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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel. |
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Has SCOTUS Already "Repealed" the 2nd Amendment?
On the Eric Swalwell thread in the California section of the board yesterday, leadchucker made an interesting claim, to which I responded and he replied...
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Here’s How The Supreme Court Already Repealed The Second Amendment Notice the following snippets... Quote:
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That means we need to be careful in how we address that language. "Common use" is, like it or not, used by the Founders or not, a 'statistic.' It is, thus, open to 'interpretation' as represented in the famous saying: "There are liars, d#@n liars, and statisticians." While I and many others might agree with the idea that the Founders didn't 'limit' the right with 'common use' and that to impose such a standard opens up the 2nd Amendment to be, potentially, fundamentally undermined, it is the standard currently protecting an individual right to 'keep and bear.' If, as Scalia seemed to make clear, that standard needs to be clarified and reinforced, short of an Article V revision or a Civil War, then we will have to rely on SCOTUS to do so. This would seem especially true in that the lower courts already seem to be 'clarifying and strengthening' the misinterpretation Thomas and Scalia pointed to. With the Court refusing case after case in terms of the right to keep and bear arms, is it truly a good idea to, in effect, abandon the 'logic' used in Heller to secure the individual right? Or... Given that Heller is being used to, in effect, 'repeal' the 2nd Amendment by judicial fiat, has that 'logic' already been abandoned and we find ourselves in a nearly pre-Heller state of litigation and access to the right? Last edited by TrappedinCalifornia; 05-09-2018 at 6:26 AM.. |
#2
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All this means is that some of the fascists in black robes have zero respect for the Constitution regardless of what they claim or what kind of ruling the highest court hands down.
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#3
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It's similar to antis who point to "not any weapon any time anywhere" to mean "because some restrictions might pass legal muster, any restriction is constitutional." Or, as Bradys put it "Heller affirmed gun control."
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#4
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Heller was a starting point. There is nothing in Heller that would preclude another ruling that would declare all AWBs unconstitutional, whether on "common use" grounds, or on grounds of "it's an arm and there is no rational support for the ban."
The antis hope to frame Heller as restrictive and final. The current justices are making sure it appears that way. For now. When the court composition changes, we can quickly get to the point where we have proper jurisprudence with multiple cases addressing multiple aspects of the right. Remember, the Supreme Court has not taken any of the cases and ruled against us or limited the scope of Heller to just what's in Heller. They just refused to hear cases. Ironically, they know that any "trick" they use against Heller opens the same trick to be used against Roe or, now, Obergefell.
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#5
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Since the Bill of Rights are laws limiting Government, and because the Document governs, ALL Branches of Government, I don't see where the Supreme Court has ANY legal authority to INFRINGE upon the RIGHT that they were INSTRUCTED to NOT Infringe.
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#6
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Two words from Heller set our future here:
'Reasonable restrictions". One's state's "reasonable" is another state's total ban. This was SCOTUS checking out of gun cases and 2nd amendment. There was no follow-up, nor any clarifications after NYC refused to obey it. Now we have at least 50 differing state interpretations and thousands of local ordinances passed since Heller. Like the SCOTUS in the 1850's, important cases are being ignored. We know how those cases ended in 1861. |
#7
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This is what a lot of folks are not understanding... Heller wasn't the end of 2nd Amendment litigation, it was the beginning.
Everything leading up to that point was trivial, because the 2nd Amendment hadn't previously been specifically upheld as protecting an individual right and until McDonald, hadn't been incorporated like the rest of the Bill of Rights. Once those two cases were decided, the race was on, and that's what we're seeing today. Today we live in a world where the SCOTUS has said, "yes, it really does mean individual citizens have a right to own guns," but that is the only thing that was said. Now, one side wants to constrain what that means as much as possible, the other wants it to be simple and inclusive. It is going to take a lot of court cases before that becomes clear. The important takeaway here is that NOW IS THE TIME WHEN THE FIGHT MATTERS MOST. The battle is fully joined and every inch of terrain won or lost now is of critical importance in the long term, because eventually the "contours of the 2nd Amendment" (which is the legal term of art) will be generally "established" and then it will be much harder to move the needle.
