Supremes On 2nd Amendment

[AzRednek]

Has anybody heard anything other than the trial has started ? I saw a short news clip on TV today and that is about it. Anybody know when the decision will be announced. If we lose this one or get ambiguous language it could end gun ownership as we know it.

[AzRednek]

Just heard on Fox's radio news, the decision is expected mid June.

 

[Doble Troble]

I listened to the arguments on C-Span.

 

It seems from the Justice's questions that they're going to decide that the second means what it says: that individual Americans have the right to keep and bear arms.

 

There was NOTHING said about the "shall not be infringed" part, which annoys me. It seems like this should answer all the questions about "reasonable restrictions" - even a "reasonable" restriction is an infringment.

 

There was some discussion about the militia, but they seemed to be of the opinion that the right is an individual one without regard to actual membership in the militia, although they of all people should know that federal law clearly defines the militia as every American between the ages of 17 and 45. But I'm getting to the upper end of that range so maybe I should be happy that militia membership isn't part of the deal.

[AzRednek]

federal law clearly defines the militia as every American between the ages of 17 and 45. But I'm getting to the upper end of that range so maybe I should be happy that militia membership isn't part of the deal.

 

If you read the actual law it exempts anyone involved in the movement of mail. It got my attention while I worked for the Post Office. Postal workers must have been going postal way back when it was written, shooting up post offices with muskets !!

[plumbum]

I listened to the arguments on C-Span.

There was NOTHING said about the "shall not be infringed" part....

 

you seemed to miss the following part, on pages 75-76 of the transcript.

 

 

JUSTICE STEVENS: Let me ask a question are you, in effect, reading the amendment to say that the right shall not be unreasonably infringed instead of shall not be infringed?

MR. GURA: There is that inherent aspect to every right in the Constitution.

JUSTICE STEVENS: So we can -- consistent with your view, we can simply read this: "It shall not be reasonably infringed"?

MR. GURA: Well, yes, Your Honor, to some extent, except the word "unreasonable" is the one that troubles us, because we don't know what this unreasonable standard looks like.

JUSTICE SCALIA: You wouldn't put it that way. You would just say it is not being infringed if reasonable limitations are being placed upon it.

MR. GURA: That's another way to look at it, Your Honor. Certainly -

CHIEF JUSTICE ROBERTS: -- you would define reasonable in light of the restrictions that existed at the time the amendment was adopted.

MR. GURA: Those restrictions.

CHIEF JUSTICE ROBERTS: You know you can't take it into the marketplace was one restriction so that would be we are talking about lineal descendents of the arms but presumably there are lineal descendents of the restrictions as well.

MR. GURA: Framing our practices would inform the kind of restrictions that would be accepted, but even beyond that, they also form the contours of the right. In the Fifth Circuit, for example, we have the Emerson decision, Alpha Seven decision, and the way that court examines the Second Amendment, when they get these felon and possession bans and drug addict and possession challenges, what they say is, these people simply are outside the right, as historically understood in our country, and that's a very important aspect to remember, that the Second Amendment is part of our common law tradition, that we look to framing our practices in traditional understandings of that right, as to both the reasonableness of the restrictions that are available as well as the contours."

 

so, they did discuss the "shall not be infringed" thing.

 

It seems like this should answer all the questions about "reasonable restrictions" - even a "reasonable" restriction is an infringment.

 

yes indeed, it should, but it won't. there are some folks out there who see "shall not be infringed" and stop right there. they refuse to look at the bigger picture because they don't like it. there were restrictions on guns at the time of the Constitution. before, during, and after. apparently, they were not seen as an infringement. but what would the drafters of the Constitution know? they only wrote the thing.

 

as was carefully and comprehensively explained by experts in the field, who are friendly to our goals, "shall not be infringed" did not and does not mean "shall not be regulated in any way." "shall not be infringed" allows some regulation, including prohibiting certain persons from owning any firearms at all; that's the way it was meant by the people who wrote the Constitution, and their opinion trumps all others. felons were not allowed to keep or bear arms.

 

There was some discussion about the militia, but they seemed to be of the opinion that the right is an individual one without regard to actual membership in the militia, although they of all people should know that federal law clearly defines the militia as every American between the ages of 17 and 45.

