SCOTUS and the 2nd Amendment

[Aguila Blanca]

The Supreme Court has decided NOT to hear any of the pending 2nd Amendment cases before it.

https://bearingarms.com/cam-e/2020/0...uIrnp56nE2RtJ4

This is unfortunate ... or maybe not. We know that four of the justices have signaled that they would like to see clarification of the 2nd Amendment. We also know that the liberal bloc would like nothing better than to make the 2nd Amendment disappear. I believe it might have been possible for the pro-2A group to have forced the issue on some of these cases, so what this may signal is that they didn't think those cases were strong enough to persuade the swing vote -- which, at the moment, is likely Roberts.

This is why we really REALLY need to see Trump get the opportunity to appoint at least one more originalist, strict constructionist justice. I'm not asking for someone who is a pro-gun activist. I would just like to see another justice in the mold of Scalia, whose philosophy was to follow the law where it went, even if he didn't particularly like where it went. That's supposed to be the role of a judge -- to interpret and to apply the law. The role of writing laws belongs to the legislative branch.

[raimius]

Sadly, I think Roberts' attempts to look non-partisan to protect the image of the court are backfiring. By trying to make the law fit into politics, he is debasing the law.

It is sad that one party is so openly hostile to core parts of the Bill of Rights...and even worse that the courts are willing to pretend the Constitution doesn't say what is written.

[zukiphile]

The importance of control of the power to nominate is indisputable. It is likely that Breyer and Ginsberg will persist on the bench for fewer than another four years. I'm a fan of Thomas' jurisprudence, but I am afraid that with the weight he carries, he may leave the bench within the next presidential terms too.

[OuTcAsT]

There was some dissension in the ranks : https://www.westernjournal.com/supre...qxLSxGW8AlOYw8

[Tom Servo]

This is why we really REALLY need to see Trump get the opportunity to appoint at least one more originalist, strict constructionist justice.

The problem is, what if that's not what he gives us?

Remember, John Sununu promised that Justice Souter would be a "home run for conservatism," yet he voted against us in Heller and McDonald.

[zukiphile]

Originally Posted by Tom Servo

The problem is, what if that's not what he gives us?

That was my anxiety, and the anxiety of many others, before Leonard Leo got the commitment to the list. I still didn't believe DJT would follow through, but we've gotten Gorsuch and Kavanaugh so far. History isn't a guaranty of future performance, but there does seem to have been a demonstration of good faith on the issue of justices.

Originally Posted by Tom Servo

Remember, John Sununu promised that Justice Souter would be a "home run for conservatism," yet he voted against us in Heller and McDonald.

In the history of disappointments, Souter shines like no other. The people who vetted him believe that he knowingly deceived them about his philosophy. Once on the bench, Souter complained about having to do the work.

I may disagree with Ginsburg on most matters, but at least she is transparent and wants to be there.

[RC20]

I don't weight in too often, my view is the issues are framed wrong and you can't figure out why the result comes out.

One basic aspect is that people seem to be clear on the law, from their side. If it was that clear we would not have Courts for law review.

A great deal of this has to do with the fact that none of those people (Supremes) live int he real wrold. Its all this philsopial stuff that they then impose on the law (be it liberal, conseravie etc). I was fond of Garland as he seemed to ahve that rare ability to be real (no matter what side things fell on).

another justice in the mold of Scalia,

Scalia hob nobbed with the same people who he was making rulings on, went to hunting ranches and trips that wealthy people paid for. Massive to total conflict of interest (of which the Supremes exclude themselves from)

I have seen rulings that the so called logic was bent up twisted like a pretzel, self defeated by their own words and they could still believe it. Lala land, Ivory tower.

So you have out ot touch conservatives, out of touch liberals.

So lets look at Eminent Domain as a non left or right issue. Clear to me and most people, if you build a public piece of infrastructure (school, roads) then you can force the owner to sell it (often attempted at low ball and not fair market value)

So when a city decided to build a hotel (collect more taxes than the homes that were there) the so called conservatives held that was just fine. No, it had nothing to do with the law and all to do with power structures and abuse of peoples rights.

Then through in something like the 2nd amendment. World wide the Bill of Rights is lauded as the finest statement of individual rights vs the state.

Except the 2nd amendment. That is not deemed god given or simply inalienable right, the US is the only country that has it in the constitution.

