Second Amendment for Res

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Vēritās
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Second Amendment for Res

Post by Vēritās »

So I've been reading various pieces discussing the history of how this amendment has been interpreted through the years. Some pieces on the Left have argued that the longstanding position is that the 2nd refers to collective right and not an individual right. They also argue that this never became an individual right until 2008. Others place that around the 1970's.

I wanted to get your thoughts on this since you have a legal background. Here is an argument laid out by a gun advocate insisting this was always understood as an individual right:
The same state legislatures that ratified the Second Amendment affirmed an individual right in their state constitutions. They seemed to think it was an individual right.

Pennsylvania: 1776: That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power. Declaration of Rights, cl. XIII.

Vermont: That the people have a right to bear arms for the defence of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power. Ch. I, art. 16 (enacted 1777, ch. I, art. 15).

Kentucky: 1792: "That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned." Art. XII, § 23.

Ohio: 1802: "That the people have a right to bear arms for the defence of themselves and the State; and as standing armies, in time of peace, are dangerous to liberty, they shall not be kept up, and that the military shall be kept under strict subordination to the civil power." Art. VIII, § 20.
Elsewhere he said:
In US v Cruikshank,1876, the Supreme Court recognized that "The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence." The decision recognized the right of two former slaves to keep a bear arms, two men who were not in the militia, would not have been allowed to be in the militia, in a state where the militia had been disbanded.

Without the recognition of an individual right to keep and bear arms, Miller, whose entire appeal was based upon that right, would have no standing to have his case reviewed by the Supreme Court.

There have been six major pieces of gun control legislation passed by Congress, all prior to Heller: NFA 1934, Gun Control Act of 1968, Firearm Owners Protection Act (including the Hughes Amendment) of 1986, the Brady Act, the Assault Weapons Ban and the Lautenburg Amendment.


The word militia isn't mentioned a single time in any of them. The words "individual", "person" and "citizen" are repeated hundreds of times.


In 1982 the Senate published a bipartisan report entitled "the right to keep and bear arms report" that affirmed an individual rights viewpoint.

In 1990 in US v Verdugo-Urquidez the Supreme Court affirmed: "...it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."


The claim that Heller changed the interpretation of the right protected by the Second Amendment from a collective to an individual viewpoint simply has no merit.

UNITED STATES, Petitioner v. Rene Martin VERDUGO-URQUIDEZ

"The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people." Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an] awkward rhetorical redundancy," Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the People of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292, 24 S.Ct. 719, 723, 48 L.Ed. 979 (1904)

There is a distinctive lack of the word "militia" to be found in this decision which predates Heller by 28 years and the 1994 AWB by four years.

UNITED STATES, Petitioner v. Rene Martin VERDUGO-URQUIDEZ

--------------

US v Cruikshank noted an individual right. US v Verdugo-Urquidez noted an individual right. State constitutions contemporary with the ratification of the Bill of Rights noted an individual right. The Senate in 1982 noted an individual right. It's the collective view of the right to keep and bear arms that's Bogus. There's never been a federal law or the Supreme Court decision that affirmed the collective viewpoint of the right to keep and bear arms.

There have been six major pieces of gun control legislation passed by Congress, all prior to Heller: NFA 1934, Gun Control Act of 1968, Firearm Owners Protection Act (including the Hughes Amendment) of 1986, the Brady Act, the Assault Weapons Ban and the Lautenburg Amendment.


The word militia isn't mentioned a single time in any of them. The words "individual", "person" and "citizen" are repeated hundreds of times.
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Re: Second Amendment for Res

Post by Vēritās »

And in response to Warren Burger's claim about it being a fraud...
Burger wasn't on the Court when he published this opinion. In Verdugo-Urquidez the year before Burger the citizen published his opinion the Court noted that the 2nd, like the 4th.

“The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “ Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010). "

Caetano v Massachusetts, 2016.

the Supreme Court has affirmed that the Second Amendment protects all "bearable arms" (Caetano v Massachusetts) "in common use for lawful purposes" (DC v Heller) or having a "reasonable relationship to the preservation and efficiency of a well regulated militia" (US v Miller) , and incorporates those protections against the states (Chicago v McDonald).

Heller was decided in 2008. Scalia noted that "long standing restrictions" would still be considered to be Constitutional, and Kavanaugh's dissent in Heller II concurred. Where we are now in 2022 is that all bearable arms in common use for lawful purposes are protected, which includes, according to the terminology in Caetano, AR-15s and every other type of firearm typically included in "assault weapons" bans.

NFA 1934 was a blatantly unconstitutional act, as the federal government wasn't granted any powers over the arms of the people.


In 1934, there had been no the Supreme Court decisions where the federal government had successfully defended a federal law infringing the the right of the People to keep and bear arms. the Supreme Court in Cruikshank had noted "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence" and limited the applicability of the Second Amendment to the federal government. Regardless of the ability of the states to regulate firearms, the Supreme Court had affirmed that the federal government had no Constitutional authority to do so.

In McCulloch v Maryland (1819), Chief Justice Marshall insisted that "should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal . . . to say that such an act was not the law of the land." In United States v Darby, Justice Stone wrote: "Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause."


Since at the time of the passing of the NFA 1934 the right to keep and bear arms for lawful purposes had been affirmed by the Supreme Court, any law which infringed that right using the Commerce Clause was unconstitutional, and not a power entrusted to the government, and thus not the law of the land.

Interpretation: The Commerce Clause | The National Constitution Center
constitutioncenter.org
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Re: Second Amendment for Res

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I haven’t studied the judicial history of the amendment. The analysis you quoted appears to me to violate a couple of standard principles of interpretation that courts generally follow. First, the Court can’t adopt an interpretation that ignores part of the language actually used. In other words, the drafters of the amendment included the militia clause for a reason, so courts shouldn’t hand wave it away.