 

well, the militia act post-dates the Constitution, so it is not useful in analyzing the Constitutional language. so they do know about federal law. and now, so do you, at least a little more about the militia act.

[FC]

Maybe I shouldn't read this; I'm getting upset!

[plumbum]

if my post upset you, don't read the transcript, as EVERYBODY agreed machine guns could be prohibited.

[karlunity]

JUSTICE STEVENS: Let me ask a question are you, in effect, reading the amendment to say that the right shall not be unreasonably infringed instead of shall not be infringed?

 

MR. GURA: There is that inherent aspect to every right in the Constitution.

JUSTICE STEVENS: So we can -- consistent with your view, we can simply read this: "It shall not be reasonably infringed"?

 

The court CANNOT accept that line of reasoning, if they do, then EVERYTHING from the right to vote. to the ban on slavery to the guarantee of a republican form of government becomes subject to "unreasonably" as the current administration or court may define "unreasonably".

 

We are then a nation of men and not of laws and the Constitution becomes a " worthless Piece of paper".

 

Karl

 

P.S. You cannot 'reasonably infringed" any more than you can have "legal crime".

Roberts is playing with Gura's head, while showing the absurdity of the Gov's case.

 

So far this looks good for us. : )

[AzRednek]

Here is the entire transcript. I didn't realize it untill after reading this, the trigger lock issue is also raised.

 

http://www.supremecourtus.gov/oral_argumen...ipts/07-290.pdf

[plumbum]

JUSTICE STEVENS: Let me ask a question are you, in effect, reading the amendment to say that the right shall not be unreasonably infringed instead of shall not be infringed?

 

MR. GURA: There is that inherent aspect to every right in the Constitution.

JUSTICE STEVENS: So we can -- consistent with your view, we can simply read this: "It shall not be reasonably infringed"?

 

The court CANNOT accept that line of reasoning, if they do, then EVERYTHING from the right to vote. to the ban on slavery to the guarantee of a republican form of government becomes subject to "unreasonably" as the current administration or court may define "unreasonably".

 

not true. not true at all. there are reasonable restrictions on the first amendment, voting, and everything else. and the Constitution still stands.

 

 

Roberts is playing with Gura's head, while showing the absurdity of the Gov's case.

 

you mean Stevens, perhaps? he was not showing the absurdity of the government's case, he was trying to see if Gura was making the absurd argument that there can be no restrictions at all on firearms. Gura doesn't want the Supreme Court to write the word "reasonably" into every second amendment amalysis; we already have enough trouble with the rational, intermediate, and strict scrutiny standards. that's why he says "we don't know what this 'reasonable' standard looks like." here is more of that analysis, which shows Gura accepting a reasonable restriction concept inherent, but not expressed, in the constitutional analysis:

 

JUSTICE STEVENS: So we can -- consistent with your view, we can simply read this: "It shall not be reasonably infringed"?

 

MR. GURA: Well, yes, Your Honor, to some extent, except the word "unreasonable" is the one that troubles us, because we don't know what this unreasonable standard looks like.

 

JUSTICE SCALIA: You wouldn't put it that way. You would just say it is not being infringed if reasonable limitations are being placed upon it.

 

MR. GURA: That's another way to look at it, Your Honor. Certainly -

 

CHIEF JUSTICE ROBERTS: -- you would define reasonable in light of the restrictions that existed at the time the amendment was adopted.

 

MR. GURA: Those restrictions.

 

this all has to do with standards of review and the way the law is applied. it's probably more important to lawyers and judges than anybody else. but it is important.

[karlunity]

he was trying to see if Gura was making the absurd argument that there can be no restrictions at all on firearms.

I cannot agree.

 

That word "reasonable" seems reasonable but it opens the question of what is to be considered "reasonable" and by whom?

 

That is the whole "Living Constitution" school view. As a strict constructionist , I think that Constitution means what it says.

 

Karl

[plumbum]

I cannot agree.

 

That word "reasonable" seems reasonable but it opens the question of what is to be considered "reasonable" and by whom?

 

That is the whole "Living Constitution" school view. As a strict constructionist , I think that Constitution means what it says.

 

Karl

 

you don't have to agree for it to be true. reading the constitution according to the reasonableness of the time it was written is not a "living constitution" thing. the "living document" idea is interpreting according to today's standards and definitions.

