Only anyone too young, too old, too infirmed, too female need not apply?
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Old April 11, 2014, 01:00 PM   #11
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As near as I can tell it's not "all able-bodied men". 10 U.S. Code § 311 has an age limitation of 17-45, limit it to men who are, or have declared an intention to become a US citizen, and females who are citizens (but not specifically including those who have declared an intention to become one like the men) AND in the National Guard.


Apparently, a woman who has declared her intention to become a citizen, and joins the Guard as a permanent resident isn't in the Militia of the United States. While it's probably between hard and impossible to find such a person, I find the loophole entertaining.
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Old April 11, 2014, 01:03 PM   #12
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Ergo, I can haz my full-auto w/suppressor right now, according to Stevens.

Only if Congress determines that all of us who "qualify" running around between call-ups that never happen are currently "serving" in the militia. You did notice that bolded add-on right? He limited it to militia WHEN serving.
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Old April 11, 2014, 03:30 PM   #13
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"Well regulated militia" could also mean members would have to store all their privately purchased firearms in the local National Guard armory, etc. So being a member of the militia means nothing when it comes to gun rights.
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Old April 11, 2014, 04:15 PM   #14
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I share Glenn's view of Scalia's decision in Heller. I'm not sure I agree with Glenn on the motive -- in fact, I don't know if Glenn expressed a motive. I sort of think that Scalia wrote his majority decision the way he did because he needed to keep Kennedy on the side of pro-2A. That said, the verbiage declaring all existing anti-gun laws a "presumptively legal" and then stating that the RKBA is subject to "reasonable" regulation (it does NOT say that in the 2A) did not do us, the 2A, or the RKBA any favors.

Thus, as a consequence of Scalia not being able to interpret "shall not be infringed" to mean "shall not be infringed," we are now stuck with "reasonable regulation" and years and years of court cases to determine what's "reasonable" and what's not.
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Old April 11, 2014, 04:42 PM   #15
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His amendment would simply lead to a new slogan: "A Militia of one".

Missouri would quickly make them legal.
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Old April 11, 2014, 05:00 PM   #16
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There were two problems in Heller. The first problem is that you needed to get five votes. I am not so sure that Justice Kennedy was the swing vote for that matter. In any case, you had to write an opinion that was as restrictive as that fifth Justice wanted it to be - or at least could be legitimately read that way (although it perhaps could be read other ways as well).

The second problem is that even with a well-planned attack, you are going to have 100 Frank Millers for every Dick Heller or Otis McDonald. Giving the lower courts an easy way to dispose of those Miller cases - a way that in fact encourages those lower courts to dispose of those cases offhandedly without doing a proper analysis of scrutiny isn't actually a bad thing in my view.

We were always going to be stuck with years and years of court cases to determine reasonable regulation. The problem is, I think RKBA activists (I know I did) expected that when a good plaintiff and case did reach the appellate courts, they would listen to the arguments and actually apply intermediate scrutiny instead of continuing to pass the buck and rubber stamp the lower court. And except for a few cases so far, that hasn't happened a lot. Even where courts are pretending to apply intermediate scrutiny they are either finding it "outside the core right" and subject to rational basis or they are doing rational basis analysis and calling it "intermediate scrutiny."
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Old April 11, 2014, 05:45 PM   #17
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I worry more about the next supreme court judge to be nominated. So many of our rights we enjoy are only one vote away from being taken from us. It certainly does not help what the "honorable" Stevens has written, but the short cut to change is to go from 5-4 to 4-5. Before I get pounded, the "honorable" part was sarcasm.
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Old April 11, 2014, 06:50 PM   #18
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We aren't worried about former Justice Stevens. We just hope Ginsberg retires before Scalia.
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Old April 11, 2014, 06:55 PM   #19
Brian Pfleuger
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Quote:
Originally Posted by Aguila Blanca
That said, the verbiage declaring all existing anti-gun laws a "presumptively legal" and then stating that the RKBA is subject to "reasonable" regulation (it does NOT say that in the 2A) did not do us, the 2A, or the RKBA any favors.

Thus, as a consequence of Scalia not being able to interpret "shall not be infringed" to mean "shall not be infringed," we are now stuck with "reasonable regulation" and years and years of court cases to determine what's "reasonable" and what's not.
That "presumptively lawful" phrase didn't strike me as particularly bothersome. In fact, I assume (I could be wrong) that the concept is an underpinning of our entire system. In other words, are not ALL standing laws "presumptively lawful" until and unless they are struck down? Otherwise, all laws would be unenforceable until a court unheld them, as the only other possible choice would be "presumptively UNlawful".
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Old April 11, 2014, 07:27 PM   #20
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Quote:
First, it applied only to keeping and bearing arms for military purposes,
Citation needed for "only". Mr. Stevens appears not to have read the briefs from Heller.

