Another SCOTUS case or: what pistol should I buy

[Notmuchlonger]

Obviously a shotgun. That way you can disable your invader and keep keep them alive. That way you can torture them during a time of strife.

[Gumby]

Originally Posted by ChrisC

My point is that, irrespective of the historical grounding of the Second Amendment's origin to have "a militia" keep and bear arms to thwart the militia or army of the Federal Government, the basic right and attribute secured by the Amendment is an individual's right to self-defence and self-preservation, period. Thus, the Court's opinion is clear that the right to keep and bear arms does not mean that an individual must be given a right to wage war successfully against a standing army or military.

The Court stated that the right to keep and bear arms does not mean a right to keep and bear "military weapons" and that right to keep and bear arms, based on historical antecedents at the time of the Second Amendment was enacted, does not extend to "dangerous and unusual weapons." If the right to keep and bear arms were extended to cover an individual's capacity to wage war or engage in armed insurrection successfully, there would be few, if any, limits to the type of weapons one could keep and bear. And the Court did not disturb prior rulings that said tommie guns and short barrelled shotguns can be prohibited -- clearly effective weapons in fighting a standing army more so than a handgun!

I haven't actually gone back to check, but I believe Scalia gives very short shrift to the argument that the 2nd amendment allows only arms in existence at the time of its enactment. He points out, correctly, that the 1st amendment apples to modern means of communications and the 4th to modern means of searching and seizing.

In my earlier comment, I merely intend to point out that there are two basic parts of the decision 1) the 2nd amendment is an individual right deriving, at least in part, from the idea that the populace as a whole, if armed, could resist tyranny and 2) that existing laws restricting certain weapons such as sawed off shotguns, automatic weapons etc. are unaffected by the decision. I don't see how one can start with the first premise and logically maintain the second.

When you mention self-defense, against whom is that self defense? If it is against the army, you'll need more than a handgun.

To be clear, I see no problem with having restrictions on the types of arms one may "keep and bear", but that is just my preference. I don't find Scalia's reasoning convincing on the topic.

[Martha]

Aw poopy poo, Gumby you have convinced me to read the case just because I want to see Scalia at work.

[REWahoo]

Originally Posted by Martha

Aw poopy poo...

Another of those obscure Latin legal terms no doubt....

[ChrisC]

Originally Posted by Gumby

I haven't actually gone back to check, but I believe Scalia gives very short shrift to the argument that the 2nd amendment allows only arms in existence at the time of its enactment. He points out, correctly, that the 1st amendment apples to modern means of communications and the 4th to modern means of searching and seizing.

In my earlier comment, I merely intend to point out that there are two basic parts of the decision 1) the 2nd amendment is an individual right deriving, at least in part, from the idea that the populace as a whole, if armed, could resist tyranny and 2) that existing laws restricting certain weapons such as sawed off shotguns, automatic weapons etc. are unaffected by the decision. I don't see how one can start with the first premise and logically maintain the second.

When you mention self-defense, against whom is that self defense? If it is against the army, you'll need more than a handgun.

To be clear, I see no problem with having restrictions on the types of arms one may "keep and bear", but that is just my preference. I don't find Scalia's reasoning convincing on the topic.

Well, no one is suggesting that the Court's opinion freezes the weapons covered by 2nd Amendment to those small arms existing before the 2nd Amendment was enacted. My point is that weapons such as handguns and shotguns in the home are clearly designed to promote self-defense. Technological advances in small arms certainly permit an extension of the 2nd Amendment to more advanced small arms, but to say that because the 2nd Amendment had part of its origins in preventing oppression and tyranny of the Government, it must embrace weapons, such as an RPG, an M-16 or even a semi-automatic Uzi, that are effective against a standing army -- that's a bit of a stretch, and Scalia's opinion does not endorse that view.

