Gun Ban struck down

[GeorgeG]

One bone of contention has often been the word "militia."

Some people interpret that to mean an organized military unit, but from the beginning a militia has usually meant ordinary, armed citizens who can come together in defense of themselves, or "the people."

If I'm not mistaken, the requirements for a "militia" have not changed from colonial times. A militia is not the same as the army, but it is often interpreted as such.

 

[JMD]

JA, as traditionally intended, has been that judges just toss stuff out that was nowhere to be found in the Constitution. (Right to an abortion comes to mind.)

The first ten Ammendments in the Constitution is the Bill of Rights. They ALL deal with individual rights - right to free speech, freedom of religion, freedom of assembly, protection against cruel unusual punishment, habeus corpus, right to be secure in your person and effects, etc. Why would the 2nd--NUMBER TWO IN A LIST OF TEN- not deal with an individual right?

"A well regulated mitilita, being necessary to the security of a free state, the rights of the people to keep and bear arms shall not be infringed."

Simply stated, if the government has weapons to provide for its security, then the people have the right to have weapons to protect themselves from the government.

If you and others dont like the fact that the Constitution guarantees that right, you can not change the meaning of the Amendment by interpreting it in far fetched ways. You and others are WHOLLY within your rights to try to change the Constitution, though.

Well said. I always thought "shall not be infringed" was pretty obvious.

 

[FergieTCat]

So when is the "well regulated militia" part coming?

 

[corndog]

"Judicial activism" is in the eye of the beholder...

It's not though. It has a real meaning. Those that seek to employ judicial activism (or have it employed) love to say the term is meaningless, that anything can be seen as judicial activism, etc.

 

[corndog]

So when is the "well regulated militia" part coming?

Hopefully never! Though some days I have my doubts about that.

 

[dejr_8]

If the Left supported the 2nd Amendment with the same vigor with which they support the 1st Amendment, Gun ownership would be mandated (and probably subsidized by the Government)

 

[legalsea]

Do not get caught up by 'labels' being tossed around in here, such as strict interpretation, judicial activism etc. It stifles intellectual reflection.

In today’s Gun decision Justice Scalia wrote:

“In interpreting this text, we are guided by the principle that ‘(t)he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning’” (citations).

All well and good.

However, in Boumediene v. Bush Justice Scalia (in dissent, where you can write anything you want because it is not 'law') ignores the foregoing rule.

From the Constitution of the United States of America (Article I, Section 9, clause 2):

“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”.

“Rebellion or Invasion”. Remember, according to Justice Scalia we are guided by the principle that “The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning”.

I think it can be argued that Justice Scalia is inconsistent when he equates the terrorist attacks with invasion. I do not think that the good people of the 1780s would have equated isolated terror attacks as being ‘rebellion’ or ‘invasion’. The term “invasion” would probably have been understood as referring to the entrance of an armed force into territory with the view to conquer. If you wish to use labels, then Justice Scalia was being ‘judicially active’ in wanted to expand the definition of ‘invasion’ beyond the plain meaning of that word to include the terrorist attacks that have occurred in this county (as well as other countries) over the past 12 years or so.

I do not blame Justice Scalia: many Justices of the Supreme Court rearranged their legal view in order to achieve a desirable result in a particular decision. There is nothing new here. When a President nominates a person to the Supreme Court based on said persons’ political believes, you will get that. Fortunately, many times a person will join the Court and discover that they like being intellectually honest and so will make decisions based on a rational basis.

About today’s decision: this was a case of ‘first impression’ because the Court had never considered the Second Amendment to date. Now that it has, more of these cases will be heard in the years to come; if nothing else, to interpret this case. Recall that Washington D.C. had a particularly strict gun ban: much more so than many other large cities. I guess that is why the Court selected this particular case to decide (the Court has gotten dozens, if not hundreds, of other Second Amendment appeals in the past, but would always deny review). It would have been stronger if the Court had chosen a case in which the gun laws were NOT that restricted, but then struck down the restrictive part.

 

[CowboyCO]

This quote from the minority opinion blew me away:

"The court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons," Justice Stevens wrote.

Uh, Yes-- Mr Supreme Court Justice, that is exactly what we would have you believe. Many framers (including Patrick Henry and Alexander Hamilton) argued AGAINST a bill of rights because in this new nation, rights are not granted by the government or a crown, but rather are natural and god-given rights to all FREE men. Hamilton wrote:

"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"

They finally agreed, contentiously, to include a bill of rights in order to preserve the rights of free men and not grant them. The Ninth amendment was added to limit the power of the power of the federal government to impose it's will on the people, rather than the other way around (Boy did THAT train get off the track...)

Jefferson wrote to Madison from France about a bill of rights:

"Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can."

The SCOTUS just (barely) re-secured that right which was inalienable, and not bestowed.

 

[SeeVee]

Do not get caught up by 'labels' being tossed around in here, such as strict interpretation, judicial activism etc. It stifles intellectual reflection.

In today’s Gun decision Justice Scalia wrote:

“In interpreting this text, we are guided by the principle that ‘(t)he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning’” (citations).

All well and good.

However, in Boumediene v. Bush Justice Scalia (in dissent, where you can write anything you want because it is not 'law') ignores the foregoing rule.

From the Constitution of the United States of America (Article I, Section 9, clause 2):

“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”.

“Rebellion or Invasion”. Remember, according to Justice Scalia we are guided by the principle that “The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning”.