Quote:
and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.
The 14th Amendment is such a pain, isn't it?

Quote:
For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.

Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”
Is that so? For more than 100 years the federal government had better things to do than try to ban guns. I don't think law enforcement 100 or even 50 years ago was anything like it is today. There was no Terry doctrine. Police harassed undesirables with near total impunity. There was a lot more looking the other way in other cases. There were also fewer law enforcement per capita. Now Mr Stevens apparently wants police to harass everyone with impunity, because the only way to detect and prohibit gun carry and ownership is by violating the 4th amendment.

The statement of Miller is disgustingly misleading.

Quote:
When I joined the court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities. During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything.
As there was a time when judges wouldn't have suggested that any of the BoR were incorporated. Progress, Mr. Stevens. It doesn't march on exclusively to the drumbeat of your own ideals.


It's truly embarrassing that he couldn't come up with better propaganda than that. A bunch of whining ("nobody would have written Heller decades ago!"), mis-stating history, and an hollow call to amend the constitution.
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Last edited by tyme; April 11, 2014 at 07:32 PM.
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Old April 11, 2014, 07:28 PM   #21
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Quote:
Originally Posted by noelf2
Does that mean the 2nd amendment doesn't apply to women because they can't be a part of the militia?
Same thing as "all men are created equal" -- it would include women and all the various permutations

Quote:
Originally Posted by Frank Ettin
But give it a try and let us know how it works out.
Right after Stevens succeeds with re-writing the 2A, we're on it, and we'll post our results here

Quote:
Originally Posted by Brian Pflueger
So, no worries, because the 2A applies to... oh... 15, 20% of the population?

Only anyone too young, too old, too infirmed, too female need not apply?
The female thing I already addressed, and the too old, etc thing -- it just says you have to be "physically capable of acting in concert" -- so, if you can, if there was ever a need for the militia to be called up, act in concert with the militia for the common defense, then you're GTG. Well, the militia will need cooks and it will need people on comms and doctors whatever else it will need -- you have to be able to show up and physically do those things. Doesn't say you have to be able to 10 pullups or storm a hill.

OTOH, if you're on life support, then OK, you're out.

Quote:
Originally Posted by JimDandy
Only if Congress determines that all of us who "qualify" running around between call-ups that never happen are currently "serving" in the militia. You did notice that bolded add-on right? He limited it to militia WHEN serving.
Sure, and conveniently didn't define serving, so it becomes a chicken-and-egg thing. Part of service, at least as it applies to such things as the reserve, is "Well, you're not doing anything for us right this minute, but when we need you, we'll call and you have to drop everything and come running." So by the definitions applied to reservists, you don't have to be actively engaged in militia-related activities to be serving -- your readiness / willingness to serve is in fact part of your service.

Quote:
Originally Posted by s3779m
I worry more about the next supreme court judge to be nominated.
Me, too. Towards that end, the coming senate midterm elections are probably the most important thing in the 2A world right now. There are enough seats currently owned by Dems up for grabs that, if we can replace those Senators with pro-2A types, we can at least block Obama / Hillary 's onslaught of anti-2A Justice appointees.
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Old April 11, 2014, 07:39 PM   #22
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Same thing as "all men are created equal" -- it would include women and all the various permutations
You sure of that with the US Code definition of militia linked earlier?
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Old April 11, 2014, 07:46 PM   #23
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Quote:
Originally Posted by speedrrracer
Quote:
Originally Posted by noelf2
Does that mean the 2nd amendment doesn't apply to women because they can't be a part of the militia?
Same thing as "all men are created equal" -- it would include women and all the various permutations
Nope, not the same at all. Have you read the actual language of the Militia Act?

Quote:
Originally Posted by 10 U.S. Code § 311
10 U.S. Code § 311 - Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
Other than female members of the National Guard, where/how does the Militia Act in any way include women in general? In fact, technically it doesn't even include females who are members of the NG but who are not citizens.

[EDIT]Wait ... my bad. I thought your comment was about the militia. Upon a second reading I guess you were applying the 2A to women.

Sorry. I'm taking Remedial Reading 202 next semester.
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Old April 11, 2014, 08:27 PM   #24
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I forget which one of the founders it was (and too lazy to look) but when asked "who are the militia" they answered "it is all the people, absent a few government officials".

I kind of like that one...
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Old April 11, 2014, 09:28 PM   #25
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Quote:
As near as I can tell it's not "all able-bodied men". 10 U.S. Code § 311 has an age limitation of 17-45
Well, yeesh. I've only got a couple more years left to stockpile guns!

The point of Heller is that we got our foot in the door on one important issue: the 2A applies to individuals (sorry, Justice Stevens) and is independent of militia service. That'll be a hard one to reverse in the immediate future.

That said, we need to be somewhat wary of future appointments that could whittle away the contours of the right from the edges in.
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