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#8
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Also, notice the absence of adverse rulings on 2A. We indeed have a narrow and explicit starting point. Quote:
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#9
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While I agree that 'common use' should not be the sole standard, it is considered the 'fundamental premise' of Heller by those on "our side" at SCOTUS. Hopefully, they don't take that reasoning as far as "the other side" has been trying to take Scalia's "reasonable restrictions" language. In fact, I suspect that's precisely why Scalia himself was chiding pro-gun people to bring the Court cases so it could be further clarified in terms of breadth and scope. With all that said, we're dancing around the real question in the OP. Quote:
Then is declaring that 'fundamental premise' simply "just a statistic invented by a Supreme Court Justice, but not used by the Founders" (conveniently ignoring that 5 of the 9 Justices signed on to that language) and/or writing articles declaring 'common use' to be flawed (misrepresentative, overly limiting, not what the Founders had in mind, et al.) truly a good idea? Isn't that tantamount to undermining your own position? Emotionally, while I might agree with DolphinFan, that SCOTUS does not have 'legal authority' to infringe, the reality is what Jimi Jah notes; i.e., that SCOTUS has declared "reasonable restrictions" to be Constitutional. Unfortunately, with Scalia gone and SCOTUS refusing to take new cases... new cases which would be necessary in clarifying the breadth and scope of the rights protected by the 2nd Amendment and the limitations of those 'reasonable restrictions'... wouldn't it be 'better' to declare exactly what you've stated... Given the facts in Heller, "in common use" is/was the fundamental premise of that, specific case; but, it is neither the only basis upon which nor a strict limitation of how the right is determined. Last edited by TrappedinCalifornia; 05-09-2018 at 11:23 AM.. |
#10
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Something that I've never understood is how people arrive at the belief that the federal government can regulate arms. If the 2nd Amendment was written wholly or partially to ensure that the population is armed as a check against a tyrannical government, it doesn't make sense to me that federal government gets to regulate arms.
The entity that the 2A was designed to protect against is the very entity that regulates who can have guns and what kind they can have. There's something wrong with that... |
#11
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Despite all the bickering going on here we may be looking at 1861 again because when the feds started limiting options under the second amendment nearly eighty years ago the feds opened the door for states to expand on it over time. Now we have to deal with that mistake. If the supreme court will not deal with the conflicts between the previous rulings and the discontent among gun owners/second amendment supporters whether they own guns or not then they may well push this into a second civil war by doing nothing. It will be interesting to see how many leftists scramble to find the very weapons they discourage if the military and police decide to sit it out.
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#12
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SCOTUS was clear that handguns, for protection in the home, were basically a right. Beyond that, it's all open to the states to do what they want within some boundaries, but not many. That is the reality of the double-edge sword. |
#13
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The Federal government is not granted the power to regulate, restrict, prohibit, etc. arms, even absent the 2nd Amendment. The Federal government is no longeer bound by the Constitution much these days, and the courts are a huge part of why.
Heller is another example of compromising a ruling such that it does not fully reflect the truth. If anything is the central component of the right, it is the martial aspect, not personal self-defence. The limitations and qualifications that Heller imposes or considers acceptable are not to be found in the Constitution itself. It is just a way to avoid upsetting the gun controul apple cart too much. The reason why, IMO, is that it was essential to securing Kennedy's vote, because he has frequently shown a lack of fidelity to the Constitution (Obergefell being a more recent example) and seems to believe in a certain amount of gun controul. A ruling againsta RKBA does us no good, but unfortunately, the ruling for it also has had its drawbacks. I think this is also why the court continues not to take up appeals in RKBA cases. The chances of Kennedy going beyond Heller and McDonald are likely slim, and 5-4 rulings against us would set some bad precedents, which seem to increasingly matter more than the Constitution, unless both don't conform with a judge's own political policy preferences, in which case that is more important (such as in the atrocious and grossly unconstitutional Reynolds v. Sims case and the other Reapportionment Cases, which also played a role in Democratic domination of California, predictably). |
#14
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For example: In many states, retired police officers are exempt from certain gun laws. This is a massive violation of the 14th amendment and falls right into the same reasoning that Obergefell held. "Specific rights that allow persons, within a lawful realm, to define and express their identity." Seems to me if you are a lawful gun owner, ex-police or not, you deserve the same protections. Are you suggesting the Obergefell decision was an error in fact? I was thinking we don't make enough 14th amendment arguments as gun owners. Specific taxes levied on gun owners (for example) for exercising their right seems wrong to me. |
#15
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What I meant was "the fallacy of the argument," I wasn't trying to imply it was your argument. I just didn't write it quite correctly. Sorry for the confusion.
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#16
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Wikipedia contains a nice summary of what the Supreme Court itself said about denial of certs, including references to the relevant cases (for those who don't like Wikipedia itself) : Quote:
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#17
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#18
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Which, I believe, is precisely why Scalia (and Thomas) wanted more cases to clarify and set some boundaries. Quote:
Last edited by TrappedinCalifornia; 05-09-2018 at 3:28 PM.. |
#19
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This is the correct answer.