 

you are correct of course that creating a reasonability standard for the second amendment would have been unacceptable, that's why Scalia offered an alternative. which is that there is reasonableness inherent in the Constitution, which can be known from the time it was drafted, and that reasonable application of the second amendment is not an infringement.

 

as a "strict constructionist" perhaps you can explain whether the first amendment freedoms of speech apply to handwriting or the internet. which is not "spech" or the "press." a "press," strictly construed, is a printing machine. "speech," strictly construed, is speaking. please explain.

 

"JUSTICE SCALIA: Well, number one, I believe in moderation, and I don't believe in strict construction, I am not a strict constructionist, I'm sorry to tell you that. I believe legal texts should be interpreted neither strictly nor loosely, they should be interpreted reasonably. And the example I often use is that if you really are serious about being a strict constructionist, you would say that the First Amendment would not be offended by Congress' censoring handwritten mail, because the First Amendment only says, you know, it guarantees freedom of speech and of the press, and a handwritten letter is neither speech nor press if you want to be strict about it. But of course the First Amendment has always been understood as protecting freedom of expression, and I think that is a reasonable interpretation of it, and that's the interpretation I apply. Which is why, you know, I was the fifth vote in the flag-burning case, which said this was an expression of contempt, just one way of expressing it, and you can't have a law against an expression of contempt."

 

you may think your understanding of con law is better than scalia's, but I respectfully suggest that is highly unlikely to be true. I know that mine is not. he's in a pretty small club when it comes to con law.

 

this stuff is tricky, it's not easy to understand, and it's easy to be misled by buzzwords like "strict construction." I also thought it sounded like a good idea until I really thought about it.

[karlunity]

as a "strict constructionist" perhaps you can explain whether the first amendment freedoms of speech apply to handwriting or the INTERNET. which is not "speech" or the "press." a "press," strictly construed, is a printing machine. "speech," strictly construed, is speaking. please explain.

 

Speech in its strictest essence is a mechanism for the transfer of information from one mind to another or to many, that being so, all means that are used to transfer that information are in essence the same.

 

As to knowing more about the Constitution than the worthy Justice, I have not made that claim, but the Constitution was not written for Justices alone but for the American people and as such both you and I are entitled to our opinions.

 

this stuff is tricky, it's not easy to understand,

 

On that, I do disagree, the Constitution was not conceived to be "tricky" but to be the plain social contract of the American people. It was John Marshall and his darn. The function of the court is to decide what the law means "in Maury V. Madison",

which Jefferson, who should have known better,( but Marshall ruled in his favor ) let him get away with, that opened it up to all this "legislating from the bench" nonsense.

 

 

reasonable in light of the restrictions that existed at the time the amendment was adopted.

 

Problem with that is that at the time the Second was adopted as part of the Bill Of Rights. about 1790, a single shot smooth bore flint lock was reasonable, keeping slaves was reasonable and not allowing women to vote was reasonable.

 

That is a very slippery slope.

 

While I have some faith in the judgment of THIS court, I would not extend that faith to one packed by say Hill or Obama.

 

 

 

Karl

 

Humm..Hold on, since the weapon of the time, the flint lock was the weapon of the young US Army, You could make the case that the people have the reasonable right to the weapons of today's army...I want an M-16>>this will be better than Switzerland!! happy happy joy joy.

 

 

[Thor]

While I have some faith in the judgment of THIS court, I would not extend that faith to one packed by say Hill or Obama.

That's why it is important that this be heard and ruled on before the election. I fear that Hill or Obama may get elected. That's not a prediction, just a fear.

 

[Doble Troble]

I do appreciate your clear opinion on the subject, plumbub. Thank you for it. I only watched C-Span (while trying to be otherwise productive) and must have missed the "shall not be infringed" discussion.

 

Regarding "reasonable" restrictions, the first amendment says nothing about potential infringment, only that "no law shall be made"...to restrict religion, the press or speech. Making law clearly goes well beyond mere infringement.

 

The second is perfectly clear about the extent to which our right to keep and bear arms should be infringed.