Why? Because the US Constitution had framers who had a wide array of ideas on a better method of governance. The recent revolution was paramount in some minds and
how to keep government from doing what KG was doing.

Some of those ideas worked well, some like the agreement that slavery was acceptable despite All Men Are Created Equal. That of course left women out and those who did not have wealth and property.

The Supreme court with a split of views does not know what to do with the 2nd Amendment. Its not clear itself. Bckgound wise Militias were viewed at the time as a counter to government going off the rails.

Relity is like some of the rest that was found not to work.

At this point I don't see any use or even expresion that the 2nd amendane was to be used to protect other rights (freedom of the press, religion, assembly etc)

Its now simply justified for and by itself.

And the reality is that its the one right that was written that is in defense of the others not itself. The others stand alone as their own inalienable rights.

So, many of the things that did not work have fallen. Slaves no longer allowed (3/5 of a human being) - women have the right to vote, all people have the right to vote, Senators are now elected not Legislative appointed.

More guns have not made us safer overall regardless of the rare case of an individual defending themselves. I suspect in another 50 years the 2nd will join the parts of the Constitution that simply were wrong.

Probably in 50 years we will have a diverse and representative court as well, not old white guys (of which I am one) who are there to defend big businesses and rich people.

[raimius]

RC, the 2nd states what the goal of protecting the RKBA is--"...the security of a free state."
Providing the people access to arms meant that the government, bully, or invader, however tyrannical they wanted to become, would not have the sole vote.

As to your contention that guns don't make society safer, what evidence do you cite that would counter the DGU estimates (~100k from the antis, and a cluster in the 700k-2million range)?

[Aguila Blanca]

I hate acronyms -- especially those that don't have any official source or recognition.

Raimius, are we to assume that "DGU" is an acronym for "Defensive Gun Uses (per year)"?

[5whiskey]

Sadly, I think Roberts' attempts to look non-partisan to protect the image of the court are backfiring. By trying to make the law fit into politics, he is debasing the law.

I wholeheartedly agree with this. The same with Kennedy before. In trying to use, at times, semantics (it’s not a tax it’s a fine) to ensure that certain laws are upheld (or overturned) it becomes obvious that the intent is to make that ruling go a certain way long standing legal principle be damned. I get the feeling that Roberts (and Kennedy before him) feel their cause is noble. I can understand their sentiment, but at the same time I believes it furthers the way overblown view that the court is overly political (many of their cases are unanimous, and Much more is made of the partisan split than actually is).

It is sad that one party is so openly hostile to core parts of the Bill of Rights...and even worse that the courts are willing to pretend the Constitution doesn't say what is written.

Both parties have been quite hostile to certain aspects of the bill of rights over the years. No party has a monopoly on that stat. Today it’s Democrat’s and gun control, yesterday it was republicans and anti flag burning laws violating the first amendment. Just so it’s clear I am vehemently opposed to flag burning. But publicly disposing ones property by burning to make a statement is freedom of speech. If you really want to be impressed, read the late Justice Scalia’s (God rest his soul) comments in Texas v Johnson... especially what he said in November 2015.

I really like Clarence Thomas’ jurisprudence. I also believe he will decide based on what is right based on legal principle, not on personal feelings or political beliefs. Heck even the notorious RBG occasionally does as well.

[RC20]

Any time something does not work you should look back at how its framed, not stay in the weeds.

At issue is when each and every time the Court comes down on the side of corporation and wealthy people, then its not jurisprudence, its protecting the power structure they are part of. What we get on the edges is crumbs.

There is nothing whatsoever in the Constitution about a corporation being a human being but a conservative power biased faction has so ruled. Now you depend on those same people to protect what you want but you are not the power structure. Society Cannon fodder (work, pay taxes so the uppers have their privileges)

By pure legal logic slavery was enshrined int he constitution (if a slave is 3/5 of a human being you have to have slaves to make that have relevance). No justice ever argued that it contradicted all men are created equal. They stuck with the power structure not the spirit. Nor did it change over time. One took a war and the other an amendment.

Guns threaten the power structure (the revolution being based on it) why would they want to bring that up? Its contradictory to what they believe.

The debate is now gun rights for self defense vs gun rights for defense from a tyrannical government.

