[EdReform]

Assuming the FR search is working properly, I did not find this posted.

Excerpted due to length.

[PeterFinn]

I’m hoping for the USSC to make a clear ruling against gun control, but I’m expecting them to weasel out of the broader issue by tailoring a narrow ruling limited to either just Washington DC or even only to Mr. Heller himself.

[Pinetop]

Having read the principals’ briefs—I thought that the respondent’s case was persuasive on the interpretation of the preamble and the enacting language. The historical analysis was fascinating. Interestingly, Gura and Levy did not respond to the social policy arguments posed by the petitioner.
This is a Court that does not wade into policy issues nor does it decide issues that it does not need to decide. It has recently in a Justice Kennedy opinion done a painstaking analysis of statutory construction and linguistics. So, I think, on the basis of statutory construction, it will find the D.C. ban unconstitutional. The question is whether there is a bright line as to what guns can be considered included within the meaning of the Second Amendment? That question has been raised.

[umgud]

I won’t confuse what I want the outcome to be with what it may be. I’m on pins & needles and don’t have a prediction.

[rellimpank]

---Another very significant grammatical feature of the Second Amendment is that the operative clause ("...the right of the people to keep and bear Arms, shall not be infringed") is a command. Because nothing in that command is grammatically qualified by the prefatory assertion, the operative clause has the same meaning that it would have had if the preamble had been omitted or even if the preamble were demonstrably false.

Consider a simple example. Suppose that a college dean announces: "The teacher being ill, class is cancelled." Nothing about the dean's prefatory statement, including its truth or falsity, can qualify or modify the operative command. If the teacher called in sick to watch a ball game, the cancellation of the class remains unaffected.--

--excellent analogy--

[EdReform]

Bang

[NewJerseyJoe]

> Heller's position ... is sound but not persuasively argued

When I read that, I knew for certain that Nelson Lund (the author) did not read the DC Court's ruling or any of the amici curiae briefs filed in the last two months....

[Sudetenland]

This was a good argument, right up to the point where he (falsely) asserted that the need of the people to fear an oppressive government has "subsided."

I suggest he ask the citizen-gunowners of New Orleans whether or not we citizens need to fear the oppression of an over-reaching oppressive government.

I will never agree that the founding fathers, were they present today, would choose to restrict civilian access to contemporary military firearms.

The wording of the 2nd Amendment precludes such a test. Equally, I maintain that the 2nd Amendment precludes any right of the government to consider potential criminal behavior in interpreting the 2nd Amendment.

See my tagline.

[robertpaulsen]

"The test suggested in Miller is unworkable when applied to modern gun control statutes ... This test points directly toward protection of standard-issue infantry rifles like the fully automatic M-16 and might even be read to include more lethal weapons like rocket launchers. "

The author want to throw out Miller because the opinion of the court doesn't fit his interpretation of the second amendment. How utterly convenient.

Yeah, the Miller court concluded that only Militia-type arms are protected by the second amendment. Assuming that these arms are only protected for Militia members, the court opinion makes perfect sense.

The author, however, believes the second amendment protects an individual right outside of a Militia. But, when applying Miller, we end up with "an individual right to keep and bear Militia-type weapons like rocket launchers.

Uh-oh. Better scrap Miller.

[robertpaulsen]

"Women, however, have always been citizens and thus part of "the people," "

Wrong! For a PhD, this guy is surprisingly ignorant.

Article I, Section of the U.S. Constitution reads, "The House of Representatives shall be composed of members chosen every second year by the people of the several states ...". In 1789, women didn't vote. They were not part of "the people".

If the author had read the Parker decision (which one would think he had) he would have come across this:

"This proposition is true even though “the people” at the time of the founding was not as inclusive a concept as “the people” today .... To the extent that non-whites, women, and the propertyless were excluded from the protections afforded to “the people,” ...

Embarrassing.

[robertpaulsen]

"The Constitution does not require the Supreme Court to blind itself to that reality or to hold that the civilian population has a right to keep every weapon that the militia can expect to find useful if called to active duty."

BWAHAHAHAHAHA! Throwing a bone to the liberals.

The author goes on and on, twisting and torturing and parsing the second amendment to somehow get it to say what he wants it to say. Thousands of words of explanation and justification and interpretation.

Yet when it comes to the very plain language of the second amendment -- the right of the people to keep and bear arms -- he doesn't understand it. He says, well, that doesn't mean EVERY arm.

Oh, really? Where does it say that? Does his copy of the second amendment say "most arms"? "Almost every arm"?

