>That’s a willful misinterpretation of the 2nd amendment that has been specifically rejected by the Supreme Court.
It was the correct interpretation of the 2nd Amendment as supported by the Supreme Court for two centuries until they changed their mind in 2008, and even then four justices dissented.
What the Constitution says and what Constitutional rights exist and in what form comes down to the subjective interpretation of the court, and as history has shown, even recently, that opinion can turn on a dime.
>It’s also contrary to many state constitutions, which provide an even more definitive individual, affirmative right to bear arms.
Those constitutions were either updated after Heller or else were unconstitutional prior to 2008.
> At least in the United States, sadly that ship has sailed as SCOTUS precedent repeatedly emphasizes the 2nd Amendment as a purely individual right.
With the current court, yes, but that interpretation only dates back to 2008. It would be much less of a reversal than we just saw for a future court to find that Heller was decided in error, and unlike Alito’s pretense of research there’s far more historical precedent supporting the collective interpretation going back at least as far as what the people drafting the second amendment discussed when they did so, as well as two centuries of general agreement on that point.
> You may disagree with the constitutional basis for the decision and wish the second amendment to be abolished, but the decision was well stated and solid.
The decision, as written by the late Scalia, to create an individual right bears no resemblance to any historical or legal precedent. Acting as amateur linguist and etymologist, it is ironic that Scalia, a so-called Originalist, ignores the original meaning of the terms in the amendment.
>The supreme court has ruled that the second amendment protects an individual's right to own guns and that right cannot be removed by states.
That's what we discussed. Given what the constitution says, that ruling is BS.
The law and supreme courts are politics --not some clean, divine, body that comes with only just rulings.
"Liberty and justice for all", for example, if I'm not mistaken, was in there from the beginning, but the courts could not give a rats ass for slavery, segregation, etc, until they were forced to by popular protests.
So, that 2/3 of the congress is not much consolation either.
Right, except for all the reasons it was outlined to be exactly that for 240 years before you came along to say it wasn’t. Perhaps try the Federalist Papers, Jefferson, and Adam’s writings on the topic.
You are free to disagree all you like, you are within all rights to call a majority decision wrong and the opinion of weasel words… your feelings change nothing.
The militia argument is completely dead. 2A is an individual right. End of story until that decision is overturned. You are 13 years late to be upset over it.
>Do you think every Supreme Court, since the founding (gun regulation is that old), was wrong about gun regulation and the Constitution, and this particular Supreme Court was right?
It's worth noting here that past cases before the Court referenced the idea that blacks could be allowed to carry fire arms if citizenship (pre-civil war) was interpreted more broadly, and that that fact was a reason to restrict it. So, yes, the Court has certainly erred in the past ... multiple times. 2A has been recognized as an individual and enumerated right for a long time. It's somewhat an invention of modern media that it isn't an individual right, and lots of people have been summarily gaslit into thinking it has something to do with membership in a (state run) militia.
I was very clearly referring to the fact that if the 2nd amendment were to be taken as an intent to allow citizens to revolt against the government then it is not clear on what grounds the seemingly absurd corollaries of that, as a legal position, would be dismissed. Which you haven't addressed at all except to say "but it's not actually precedent yet!"
It is not - because the Supreme Court has very obviously in Heller not interpreted it that way. So I don't know of what value anyone can argue this was the intent because the body defining the law of the land and the interpretation of the constitution does not agree with you.
But even if we grant the SC is not the be all and end all, you still haven't managed to actually address why that position would be absurd? What use are firearms against a Federal government which, to take an extreme example, gives itself Dune-style shields for all officers and personnel, but not civilians. Why are limits on arms, actually suitable to overthrow the government - so say, maybe a whole lot of Javelin anti-tank missiles as they are currently proving useful - not within the remit of the 2nd?
> There have been only two amendments to the U.S. Constitution over the past 50+ years
Did you know the US Constitution and Bill of Rights was massively altered in 2008 without a two-thirds majority of Congress nor any majority of the States legislatures?[1] In fact, this is so, and it was done pretty much by one man ironically abandoning his own career-long ideology of strict constitutional interpretations with an argument entirely based on, figuratively speaking, bullshit. We know what the Founders intended because we have the minutes of the Constitutional Congress in which the Founders debated whether to include a right of self-defense in the 2nd, and this was intentionally left out. "Because most Americans believe something," is not a rational nor strictly legal means of altering the US Constitution, and, in fact, the notion floated then was not true. (Prior to 2008 most Americans did not believe the 2nd included an implicit right of self-defense... only the gunnutters pushed that garbage. Most Americans actually knew the truth, that the 2nd concerns militias.) Regardless of this mistake (or lie), this man somehow single-handedly changed the 2nd from a self-less right to protect one's neighbor from tyranny, to a selfish right to protect your television. This... after the (continuing) suspension of habeas corpus and the 5th earlier in that decade.