What takes down government is not guns, its a populace simply refusing to do what they have been told (yes it takes large numbers) - or to put it another way, gun have taken down governments and the result is a dictatorship.

The US did not avoid that by its institutions or the Constitution, it avoided that by the incredible nature of the thinking founders as flawed as they were. Washington set the tone with two terms and no more.

So the 2nd will alwyas be viewed as threatening to the power hungry and those who maintain it.

Its as flawed as who got to vote originally (property and money, then in the UK women got to vote if they had property)

The 2nd needs to be either eliminated and or changed to a license system with safeguards to keep guns out of the hands of those who.

Driving horses did not morph into anyone could drive because it was not in the Constitution as no one ever thought it had any relevance (like breathing)

Driving is a privilege that requires certain skills, passing of tests, training, insurance. Einstein is quoted as saying the definition of insanity is doing the same thing over and over again and expecting a different result. The 2nd does not work and does not do what it was thought to do (and taken out of context).

The Constitution is an amazing document produced by an amazing group of men (and not one woman!) who did not know what they had created. As amazing as those men were, they were not close to perfect, it reflected the flaws of the day (horrible in the case of Slavery) but no one question today that all people have a right to vote (when in fact a very select few had that right originally)

[RC20]

Justice Scalia’s (God rest his soul) comments in Texas v Johnson

And how did he vote on Corporations becoming citizens ?

Burning a flag does not threaten power structures.

Money talks, so my talk is a grain of sand on the beach of a corporation, let alone thousands of them.

[raimius]

Aguila, yes my reference to "DGUs" was for defensive gun uses.

RC, are you saying that because an armed populus threatens established power structures, we should eliminate the civil right to keep and bear arms? Seems an odd series of arguments to me.

[5whiskey]

The debate is now gun rights for self defense vs gun rights for defense from a tyrannical government.

What takes down government is not guns, its a populace simply refusing to do what they have been told (yes it takes large numbers) - or to put it another way, gun have taken down governments and the result is a dictatorship.

Guns and cannons quite literally ended British rule in the colonies, resulting in a new nation that we know of as the United States. It’s not a dictatorship either! Portugal and México also changed significantly from armed revolutions. There actually is a long list of successful armed revolutions that deposed, not instilled, dictatorships. They are usually most successful when a foreign power intervenes on behalf of the revolutionaries, like France did for us and like we did for Mexico. That foreign governments influenced successful revolutions doesn’t negate that armed conflict among the populace was successful.

The 2nd does not work and does not do what it was thought to do (and taken out of context).

It is difficult to measure how well the 2nd works. How many government decisions have been influenced by the knowledge that, if the decision was unpopular enough, armed resistance and bad press may ensue? We’ve seen one very recent example of a state government backing down from what looked like a sure-to-pass AWB. I’m sure thousands of protestors marching peacefully with those same weapons to be banned, knowing that many of whom would not comply but are otherwise peaceful citizens, was hard to ignore in the decision process. It sure is hard to have that type of pressure without an armed populace. And the US government has a long history of oppressive and cruel acts. Many good acts as well, and I believe our nation is better than most at “trying to get it morally right.” But, we still placed Japanese Americans in internment camps during ww2. We slaughtered native Americans in the name of manifest destiny. We told black Americans they couldn’t vote, could be bought and sold as property, only counted as 3/5ths a person, couldn’t go to the same schools or eateries as others. No government is perfect. I prefer to have a means in which to resist it should time and circumstance deem it proper to do so. The Federalist 46 very clearly indicates that an armed populace and state governments controlling their own militia is meant to give the citizens means to overthrow an oppressive federal government. People can say that the 2nd amendment wasn’t intended to ensure a means to overthrow an oppressive government until they’re blue in the face, but they will still be wrong.

[44 AMP]

People can say that the 2nd amendment wasn’t intended to ensure a means to overthrow an oppressive government until they’re blue in the face, but they will still be wrong.

I don't think they are wrong, in fact, on the surface, they are technically correct, sort of...

OF course, I look at it a bit differently than many. The 2nd Amendment is simple, despite all the arguing. It prohibits (shall not) the FEDERAL government from interfering (infringe) with the citizens right to arms.

It grants NOTHING to the citizen, that they do not already possess, simply by being citizens (natural rights), it is a check on the authority of government.