[Defiant]

its preamble ("A well regulated Militia, being necessary to the security of a free State...") is an absolute phrase. Such constructions are grammatically independent of the rest of the sentence and do not qualify any word in the operative clause to which they are appended. The usual function of absolute constructions is to convey some information about the circumstances surrounding the statement in the main clause.

Another very significant grammatical feature of the Second Amendment is that the operative clause ("...the right of the people to keep and bear Arms, shall not be infringed") is a command. Because nothing in that command is grammatically qualified by the prefatory assertion, the operative clause has the same meaning that it would have had if the preamble had been omitted or even if the preamble were demonstrably false.

Bingo! Case closed, from a logical point of view. The problem is that too many people, including Supreme Court justices, don't understand basic rules of grammar, or, in the case of liberals, don't care because the Constitution is an evolving document.

[TLI]

Tolerable at best I suppose but there was one section that is just plane wrong.

Even more important, a significant gap has developed between civilian and military small arms. Eighteenth century Americans commonly used the same arms for civilian and military purposes, but today's infantry and organized militia are equipped with an array of highly lethal weaponry that civilians do not employ for self-defense or other lawful purposes.

HA! This guy obviously has not been to the rage and looked around. He DANG sure has not done that at a range here in Texas. The usual “array” found there on an ordinary weekend would make Sara and Diane faint on the spot.

[Joe Brower]

[Blood of Tyrants]

In the twenty-first century (unlike the eighteenth), civilians do not commonly use standard military equipment like M-16s.

He is incorrect here. There literally hundreds of thousands (maybe millions) of semi-automatic versions of this rifle in the hands of civilians. A huge number of the owners would LOVE to be able to legally convert them to fire three round bursts or full auto. There are also hundreds of thousands of M-14, and FN-FAL and AK-47 owners who would like to do the same.

[uncbob]

If they take their oath seriously they have to declare an individual right

If they think it needs to be redefined as per modern times then it should be done per the amendment process as laid out by the founders not by a SCOTUS convoluted ruling

[Amendment10]

Although the referenced Heritage Foundation article mentions the 14th A. in conjunction with the 2nd A., it mentions it only in connection with the USSC's so-called selective incorporation, the Court's politically correct idea for interpreting the 14th Amendment. So I'm going to add the Heritage Foundation to the growing list of institutions, mostly news agencies, who are not looking past this politically correct explanation as to how the 14th A. relates to the 2nd Amendment. In fact, most of them aren't mentioning the 14th A. at all.

AP
Herald Sun
U.S.News
Patriot Post
Washington Post
Heritage Foundation
Wikipedia

The truth of the matter concerning the relationship of the 2nd and 14th Amendments is that the same authoritative evidence that shows that the 2nd A. protects our personal freedoms concerning firearms also shows that the USSC's idea of selective incorporation does not hold water, in my opinion.

More specifically, the BoR per se was not what the 14th A. applied to the states as the USSC's idea of selective incorporation leads us to believe.

http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)

(I've added Wikipedia to the above list as another institution that is helping to confuse the purpose of Sec. 1 of the 14th Amendment.)

In fact, not only does the wording of the 14th A. beg the question as to whether or not all of the Constitution's privileges and immunities were applied to the states, but John Bingham, the main author of Sec. 1 of the 14th A., had clarified that it does.

"Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States." --John Bingham, Appendix to the Congressional Globe http://tinyurl.com/y3ne4n

The reason that Bingham emphasized the first eight amendments, the federal BoR, in conjunction with the Constitution's privileges and immunities is because most of these privileges and immunities just happened to be defined in these amendments at the time that the 14th A. was made.

So regardless that the USSC has not yet officially incorporated all the privileges and immunities of the BoR into the 14th A., Bingham not only beat them to it, but had made it clear that all the Constitution's priviliges and immunities were indeed to be applied to the states, not just those in the BoR.

And since Bingham also read the first eight amendments, the 2nd A. included, as examples of constitutional statutes containing privileges and immunities that the 14th A. applied to the states, there is no doubt in my mind that the 2nd and 14th Amendments protect the personal right to keep and bear arms from both the federal and state governments as much as any other constitutional privilege and immunity protects other personal rights.

See the first eight amendments in the middle column of the following page from the Congressional Globe, a precursor to the Congressional Record. The page is a part of one of Bingham's discussions about the 14th Amendment.

http://tinyurl.com/y3ne4n

Note that the referenced page is dated for more than two years after the ratification of the 14th Amendment. So Bingham was evidently reassuring his colleagues about the scope and purpose of the ratified 14th Amendment.