Changing the Constitution (what's left of it) is easy.[2]
[2] I may be cynical, but I'm also pretty angry about it, and it doesn't help that no one seems to care or notice that our beloved Constitution has been screwed with.
> Originally yes, the constitutional amendments only applied to the federal government, but that changed with the 14th amendment.
No, it didn't. The Court has, since the Fourteenth Amendment, found that rights equivalent to some protections in the Bill of Rights are imposed on the States through the Due Process Clause of the 14th Amendment, but each of these rights was incorporated by separate decisions; blanket incorporation is neither in the text nor in the case law. And the Second Amendment wasn't held to be incorporated against the states until 2 years after Heller, in a case directly leveraging Heller, so arguing incorporation to justify the obviousness of Heller is...bizarre.
> I strongly disagree. I see this current court having extremely low legitimacy engaged in naked power grabs
Your disagreement doesn't have any effect on reality.
Care to back up your claims with actual evidence?
> stricken down a fifty year precedent
Is it somehow bad to strike down old precedents, regardless of content?
> told a state that they can’t enact their own concealed carry act
Is it somehow bad to tell US states that they can't do things that would violate the US constitution, which is explicitly meant to apply to all states?
> obtuse society-wrecking
Translation: "these rulings don't agree with my political positions" (so I'm going to use language that conceals my preference to suggest that they're bad).
> They shall go down in our childrens history as villains.
Not a constructive addition to the conversation, smells of emotional manipulation.
> Scalia really put the historical scholarship work in on that one
I'm afraid not, and not by a mile. He based his decision on his unfounded and unsupportable belief that most Americans believed that self-defense was inclusive to the 2nd, based on nothing but what he thought, and he was wrong, because most Americans are not idiots, but even if he was right (which he definitely was not), the Supreme Court is not and not supposed to be a democratic institution swayed by the whims of alleged popular opinion.
In considering the 2nd Amendment, the Framers debated self-defense and intentionally left it out of the Amendment. Scalia knew this, being a strict Constitutionalist, probably personally reviewed the minutes of the Constitutional Congresses where it is very clear the Framers did not want self-defense inclusive to the 2nd. They did not want an armed citizenry. The 2nd only concerns militia and tyranny. The proper exercise of the 2nd looks exactly like Black Panthers surrounding the Alameda County Courthouse in Oakland, California in 1968. It does not look anything like Florida (and elsewhere) Stand Your Ground nonsense, nor Texans shooting kids in the back.
What Scalia did was criminal, bastardizing the 2nd, changing it from a selfless right to stand against tyranny into a selfish right to protect self and property. Self-defense is far more fundamental than the Bill of Rights and is superfluous there. If the right of self-defense comes from any document, it would be one far, far older than the Constitution. But it's really a natural right, older than writing, older than language. Self-defense transcends our species and is a right of all living things. The Bill of Rights does not give us rights we already have and have had since long before we even evolved into humans.
And self-defense was completely skew and unrelated to the issues of DC v. Heller. That portion of DC v. Heller will be struck down, eventually, as soon as its challenged under a balanced court, because Scalia stepped way, way beyond the bounds of the mandate of the Supreme Court to interpret the Constitution, instead literally adding meaning that was never there before, sidestepping the legal methods of amending the Constitution aka 2/3rds majority of both houses of Congress or state legislatures.
Scalia vandalized, gutted and diluted the 2nd Amendment. Prior to 2008, the 2nd was noble and great. After DC v Heller, it is worthless. DC v. Heller is just another assault on the Constitution, just like the suspensions of habeas and the 5th Amendment.
Gun owners don't need the 2nd Amendment. Hunters never did. The 10th Amendment was always where (nearly all) gun owners' gun rights derived and still do, through legislation by the States, as the Framers intended, abiding by the first 3 words of the 2nd Amendment, put right up front to underscore their importance, and that every gun owner loves to ignore or lie about their clear and literal meaning. The 2nd limits itself and allows the 10th to legally cement what has become a dirty word: regulation. "Shall not be infringed" was placed last, making it less important than and subject to regulation. And commas are important, and it is easier to understand the 2nd removing the clauses between them:
A well-regulated Militia shall not be infringed.
The "right of the people to keep and bear Arms" is "a well-regulated Militia and necessary to the security of a free State." Before Heller, and after that portion is struck down when the Court is inevitably balanced again, no personal right to bear arms existed nor will exist, respectively, except what the States grant under the 10th Amendment.
> The Constitution was clearly written by people fearing a new tyrannical government (see 2nd amendment).
Alright quick pet peeve: First off I agree that the constitution was specifically written to make it hard for a dictatorship and or tyrannical government.
But my pet peeve is: You cannot use the 2nd amendment as an example of that. It was written four years later and by almost a completely different set of people.
> This is just incorrect. Before the 14th amendment the bill of rights did not apply to states.
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding."
I forgot about that brief time before the civil war when states felt like they could pick and choose which parts of the Constitution applied to them. Why do you think it only applies to the bill of rights, though?