Yes, ONE of the things you can do with arms is defend yourselves, from physical attack. Doesn't matter if the attacker is a beast, or a robber, rapist, murderer, and it doesn't matter if they are in organized groups and paid by the government.

Doing that is up to you, and up to "We, the people".

What takes down government is not guns, its a populace simply refusing to do what they have been told (yes it takes large numbers)..

Please show us the list of governments that have been "taken down" WITHOUT the use of guns. And do note the difference between a government voluntarily changing and one being "taken down".

[zukiphile]

Originally Posted by RC20

And how did he vote on Corporations becoming citizens ?

Scalia never voted in any case to make corporations citizens.

The Citizens United decision didn't make corporations citizens. No one who read the decision can think it did.

[RC20]

Can look at that any way you want to, but it granted corporation the same right as I have, except money talks and more money talks bigger.

It actually gave them more rights.

[RC20]

Please show us the list of governments that have been "taken down" WITHOUT the use of guns. And do note the difference between a government voluntarily changing and one being "taken down".

India, Tunisia, Ukraine, Egypt. Various in Eastern Europe.

Interesting if the 2nd is a natural right then its not required in the constitution, though all the rights were listed and are considered natural.

No other country has determined that, but democracies have determined the rest are.

German, France, UK, Australia, Japan, etc firm democracies without it.

Difference is that English law goes by precedent and tradition and the tradition carried down.

Still goes back to Scotus and the mistake of conservative and what its all about.

Conservative is a power structure maintainer, and the conservatives you get for those appointments are out of the Eastern Ivory towers.

No Westerner, let alone one that has dug ditches. All carefully vetted by the rich and powerful. Careful feedings to maintain the illusion.

[zukiphile]

Originally Posted by RC20

Can look at that any way you want to, ...

Including the wrong way, which you are doing. Your signature line might provide an insight into the validity of your assertion.

Originally Posted by RC20

…but it granted corporation the same right as I have, except money talks and more money talks bigger.

It actually gave them more rights.

Again, I would encourage you to read the decision, just as I encouraged you to do when we discussed this on September 5, 2018.

Also, the law challenged by Citizens United, McCain-Feingold, included criminal penalties. Corporate officers can answer for a corporation's criminal acts.

One of the issues presented in Citizens United is whether the federal government can charge a person with a crime for having said or written something in cooperation with others with whom he has associated in a corporation. Aside from the threat of a federal criminal record, the mere threat of federal prosecution for having spoken or written is chilling and runs afoul of the 1st Am.

RC, I will not tell you that the decision in Citizens United is a breezy read, but I would encourage you to give it a try. What people displeased with a decision write about it is routinely irreconcilable with the decision itself. You've no obligation to conclude that the Court reached the correct result in any particular case, but reading the case can make you a more discriminating consumer of secondary materials.

People associated by means of a corporation have a right to speak and publish without threat of federal prosecution.

That doesn't grant a corporation citizenship. It observes the explicit prohibition of the 1st Am. which McCain-Feingold violated as a law made by Congress "abridging the freedom of speech or the press".

The dissent included arguments about why abridging peoples' speech when they've associated in the form of a corporation would be a swell idea, but none of that is based in constitutional language. A jurisprudence that disregards an explicit prohibition on Congressional power because a justice thinks he has a better idea is a raw expression of power.

If you are worried about a "power structure maintainer", you should be more wary of a jurisprudence that usurps the power to modify by implication the basic law of the country.

[44 AMP]

Interesting if the 2nd is a natural right then its not required in the constitution, though all the rights were listed and are considered natural.

The 2nd Amendment is not a right. It mentions the right of the people to keep and bear arms as something the govt "shall not infringe".

The natural right here is the individual's right to self defense. With such arms as they choose and possess. This is covered under the idea of LIFE, Liberty, and pursuit of happiness. Defending your life is Contstutional, even though there is no specific clause stating that.

The rights listed in the Bill of Rights are NOT all the natural rights we have, and the 9th Amendment specifically states not all rights are specifically enumerated in the Constitution.

German, France, UK, Australia, Japan, etc firm democracies without it.

Firm democracies today....in the past they have been ruled by monarchies, dictators, emperors, and democratic rule.

The United States is a country unique in the world, and the fact that other nations, including democracies and republics, do not have a portion of their ruling documents that specifically forbids their governments from infringing on certain human rights bothers me not a bit.