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#21
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One of the concerns is that, as more and more of the 'lower courts' increasingly restrict rights recognized and protected by the 2nd Amendment, the less likely it is for the Supreme Court to hear a case due to a 'lack of conflict' to resolve. I suspect that is exactly what the anti-civil rights proponents are hoping; i.e., that the Court has left it to the States to determine what they consider 'appropriate' in terms of keeping and bearing. It certainly seems that's where they are focusing their efforts, at the State and Local levels. Lacking the boundaries Scalia appeared interested in creating, however, some States (California, New York, Hawaii, etc.) appear poised to push "too far," opening the door for the Court in terms of a near total elimination (or, effective elimination) of the right vs. 'reasonable restrictions' (whatever that might mean). |
#22
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I always love it when some court redefines the dictionary to mean something it was never intended to and then tells the common man the common man is wrong when the common man objects. Just pass the ammo and man the walls because they are coming folks.
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#23
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Postmodernism... Quote:
Deconstructionism... Quote:
Living Document... Quote:
Sound familiar? Last edited by TrappedinCalifornia; 05-09-2018 at 5:40 PM.. |
#24
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Thomas Jefferson said "The beauty of the Second Amendment is that you won't need it until they try to take it away."
Well, make no mistake, they are trying to take it away. I guess we'll see what NEEDS to be done. To think Oregon beat California to this level of stupid... http://www.thegatewaypundit.com/2018...ss-resistance/ |
#25
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The quote is from a book by Matt Carson although I cannot remember the name circa 2007 (which is why it sounds like modern colloquial American English, because it is). The quote is relevant none the less, regardless of who said it. Seems Oregon doesn't pay attention to anyone saying it, Jefferson or not |
#26
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Dupe thread
This is a thread duplicating multiple threads on the same theme, e.g.
https://www.calguns.net/calgunforum/....php?t=1214664 This matter was covered in detail. Heller's exceptions swallow the rule. Numerous law review articles have been written on the subject of the Heller decision and its exceptions recognizing a broad power held by states to regulate the possession and carrying of arms. An example is the following article by Rory Little, "Originalism's Last Gasp," pp. 1419 re: unsupported exceptions. As one member has said loudly, learn American history and law as it is not as you would like it to be. This set of rules contains exceptions that swallow the 2nd Amendment entirely: Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-centurycourts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler,5 La. Ann., at 489–90 [(1850)]; Nunn v. State,1 Ga., at251 [(1846)]; see generally2 Kent,[Commentaries on American Law (O. Holmesed., 12th ed. 1873)]*340, n.2; The American Students’ Blackstone 84, n.11 (G. Chase ed.1884).District of Columbia v. Heller, 554 U.S. 570 (2008) Scalia's following rule is so broad that it creates the presumption of expansive regulation right down to the sale of firearms: Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.Id. In Heller, Scalia gave the stamp of approval for expansive state disarmament of the people by type, caliber, place, feature, and number of weapons to be possessed. A lot of 2nd Am. folks clamor the slogan "state's rights" (whatever that is supposed to mean in the pop consciousness of the 2nd Amendment communities); Scalia delivered. |
#27
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Heller was a 'compromise' to get the right declared individual rather than collective. As I stated above, it was clear that Scalia was inviting more cases to be brought as he was desirous of clarifying and, potentially, expanding what was protected. Unfortunately, as I said, with Scalia's death, we'll never, truly know what he considered the boundaries to be. It also means that, for better or worse, we are stuck with the 'compromise language' of Heller; a decision, I feel, Scalia viewed as "the camel's nose under the tent" rather than the be all, end all. States' rights and the mishmash of anti-gun laws which have emerged as a result of what Thomas (and Scalia) have declared to be misinterpretations and misrepresentations of Heller have occurred and are on-going. Now, as Thomas is 'regularly' lamenting, the Court seems, at best, to be ambivalent and, at worst, outright hostile to such clarity and reinforcement, creating the chaotic situation described above. But, that begs another question... I don't know that Scalia was the 'enemy' in terms of the language he appeared 'forced' to use in penning the majority decision. At this point, we're assuming that Gorsuch is on "our side." Being a 'disciple' of Scalia, I suspect that's likely. (I'm not as big a fan, overall, but that's for a different discussion.) Alito still appears to be on "our side." Many are pointing to Kennedy as the question mark. I'm not sure that's truly the case. He may not be our "friend," but he was part of the "Heller Five" and does not appear to be actively working against us. That leaves Roberts. Roberts has a desire for greater unanimity in decisions, an expressed concern regarding public perceptions of the Court as an institution, is a States' rights proponent, and has also espoused 'uncertainty for both sides' as an 'hammer' for working toward more 'unanimous' decisions. In other words, could it be that the compromise language Scalia put forth have been more influenced by Roberts and could the Court's 'reluctance' to accept (and, thus, clarify) 2nd Amendment cases be indicative of Roberts' approach rather than Scalia? Just a thought. Last edited by TrappedinCalifornia; 05-21-2018 at 7:01 PM.. |
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http://www.calguns.net/calgunforum/s...&postcount=134
this pretty sums up why we are where we are. Courts are reluctant to do anything.