I find it darkly humorous that it took an amendment to the Constitution to really drive home that the Constitution actually applies to everyone in the US. That seems like a bit of circular logic, but at the point of a gun it worked.
Imagine if states could just choose that the second amendment did not apply to them today. Ha!
> That argument might actually hold up with the current originalist Supreme Court. It's worth pursuing. There are upsides to constitutional originalism. There's no reason the Fourth Amendment shouldn't be taken as literally as the Second.
You are confusing originalism with textualism (there is an argument that the current Court’s dominant philosophy [or mode of rationalization, for the more cynical] is both originalist and textualist, but your particular argument is more of an appeal to textualism than originalism.)
> The supreme court does change their mind about things, as the Heller decision demonstrates.
Heller was not a change of mind by the supreme court (it ruled on a different matter to previous rulings -- which had explicitly skirted around the problem of civilian ownership of weapons outside of a military context).
However, even if it were a change of mind -- the supreme court changing its rulings is an incredibly rare event because such events question the finality and authority of their decisions.
Hence why I said "the only way to change their decision would be through a constitutional amendment" -- because waiting for the supreme court to change their mind about it (while technically possible and sometimes the case) is hardly a useful policy position for a political argument.
> I do know that some legal scholars say the 2nd Amendment is poorly worded... Language is nuanced, intent is nuanced, and there are a ton of gray areas.
Can I ignore or rewrite the 14th amendment because I find it confusing?
> I do know that views on how the Constitution should be interpreted have changed over time.
Yeah, people started ignoring parts they weren't comfortable with and finding new parts in prenumbras.
Your argument boils down to, "I don't know, everyone. There are a lot of gray areas, so we better just agree to do what I want."
> The Constitution you took an oath to defend includes a mechanism for altering it, which is why we no longer have chattel slavery, why women can vote, why we vote for senators, why we have a federal income tax, and why we have presidential term limits, all of which contravene consensus principles among the founders.
Sure. If people want to amend the Constitution to get rid of the second amendment, have at it. I’m not talking about attempts to amend the Constitution or argue in favor of such amendments.
But you don’t have to amend the constitution to whittle the second amendment (or any other constitutional principle) down to nothing as a matter of practice. (Look how we’ve created a fourth branch of government, the largest of them all, without ever amending their constitution.) And if you can’t reference “here’s what the people who wrote this thought ‘the right to bear arms’ meant and why it’s important,” than you enable whittling it down to nothing.
> because to survive, it has to establish that "fuck the beliefs of these old dead white guys" is a uniquely disruptive idea, when in fact it's an idea we've had over and over again throughout our history.
It’s always been a terrible idea, and it scares me every time it mutates into a new and terrible form. Civilized countries don’t work this way. You routinely hear ad hominem attacks on federalism whenever it gets in the way of some attempt to impose nationwide rules. But we’re hardly the only federal republic. Somehow, Canada and Germany manage to take federalism seriously. They don’t give it lip service, they give it due weight. And they manage to govern while accommodating federalism concerns instead constantly re-litigating such a foundational concept.
> we have roughly one amendment every 5-10 years after WWI until the seventies.
> And then suddenly that stops for 42 (so far) years.
I missed this earlier, but you've got your facts wrong. The last ratified amendment was the 27th in 1992, or 21 years ago. The 26th was 21 years before that in 1971.
> Is the text about well regulated militia needed for security still relevant when you have professional huge standing army ?
The Wikipedia page has a lovely summary of Judge Scalia (and originalist) contorting himself to pieces over it. It would be entertaining if it weren't law.
> Indeed, except for the first bit being a dependent clause.
I'm not sure exactly what you're saying. This line implies you think it is not a dependent clause but later you say it is...? Also, what is the impact you're implying?
But anyways, the only actionable piece of the 2nd is "the right shall not be infringed".
> And behind that is some politics: our Founders were supremely suspicious of standing armies [...]
Rightly so. But the original reasoning behind the laws aren't the laws. For better or worse.
It's been acknowledged that people have this right (to keep and bear arms) and you cannot take rights away.
For instance, we can't reinstate slavery, even with another amendment. It's not like the 13th amendment made it illegal; the amendment forced the government to acknowledge that it does not have that power and cannot enact slavery - those orders would be illegal.
A vote to repeal the 13th would be unconstitutional in its very nature because it recognizes a right. Unlike repealing the 18th establishing prohibition, for example.
It was the correct interpretation of the 2nd Amendment as supported by the Supreme Court for two centuries until they changed their mind in 2008, and even then four justices dissented.
What the Constitution says and what Constitutional rights exist and in what form comes down to the subjective interpretation of the court, and as history has shown, even recently, that opinion can turn on a dime.
>It’s also contrary to many state constitutions, which provide an even more definitive individual, affirmative right to bear arms.
Those constitutions were either updated after Heller or else were unconstitutional prior to 2008.
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