I see no reason to do what the rest of the world does, just because they think its a good idea, TODAY. I might choose to, or not, depending on if I agree. That's covered under the "Liberty" idea.

Do not confuse the fact that we have failed on too many occasions to live to the ideals of the Founders, with the idea those ideals are flawed. That's is a different matter.

[Aguila Blanca]

Originally Posted by 44_AMP

Do not confuse the fact that we have failed on too many occasions to live to the ideals of the Founders, with the idea those ideals are flawed. That's is a different matter.

Didn't Ben Franklin address that, back in the day?

At the close of the Constitutional Convention of 1787, Franklin was queried as he left Independence Hall on the final day of deliberation. In the notes of Dr. James McHenry, one of Maryland’s delegates to the Convention, a lady asked Dr. Franklin “Well Doctor what have we got, a republic or a monarchy.” Franklin replied, “A republic . . . if you can keep it.”

http://www.whatwouldthefoundersthink...ou-can-keep-it

If we fail to live up to the ideals set forth in the founding documents, it means that we will have failed to keep it {the republic], as cautioned by Benjamin Franklin.

Looking around today, mu y opinion is that we are failing massively, and have been for a number of years.

[Bartholomew Roberts]

RC20 wins the ironic signature of the forum award.

[Wallyl]

IMHO the SCOTUS, which supposedly is there to uphold the constitution, has reneged on its' duty & responsibility to do just that. Take the 2nd amendment---the language is quite clear.....SHALL NOT BE INFRINGED yet politicians pass illegal & unconstitutional laws that violate the amendment.....they swore an oath to abide by the constitution. By passing illegal laws they have violated their oath and should forfeit their office. The whole Judicial & legislative system is a pure fraud, as they knowingly & wantonly violate the constitution & Bill of Rights. When parties petition the court to rule on violations of the 2nd amendment, they have repeatedly declined to take to review the same. Absolutely unacceptable and is indicative to me that they should be removed

[Aguila Blanca]

This forum discussion area is called "Law and Civil Rights" for a reason. It's a place to discuss laws and civil rights ... not politics.

[5whiskey]

I don't think they are wrong, in fact, on the surface, they are technically correct, sort of...

OF course, I look at it a bit differently than many. The 2nd Amendment is simple, despite all the arguing. It prohibits (shall not) the FEDERAL government from interfering (infringe) with the citizens right to arms.

It grants NOTHING to the citizen, that they do not already possess, simply by being citizens (natural rights), it is a check on the authority of government.

Yes, ONE of the things you can do with arms is defend yourselves, from physical attack. Doesn't matter if the attacker is a beast, or a robber, rapist, murderer, and it doesn't matter if they are in organized groups and paid by the government.

Doing that is up to you, and up to "We, the people".

44amp I understand what you are saying and where you are coming from. I also do not disagree with you, other than it is not realistic to believe that absent the bill of rights that we would be allowed to possess modern firearms today. We also would likely see press and religion regulated, unreasonable government searches, and a number of other government overreaches. As a matter of fact, we have already seen all of this. I agree philosophically that these are natural rights. In all practicality, for us, they are granted rights. Don’t believe it? Read up on law enforcement tactics used in the gangster era of al Capone and other bootleggers, BEFORE most of the bill of rights had been incorporated to apply to state and local governments. Federal agents frequently interacted with local law enforcement to do the “dirty work” of interrogation and searches in that era because the bill of rights was largely viewed to not apply to the states. Sadly it was rather common for state and local law enforcement to search homes and businesses without a warrant or even probable cause prior to the Mapp Decision in 1961.

So philosophically the bill of rights are natural human rights. Realistically it is a list of things the government can not do to us. Practically, it is something that we can thank the framers, with input from anti-federalists, for guaranteeing. And like it or not, courts are instructed to consider and give weight to the intent of the legislature in questions of statutory law, and to the intent of the framers in questions of constitutional law. Fortunately the framers actually left behind a significant amount of material that documented their thoughts and reasoning. The most prevalent argument offered to the reasoning behind protecting the right to arms in the writings of the framers is, in fact, to provide for the common defense via militia. Almost every framer that wrote any content to the subject also supposed that an appropriate use of militia would be armed resistance to a despotic government, should circumstances necessitate such.