The bottom line concerning D.C. v. Heller is that the 14th A. has already decided this case in Heller's favor. So the reality of the situation is that gun elimination factions need to quit trying to rewrite constitutional history, as evidenced by the ignoring of the 14th A., in order to push their special-interest agenda on everybody. Instead, they need take the initiative to try to lead the states to exercise their Article V powers to amend the Constitution to allow for tighter gun control laws.

[djf]

Today’s the day.

Anybody know how soon we can expect any official releases? Transcripts? Audio?

[Yosemitest]

This weblog for conservative philosophers might help.

---

Deriving Gun Rights from the Right to Life
Posted by Bill Vallicella on March 22, 2005 6:33 PM

I take the view that some rights are logically antecedent to anything of a conventional nature such as a group decision or a constitution. Thus the right to life is not conferred by any constitution, but recognized and protected by well-crafted ones. If so, whether we have the right to life, or any natural right, cannot depend on the interpretation of any document. Therefore, with respect to the question of gun rights, the interpretation of the Second Amendment to the Constitution of the United States, albeit important, is logically secondary. The logically prior question is whether there are natural gun rights that need constitutional codification, recognition, and protection.

Here is a stab at an argument for natural gun rights.

(1) Every human person possesses a right to life.

(2) If a human person has a right to life, then he has a right to defend his life against those who would seek to violate it.

(3) If a human person has a right to defend his life, then he has a right to an effective means of defending his life.

(4) A handgun is an effective means of defending one's life, and indeed, in some circumstances, the only effective means.

(5) Therefore, human persons have a right to possess handguns.

It is easy to see that the conclusion follows from the premises. But are the premises true?

Surely (1) is uncontroversial.

Note that this argument does not assume that every human being is a human person. Saddam Hussein is a human being, but it is arguable that by the commission of his crimes he forfeited his personhood, and with it his right to life.
Some will hold that human fetuses are not persons, and so have no right to life. I believe they are wrong, but the above argument does not rest on the assumption that they are.

To see that (2) is true, consider what happens if you negate it. The negation of (2) is:

(~2) Human persons have a right to life, but they do not have the right to defend their lives.
The absurdity of this is self-evident. How can I have a right to life if it is morally impermissible for me to defend my life?
My having a right to life does not entail any moral obligation on my part to defend my life, but it surely entails the moral permissibility of self-defense. For if I have a right to life, then others have an obligation not to harm me. This obligation of theirs entitles me to meet a deadly threat with force sufficient to thwart the attack up to and including killing the assailant. We appear to be at moral rock-bottom here. I say (2) is self-evident. Reject it, and there is probably no point in further discussion. "You have a right to defend yourself, but no right to the possession of any effective means of so doing."

To will the end is to will the means. So, to will one's defense is to will the means to one's defense. Therefore, if it is morally permissible to will one's defense, then it is morally permissible to will the means to one's defense. I grant that qualifications may be needed.
Arguably, felons ought not have the right to purchase firearms. A felon either forfeits his right to self-defense, or has that right overridden by the community's right to be safe from his predation.

(4) is obviously true pending some obvious qualifications that I left out for the sake of brevity, the soul of wit. A handgun is an effective means of self defense, but not in all circumstances, only if the defender is properly trained in the use of firearms, etc. (as opposed to the individual qua member of some collective such as a police force or military unit) has an individual right to posses firearms for the purpose of defending his own life. The existence of such an individual right does not entail that it is unlimited. Thus if I have a right to firepower sufficient to my self-defense, it does not follow that I have a right to firepower sufficent to lay waste to a city. One non sequitur to avoid is this:

There is no unlimited individual right to keep and bear arms;

ergo, the right to keep and bear arms is a collective right.

Arguments like the foregoing make appeal to people's reason. Like all my arguments, it is directed to open-minded, reasonable people who are doing their level best to form correct opinions about matters of moment.
You decide whether I have been employing right reason. But if you wish to criticize, just be sure that you engage what I have actually written and not something you have excogitated on the occasion of skimming my post.

---

[Yosemitest]

This weblog for conservative philosophers might help.

---

Deriving Gun Rights from the Right to Life
Posted by Bill Vallicella on March 22, 2005 6:33 PM

I take the view that some rights are logically antecedent to anything of a conventional nature such as a group decision or a constitution. Thus the right to life is not conferred by any constitution, but recognized and protected by well-crafted ones. If so, whether we have the right to life, or any natural right, cannot depend on the interpretation of any document. Therefore, with respect to the question of gun rights, the interpretation of the Second Amendment to the Constitution of the United States, albeit important, is logically secondary. The logically prior question is whether there are natural gun rights that need constitutional codification, recognition, and protection.

Here is a stab at an argument for natural gun rights.

(1) Every human person possesses a right to life.

