Lawyers, Guns and Money (Supreme Court May Have To Define Second Amendment)

Harvard Law Bulletin ^ | Summer 2007 | By Elaine McArdle

[fight_truth_decay]

If the ''people'' were not to bear arms the amendment would have said:

''A well-regulated militia, being necessary to the security of a free state, the right of the militia to keep and bear arms, shall not be infringed.''
-To the Editor

[Gritty]

[SandRat]

2nd Amendment PING

[Dark Wing]

fyi

[Radio_Silence]

I could do without the SCOTUS review. I don’t think we’d get the votes due to Kennedy. Combine a ruling against 2A with the possibility of a dem controlled congress and presidency in ‘09 and I’d prefer to just take a pass.

Hard to believe that Republicans have had the presidency for 19 of the past 27 years and we cant get 5 pro-2A votes on the Supreme Court. Even harder to believe that we still debate this collective right BS.

[MrEdd]

On the other hand, maybe the people will define to the government the meaning of the second amendment.

[xzins]

I continue to think that “well regulated” means adequately organized and equipped. Also, I think that the militia is everyone able to fight in a crisis.

To do that, they need to be able to bring a gun.

The above is an exact picture of late 1700’s America. Calling forth the militia is essentially telling the farmers to put down their hoes and to pick up their guns.

The 2d amendment points out both the individual and the national interest in having armed citizens. Self-defense is a God-given right, AND it is useful for free nations.

[Radio_Silence]

Agree with everything you said.

My concern is that if SCOTUS rules against the decision using the “collective right” argument then the floodgates of gun control will be open as every anti-2A dem in govt will be yelling that we have no need for private ownership as we already have a National Guard.

[Lurker]

Once you recognize [gun ownership] as an individual right, then the work shifts to figuring out what type of regulation is permissible,” he says.

Exactly none.

L

[xzins]

There are a number of reasons why the National Guard cannot be the militia, but the one that strikes me is that they are permanently under the DOD. It is permanently provisioned by the DOD....states don’t buy tanks, jets, and missiles. Congress has it in the budget, so it is part of the standing army.

The “militia” would be more like the “draft.” (Incidentally, I support the draft, and think all this foolishness about “individual rights violated by a draft” is so much hogwash. If the situation is so dire that the militia must be called forth, then it’s our free nation or Donnie Draftdodger’s individual rights that’s the choice. I’ll choose a free nation any day.)

[TalBlack]

Bottom Line: How is the phrase “the people” defined in any OTHER amendments in which it appears?

[Raycpa]

“My conclusion came as something of a surprise to me, and an unwelcome surprise,” Tribe said in a recent New York Times interview.

A liberal professor is surprised his preconceptions about something are not supported by the facts? I assume before this he was content in having an opinion without any basis. These folks teach our young adults?

[Raycpa]

Which group of people were the Bill of Rights for again? I forget.

[facedown]

The meaning of the second amendment is a mystery only to lawyers for whom the meaning of the word “is” was equally mysterious.

[Ogie Oglethorpe]

Tribe is at least intellectually honest enough to admit his position does not line up with that of the FRamers, which puts him ahead of 98% of liberals.

[snowsislander]

In the past 20 years, several prominent legal scholars known for liberal views, including Professor Laurence Tribe ’66, have come to believe that the Second Amendment supports the individual-rights view. In the 2000 edition of his treatise “American Constitutional Law,” Tribe broke from the 1978 and 1988 editions by endorsing that view. Other liberal professors, including Akhil Reed Amar at Yale Law School and Sanford Levinson at the University of Texas at Austin, agree.

I am glad to see that Professor Tribe has endorsed the plain reading of the Second Amendment.

Now I would very much like to see the 1934 NFA and the 1968 GCA struck down as unconstitutional infringements on the rights guaranteed by the Second Amendment.

[tpaine]

"-- Should the case reach the Supreme Court, Tribe told The New York Times, "there's a really quite decent chance that it will be affirmed."
If that happens, Tushnet says, it is unlikely to end all gun regulation, because the Court would probably tailor its decision narrowly to reach consensus.

"Once you recognize [gun ownership] as an individual right, then the work shifts to figuring out what type of regulation is permissible," he says.

My concern is that if SCOTUS rules against the decision using the 'collective right' argument then the floodgates of gun control will be open -

The Court is not that politically stupid. Such a 'collective' decision would incite massive civil disobedience, akin to booze prohibition.
They will settle instead for the idiotic theory that 'regulations' can prohibit, - supposedly without infringing.

Then the work shifts, as Tushnet says, to proving that legislators in the USA have no delegated power to prohibit.

[EdReform]

"The Second Amendment is one of the clearest statements of right in the Constitution. We've had decades of sort of intellectual gymnastics to try to make those words not mean what they say."

-- Benjamin Wittes, legal affairs analyst and guest scholar, Brookings Institution

[tpaine]

The Court will settle instead for the idiotic theory that 'regulations' can prohibit, - supposedly without infringing.
Then the work shifts, as Tushnet says, to proving that legislators in the USA have no delegated power to prohibit.

"-- Also important, says Tushnet, is the fact that because Parker emanates from the District of Columbia, where only federal law applies, it doesn't involve the overlaying question of whether the Second Amendment applies to a state by way of the 14th Amendment — a question that clouded an earlier case involving one city's complete ban on handgun possession.
He adds that a number of states urged the Court not to take that case, and the solicitor general did the same in another one. --"

If our individual right is acnowledged, States like California are SOL with their unconstitutional prohibitions/infrigements. - Bet on it.

And, - bet that there will be a massive behind the scenes fight urging the Court not to hear Parker.

[fight_truth_decay]

THE SECOND AMENDMENT IS ALREADY DEAD
By David Brownlow
July 19, 2005
NewsWithViews.com

Brownlow writes in part:

“Once we allowed our government to arbitrarily define the term “arms” as strictly limited to a few select types of rifles and pistols, we cleared the way for the regulation of gun style, gun size, gun caliber, gun rate of fire, barrel length, magazine capacity, as well as the explosive power of the shells, the type of projectile that can be launched from our “arms,” and on and on. In other words, we gave up any chance of a putting up a real fight against our occupiers when we allowed the occupiers to make up the rules. “

“But that is only half the problem. While we have permission to “keep and bear” what is essentially a 21st Century version of a muzzle loader, our federal and local police forces have been arming themselves to the teeth with the most advanced weapons and technologies our money can buy.”

“Sure, most of us can still hang onto our rifles, shotguns, and depending on where we live, our handguns – which gives the false impression that we have a 2nd Amendment that actually protects our right to keep and bear arms. But, if we are only allowed to keep the guns they tell us we can keep, and if we are only allowed to carry them the way they tell us we can carry them, then, that is not a right, that is not a guarantee - that is a favor.”

“It would be more accurate to call it, “The permission to keep and bear the arms.” (2nd Amendment, Rev. A)”

http://www.newswithviews.com/Brownlow/david43.htm

Food for thought...