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#29
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Courts are reluctant to do anything perceived as pro-gun. They are doing a good amount which we continually lament as anti-gun. As fiddletown stated in the link you provided... Quote:
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#30
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What you see is what you get. 50 differing 2nd amendments in each state. Thousands more in localities on top created a nation-wide legal trap.
The SCOTUS was pretty clear when they struck down the AZ anti-immigration laws saying it's a federal jurisdiction. They were equally clear with Heller. States can now do whatever they want as can cities. Heller did not change local NYC handgun laws. They allowed them. The SCOTUS is our dictionary. They can decide the final meaning of words here. |
#31
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The entire bill of rights is largely meaningless, it was a selling point to create an ever increasing federal bureaucracy. History has proven the anti-federalists correct.
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I want gay married couples to be able to protect their marijuana plants with guns |
#32
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Remember "Saturday Night Specials" and other made-up garbage like that? That was in the early 2000s that the NAACP was trying to ban them. A lot of that discussion has now moved aside because of Heller. There will always be people trying to take our rights, but on the litigation front, the handguns thing has slowed down a bit but point taken: Common use can be damaging if we aren't careful. I don't think we are pre-Heller yet, but we could slip backward IMHO. Always vigilant. |
#33
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The term "Saturday Night Special" was in use in the 1960s.
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#34
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No, that was not the intent. I hate to think how much further down the road to hell we'd be today if it weren't for the Bill of Rights.
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#35
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Why? Because the NRA had spent something like $7 million fighting a ban on "Saturday Night Specials" (1988?) in Maryland, I think. But, they spent less than $1 million fighting the "assault weapons" ban in California; declaring it to be a 'lost cause' at that point and not worth 'wasting' the money, instead saving it for future litigation. That ticked off a lot of Californians at the time. Insofar as bans on handguns 'moving aside' because of Heller... Yes and no. D.C. is still trying to ban them. We have the roster here in California. We still have 'carry' restrictions in many places besides California; though Constitutional Carry has also 'increased' in many places, it's also lost in others. In short, it hasn't exactly 'moved aside' so much as changed complexion in the manner of attacks being used. By and large, they know they can't outright 'ban' them the way they are attempting to do with so-called "assault weapons;" Heller is plain enough on that score. But, that hasn't stopped them from various forms of restrictions which severely limit their availability and use in many places. Put another way, some 'wins' and some 'losses;' but, not exactly 'moved aside.' You might take a look at a report that came out of the Giffords Law Center last year... POST-HELLER LITIGATION SUMMARY Quote:
Last edited by TrappedinCalifornia; 05-23-2018 at 9:55 PM.. |
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I didn't mean the term, I meant the NAACP sued sometime in the early 2000s over it. I have no clue where the term came from. I remember Reagan talking about it.
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With calls for so-called "assault weapons" bans, restrictions on carry, moving the minimum purchase age to 21, et al., given that SCOTUS appears to be leaving it to the States/lower courts to 'decide' on the limitations (note the link I provided to the Giffords piece, which cited, as of 2017, approx. 1,150 pieces of litigation [Federal and State] post-Heller), and given the change in complexion in how the anti's are attacking the right... It might be fair to say that we are not, precisely in a pre-Heller situation in relation to handguns, specifically. It might even be fair to declare that the right being recognized as an individual one and being incorporated to the States via McDonald changed the playing field. But, it might also be fair to say that, overall, we could be in an even more intense state of litigation and access to the right than existed pre-Heller, particularly given the 'weak' protections Heller is proving to have provided without SCOTUS being willing to take up new cases to clarify and expand the boundaries of what is protected. |
#40
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Nothing will have changed. The neutered 2nd amendment is going to stay that way until the masses decide to ignore the restrictions.
At the rate this country is falling apart it shouldn't be a long wait. |
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