(2) If a human person has a right to life, then he has a right to defend his life against those who would seek to violate it.

(3) If a human person has a right to defend his life, then he has a right to an effective means of defending his life.

(4) A handgun is an effective means of defending one's life, and indeed, in some circumstances, the only effective means.

(5) Therefore, human persons have a right to possess handguns.

It is easy to see that the conclusion follows from the premises. But are the premises true?

Surely (1) is uncontroversial.

Note that this argument does not assume that every human being is a human person. Saddam Hussein is a human being, but it is arguable that by the commission of his crimes he forfeited his personhood, and with it his right to life.
Some will hold that human fetuses are not persons, and so have no right to life. I believe they are wrong, but the above argument does not rest on the assumption that they are.

To see that (2) is true, consider what happens if you negate it. The negation of (2) is:

(~2) Human persons have a right to life, but they do not have the right to defend their lives.
The absurdity of this is self-evident. How can I have a right to life if it is morally impermissible for me to defend my life?
My having a right to life does not entail any moral obligation on my part to defend my life, but it surely entails the moral permissibility of self-defense. For if I have a right to life, then others have an obligation not to harm me. This obligation of theirs entitles me to meet a deadly threat with force sufficient to thwart the attack up to and including killing the assailant. We appear to be at moral rock-bottom here. I say (2) is self-evident. Reject it, and there is probably no point in further discussion.
"You have a right to defend yourself, but no right to the possession of any effective means of so doing."
To will the end is to will the means. So, to will one's defense is to will the means to one's defense. Therefore, if it is morally permissible to will one's defense, then it is morally permissible to will the means to one's defense. I grant that qualifications may be needed.
Arguably, felons ought not have the right to purchase firearms. A felon either forfeits his right to self-defense, or has that right overridden by the community's right to be safe from his predation.

(4) is obviously true pending some obvious qualifications that I left out for the sake of brevity, the soul of wit. A handgun is an effective means of self defense, but not in all circumstances, only if the defender is properly trained in the use of firearms, etc. (as opposed to the individual qua member of some collective such as a police force or military unit) has an individual right to posses firearms for the purpose of defending his own life. The existence of such an individual right does not entail that it is unlimited. Thus if I have a right to firepower sufficient to my self-defense, it does not follow that I have a right to firepower sufficent to lay waste to a city. One non sequitur to avoid is this:

There is no unlimited individual right to keep and bear arms;
ergo, the right to keep and bear arms is a collective right.

Arguments like the foregoing make appeal to people's reason. Like all my arguments, it is directed to open-minded, reasonable people who are doing their level best to form correct opinions about matters of moment.
You decide whether I have been employing right reason. But if you wish to criticize, just be sure that you engage what I have actually written and not something you have excogitated on the occasion of skimming my post.

---

[rbosque]

“No free man shall ever be de-barred the use of arms. The strongest reason for the people to retain their right to keep and bear arms is as a last resort to protect themselves against tyranny in government.” - Thomas Jefferson

“The said constitution shall never be construed to authorize congress to prevent the people of the United States who are peaceable citizens from keeping their own arms.” - Samuel Adams

“The great object is that every man be armed. Everyone who is able may have a gun.” - Patrick Henry

“Americans need never fear their government because of the advantage of being armed, which the Americans possess over the people of almost every other nation.” - James Madison

“To preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them.” - Richard Henry Lee Founding Father

“Laws that forbid the carrying of arms…disarm only those who are neither inclined nor determined to commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater … confidence than an armed man.” - Thomas Jefferson, quoting Cesare Beccaria in On Crimes and punishment (1764).

“Arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property . . . Horrid mischief would ensue were the law-abiding deprived of the use of them.” - Thomas Paine, Thoughts on Defensive War (1775).

“No free man shall ever be debarred the use of arms.” Thomas Jefferson, Proposed Virginia Constitution (1776).

“The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any.band of regular troops.” - Noah Webster, An Examination into the Leading Principles of the Federal Constitution Proposed BV the Late Convention (1787).

“Arms in the hands of individual citizens may be used at individual discretion in private self-defense.” - John Adams, A Defense of the Constitutions of Government of the United States of America (1787-1788).

“Americans need not fear the federal government because they enjoy] the advantage of being armed, which you possess over the people of almost every other nation.” - James Madison, “The Federalist 46 (1788).

“A militia when properly formed are in fact the people themselves and include all men capable of bearing arms …To preserve liberty it is essential that the whole body of people always possess arms . . . “ - Richard Henry Lee, Additional Letters From the Federal Farmer 53 (1788).

“I ask, sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.” -George Mason, during Virginia’s Convention to Ratify the Constitution (1788).