 

The second amendment would clearly become meaningless if significantly infringed. Here's an example of how far "making no law" and "strictist scrutiny" gets you

[AzRednek]

Regarding "reasonable" restrictions, the first amendment says nothing about potential infringment, only that "no law shall be made"...to restrict religion,

 

How the ACLU has managed to pervert prayers in school and and Christmas decorations being a violation of the 1st Amendment perplexes me. I don't see anywhere in the Bill Of Rights saying "atheists or non-Christians shall not be offended" by saying "under God" in the Pledge. Guess the Brady Bunch will claim they are offended at the sight of a handgun.

 

Congress shall make no law ...... prohibiting the free exercise thereof

 

It gets perverted the other way as well. Peyote in religious ceremonies, or drugs, public nudity, orgies and animal mutilations in practicing paganism. Here in Phoenix and other cities as well. Wife swappers have stopped police raids on their activites by starting a religion.

[Doble Troble]

Guess the Brady Bunch will claim they are offended at the sight of a handgun

 

The Brady Bunch and liberals in general are offended by the slightest hint of an expectation of personal and civil responsibility.

 

As we've discussed before here on MFRC (and therefore I know there are some here that may not agree) I do think it's up to interpretation about which "arms" the second amendment clearly gives us the right (actually all these rights are God-given but specifically enumerated to FRICKIN MAKE DAMN SURE that they aren't messed with by THE FRICKIN GOVERNMENT that was clearly seen by the founders as a necessary but EVIL...I digress). I suggest that this is where the reference to militia may have been particularly excellent foresight on the part of the founders. The arms that we have the right to are the arms that will enable the militia (the armed citizenry) to be well-regulated (effective). I suggest that these arms are those that are standard issue to individual infantry. I suggest that team or group served weapons should be made available for training purposes in a state-organized manner (because an effective milita depends upon this).

 

Actually at this point I'd be pretty happy to be able to carry a brace of flintlock pistols at work. A single cap and ball revolver would be most excellent. I have the right to carry my Browning Hi-power with 14 rounds of 9 mm but it is (unconstitutionally) against local law.

[plumbum]

the first amendment never was absolute. think about it - how could there be libel if freedom of speech was absolute? or slander? violation of a veral contract?

 

there always have been rstrictions on speech. and firearms, too. even when the Constitution was written.

 

not all slopes are slippery. my take on the transcript is pretty good. kennedy is the frightening one right now, and he didn't say anything scary yet.

 

so far, so good.

[AzRednek]

The audio of the arguments

 

http://home.flash.net/~csmkersh/Heller_Stuff.html

[Thor]

I tried reading through the transcript and got sleepy about 1/2 way through. Those guys sure are wordy and do debate meaning of words until they weary you. No wonder we have problems in Washington.

[plumbum]

I do appreciate your clear opinion on the subject, plumbub. Thank you for it.

 

no problem, I am glad to contribute what I can to this forum. this stuff really is tricky. it looks so simple, but there is a lot of context that guides the application of the laws.

 

as to the first amendment, there are even religious restrictions. if not, there would be nothing stopping families from stoning their daughters for being unchaste - that is an old, longstanding, undisputed religious tenet for some folks. here, we prohibit that as murder. so the analysis for the first amendment is not that no law can be made, as it certainly can, and was. the point is how do we define "restrict"? and the answer is "very carefully"

 

The second amendment would clearly become meaningless if significantly infringed.

 

I think you are correct. some people use the word significant, some would use reasonable, or both. for example, prohibiting (traditional) felons from gun ownership, based on a 1,000 year old tradition of law, is a reasonable restriction that does not significantly infringe upon the second amendment. same as not allowing prisoners to own weapons. or lunatics.

 

this stuff is hard to keep straight.

[plumbum]

How the ACLU has managed to pervert prayers in school and and Christmas decorations being a violation of the 1st Amendment perplexes me.

 

Congress shall make no law ...... prohibiting the free exercise thereof

 

you left out the establishment part. that's the rubric used against prayer in school and Christmas stuff. by espousing one type of prayer, or Christmas, the reasoning is that the state is endorsing that religion.

 

I think the analysis has gone far awry, but that's the idea.

[karlunity]

Sir.

 

As to "libel and slander" I would argue that the purpose of the First is to prevent the Government from restricting political debate and thus I can say "The President in in the pocket of the Greens" and not fear the midnight knock on the door.

But If I say that my boss is on the take, he being a private citizen, would make that actionable.

 

As to "Stoning", good point . : )

 

Good debate.

 

Well done and welcome.

 

Karl