Second, when drafters use different language in different documents, the normal presumption is that the intent was different. So, the fact that several states explicitly listed personal defense as a basis for the right, the normal conclusion would be that the authors of the bill of rights did not consider personal defense as a reason for the second amendment. In other words, the author is making the argument exactly backwards.

But that doesn’t mean that his conclusion is wrong. Let’s start back at the original Constitution. The way it works is pretty clear. All power lies with the people. The U.S. government has only the power that the people delegate to it in the Constitution. The power of the government is limited, not by enumerating the citizens’ rights, but by confining that power to the express delegation in the Constitution.

So, at that point, did the federal government have any power with respect to private ownership of weapons. I think so. The federal government was given the authority and responsibility to defend the United States. And the method the framers chose was was to prohibit a standing army and instead rely on the state militias as the front line ground defense until the US government could raise an army. That gave the federal government a legitimate interest in making sure the states had well-ordered militias. But, as there is no comparable wording that would apply to individual self defense, my best guess is that the framers thought of that as an issue for the states to deal with. That would explain why you see references to owning firearms for individual defense in early state constitutions.

The amendments we call the Bill of Rights made things a little more complicated. Rather than rely on limited delegation of powers to preserve the people’s inalienable rights, the amendments enumerated certain rights as expressly limiting the power of the federal government. But it created a theoretical problem that our courts still wrestle with today — the framers believed in inalienable rights, that included life, liberty and the pursuit of happiness. But, as soon as they listed rights as part of the Constitution, they became alienable — an amendment to the Constitution could make them disappear. But it’s pretty clear that the framers viewed, say, religious Liberty as something the government could not take away. So, how exactly should a court think about the rights listed in the bill of rights — especially given that one of the amendments says that the people’s rights are not limited to the ones listed in the bill of rights. Once you see this dilemma, I think Constitutional law becomes easier to understand.

But returning to the Second Amendment, I think it’s reasonable to interpret the first clause as simply stating the U.S. government’s interest in firearms. In other words, the intent is not to limit the reasons for owning firearms, but to acknowledge the Federal government’s limited interest in private ownership of firearms. Because defense of the United States depended on the states having well regulated militias, it had an interest in making sure that the militias were able to be armed.

I don’t think the second amendment has anything to do with owning firearms for self defense. It’s much more likely that the framers simply thought of that as an issue for the states.

Next up: The Court tries to figure out what the Second Amendment means.
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Re: Second Amendment for Res

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One of the things I don't really understand is that if the courts have ruled that the second amendment covers any type of gun then why are we able to enforce laws prohibiting machine guns?
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Re: Second Amendment for Res

Post by Res Ipsa »

Vēritās wrote:
Sat Jul 16, 2022 3:35 pm
One of the things I don't really understand is that if the courts have ruled that the second amendment covers any type of gun then why are we able to enforce laws prohibiting machine guns?
There's a bit of circularity involved, but the reasoning goes something like this:

The right to own and carry firearms is not created or defined by the second amendment - the second amendment is simply a limitation on the federal government to infringe on that right. The right itself was defined in United States v. Cruikshank, 92 U.S. 542 (1875). Here is the key passage from that case:
The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.
92 U.S. at 553. [Emphasis added.]

In defining what the inalienable right was, the Court included a limitation: "for a lawful purpose." When we fast-forward to Heller, Scalia holds that home defense is a lawful purpose. Note how he frames the dispute as including the "lawful purpose" limitation as part of the right in question:
The two sides in this case have set out very different interpretations of the Amendment. Petitioners and to­ day’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. See Brief for Petitioners 11–12; post, at 1 (STEVENS, J., dissenting). Respondent argues that it protects an individual right to possess a firearm uncon­ nected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. See Brief for Respondent 2–4.
District of Columbia v. Heller, 554 U.S. 570, (2008).

Scalia then goes on to discuss the definition of "arms."
Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42 Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (1794) (emphasis added).

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
[Emphasis added.]

The phrase I bolded is probably dicta -- it is not necessary to the holding of the case because the arms at issue were handguns -- not military weapons. But the "lawful use" limitation in the definition of the right itself allows the Court to draw a distinction between weapons owned for a "lawful use" and the that aren't. And the distinction suggested by Scalia is weapons designed for military use and used in a military capacity. The other prohibited weapon that springs to mind is the sawed-off shotgun, which was used by criminals as an offensive weapon because it could be more easily concealed and transported as opposed to a weapon used for home defense.

[by the way, I'm using the term "home defense" because that's what Heller focussed on. Carrying arms for the purpose of self defense is also a "lawful purpose.]

So, because both the second amendment and the inherent right itself are limited to "lawful uses," they apply to all "arms," but not all weapons are "arms." Only those owned and carried for a lawful purpose are "arms." But trying to define which weapons are not arms introduces the circularity problem -- it depends on how the weapons are used. Why is it lawful to own a handgun for home defense? Because people use handguns for home defense. The problem is that what people do changes over time, and so maintaining a clear distinction becomes impossible.

Take the AR-15. It is based on a weapon specifically designed for military use and is used by the military. The main functional difference is the absence of a burst fire mode. So, does it qualify as "arms" or not? It is also true that lots of Americans own and keep AR-15s at home for home defense. Home defense is lawful, so why shouldn't owning an AR-15 be lawful?

Scalia provides a rationale in Heller for distinguishing weapons that can be completely banned from private ownership from those that cannot. But its very tenuous. I expect it will be hard to consistently maintain, and will be modified in the next decade or two.

But that's the reasoning, as I understand it.
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