I think it can be argued that Justice Scalia is inconsistent when he equates the terrorist attacks with invasion. I do not think that the good people of the 1780s would have equated isolated terror attacks as being ‘rebellion’ or ‘invasion’. The term “invasion” would probably have been understood as referring to the entrance of an armed force into territory with the view to conquer. If you wish to use labels, then Justice Scalia was being ‘judicially active’ in wanted to expand the definition of ‘invasion’ beyond the plain meaning of that word to include the terrorist attacks that have occurred in this county (as well as other countries) over the past 12 years or so.

I do not blame Justice Scalia: many Justices of the Supreme Court rearranged their legal view in order to achieve a desirable result in a particular decision. There is nothing new here. When a President nominates a person to the Supreme Court based on said persons’ political believes, you will get that. Fortunately, many times a person will join the Court and discover that they like being intellectually honest and so will make decisions based on a rational basis.

About today’s decision: this was a case of ‘first impression’ because the Court had never considered the Second Amendment to date. Now that it has, more of these cases will be heard in the years to come; if nothing else, to interpret this case. Recall that Washington D.C. had a particularly strict gun ban: much more so than many other large cities. I guess that is why the Court selected this particular case to decide (the Court has gotten dozens, if not hundreds, of other Second Amendment appeals in the past, but would always deny review). It would have been stronger if the Court had chosen a case in which the gun laws were NOT that restricted, but then struck down the restrictive part.

It can also be argued that such a statement (the bolded part) is preposterous.

But, I'll go your one farther.

As Justice Scalia correctly stated in his opinion, to think that the "right to keep and bear arms" does not mean to keep an bear only arms of the 18th century. (That would be "frivolous" in his words. )

Just like the right against unsreasonable search and siezure, was expanded to include searches and seizures of bank records, computers, cell phone, etc.

Just like the right to free speech includes free speech on radio, TV, the internet, etc.

Just like an invasion means people overstaying their visa, hijacking civilian airlines and flying them into private and government builidings.

He was not being "judicially active" in a strict sense of the word. If you want to use a most liberal sense of the word, I guess you could arrive at that conclusion.

Judicial activism is when judges go beyond their constitutionally prescribed duties of intrepreting/ applying law to the facts of individual cases, and "legislate" from the bench. Justic Scalia did not legislate from the bench (in that he did not create a new law or right, or restrict a right that had previously been enjoyed). The "right to privacy" was legislation from the bench that gave (or cursed) us with Roe vs Wade. Nowhere in the constitution does a "right to privacy" exist, but some goofy justices found it.

 

[DawnCt1]

I am reading the dissenting opinions and it is incredible to me how such idiots can acutally function without assistance.

The liberals on SCOTUS just make stuff up as they go along.

What is frightening is that it wasn't unanimous.

 

[spima3]

What is frightening is that it wasn't unanimous.

Yes, EXACTLY what I thought, and it was so close it could have actually gone the other way!

 

[dejr_8]

“Rebellion or Invasion”. Remember, according to Justice Scalia we are guided by the principle that “The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning”.

I think it can be argued that Justice Scalia is inconsistent when he equates the terrorist attacks with invasion. I do not think that the good people of the 1780s would have equated isolated terror attacks as being ‘rebellion’ or ‘invasion’. The term “invasion” would probably have been understood as referring to the entrance of an armed force into territory with the view to conquer. If you wish to use labels, then Justice Scalia was being ‘judicially active’ in wanted to expand the definition of ‘invasion’ beyond the plain meaning of that word to include the terrorist attacks that have occurred in this county (as well as other countries) over the past 12 years or so.

I'm sure the people of the 1780s would understand the concept of a 5th column invasion.

 

[dcentity2000]

Yeah, and it was so close it could have actually gone the other way!

The second amendment has always foxed me somewhat - it seems so vague, so easy to interpret one way or the other. This split decision just serves to further confuse me!



Rich::

 

[legalsea]

I'm sure the people of the 1780s would understand the concept of a 5th column invasion.

Ah! A counter legal argument!

I'm out of here. Too many children pretending to be adults on this thread.

 

[dcentity2000]

Ah! A counter legal argument!

I'm out of here. Too many children pretending to be adults on this thread.

Rich::

 

[dejr_8]

Ah! A counter legal argument!

I'm out of here. Too many children pretending to be adults on this thread.

As usual, the ad hominem attacks start once the argument has been lost.

 

[SeeVee]

Ah! A counter legal argument!

I'm out of here. Too many children pretending to be adults on this thread.

I agree. You should leave us adults alone.

 

[corndog]

I agree. You should leave us adults alone.

I have to admit it. I do feel a little embarrassed for her.

 

[CowboyCO]

So when is the "well regulated militia" part coming?

It was part of the Scalia opnion, if you would go read it. I tried to copy it here, but I have only found pdf versions which I can't copy and paste.

Scalia said that the Constitution grants the power to the federal governemnt to raise an Army and create a Navy. It also states that the federal government can call up the militia, meaning that the militia was already in existence and was seperate from the Army.

He also re-affirmed a 1939 Supreme court ruling that "Militia" means all able-bodied men. The entire male populace seperate from the army.

Go read the opinion. The prefatory clause you speak of is addressed on page 22.

http://www.law.cornell.edu/supct/pdf/07-290P.ZO

 

[CowboyCO]

The second amendment has always foxed me somewhat - it seems so vague, so easy to interpret one way or the other. This split decision just serves to further confuse me!



Rich::

I don't think it is vague at all and if you read Scalia's opinion, he explains that the amendments were written in plain English and when taken in historical setting, they are very clear.

The militia (Which were the first to rise up against British Rule) were ordinary citizens. The militia existed prior to armies being raised.

The right to keep and bear was not to be infringed, meaning that the right existed prior to the Constitution. Many people forget that the march to Lexington and Concord by British troops was to disarm local citizens-- the militia.