The Court's opinion is grounded in an individual right of self defense -- at its core this permits a gathering of people to become a militia in which the people bring their own arms that were obstensibly kept for self-defense. The 2nd Amendment doesn't just exist to permit the military arming of individuals to fight against an oppressive, tyrannical Government, as I read Scalia's opinion.

I think the only thing that is clear regarding weapons is that handguns, rifles and shotguns in the home cannot be banned. However, I think the weapons that might be banned in the future will be based on notions of self-defense -- just my opinion.

[Gumby]

I think your conclusion is correct, but I find a certain lack of cohesion in the decision on this point.

[Texas Proud]

I have not read the decision.... but does it go into the open carry part?

The amendment is to keep and bear arms... so I would think that would allow someone to wear their arms where ever they go... I hope it does not go that far...

[laurence]

Of course you can wear your arms wherever you go, how in the world would you detach them from your shoulders? (yuk, yuk)

This is another one of those issues I can see both sides on, but as far as gun choice, I'm jumping on the .357 bandwagon. Taurus makes a great one, six shot revolver with a long barrel. Short barrels are harder to keep straight for second/third shot, and since it's home defense you don't need to worry about compact size. For me, the father of two daughters, the thought of cleaning it on the front porch during their teenage years warms my heart.

[Average Joe]

Originally Posted by ChrisC

but to say that because the 2nd Amendment had part of its origins in preventing oppression and tyranny of the Government, it must embrace weapons, such as an RPG, an M-16 or even a semi-automatic Uzi, that are effective against a standing army -- that's a bit of a stretch, and Scalia's opinion does not endorse that view.

Are you against civilian ownership of all semi-automatic weapons or just the Uzi semi-auto pistol - or did you mean automatic?

[d]

my read is much simpler than the rest of you (probably because i've such a simple mind) ... the court basically said that the DC city council cannot override the constitution

[donheff]

Originally Posted by d

my read is much simpler than the rest of you (probably because i've such a simple mind) ... the court basically said that the DC city council cannot override the constitution

Yeah, same thing they told the Bush Administration a week earlier. (This is the Soap Box. )

[BunsGettingFirm]

Any opinion on 25 caliber automatics? I have never seen one until my brother in law showed me his concealed carry. It was a bit slimmer compared to my old 9mm Glock 26, but that could be the design of the gun.

[Leonidas]

Originally Posted by ChrisC

Not sure I agree with the premise that potential coercion of a "standing army" or "organized militia" was the raison-detre for the Second Amendment, as I think Scalia appears to suggest that the basic right to self-defense (including armed defense against tyrants) is the core-component for Second Amendment.

Scalia went to great effort to demonstrate that the right to keep and bear arms was a natural right and not dependent on anything to do with the militia. Given the opinions put forth by the petitioners and the dissent, a lengthy discussion about the militia was necessary to confront the fallacies in the opposite side’s narrower views on the militia.

I agree with him, and you, that the right exists outside of any mention of, or the actual existence of the militia. The right would exist even if the Bill of Rights had never been written.

However, I disagree with your view on the raison d'etre for the Second Amendment - as opposed to the right that it guarantees. I think Scalia agrees:

Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

…It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution.

The prefatory clause does not change the operative, it just serves to explain why the Founders thought it was so darn important to include it in the Bill of Rights. If the right were not protected, the militia could be rendered ineffectual, and the states and the people depended on the militia to defend them against oppression.

If you read the Federalist and Anti-Federalist dialogues you will see what Brutus and his friends were nervous about and the detailed plans that Publius described to assuage those fears. I refer specifically to Brutus VIII and Federalist 28 and 46.

And, with an eye toward modern times, larger population, and more powerful national army, Publius wrote this at the very end of Federalist 28 (from my modern language version):

For a long time to come, maintaining a large army will be impossible. As our ability to enlarge the military increases, so will the proportionate population and strength of the community. Therefore, when will the federal government be able to raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are, through the medium of their State governments, able to defend themselves, with the swiftness, regularity, and organization of independent nations?

I interpret that to mean that the militia would always outnumber the regular army, but the Founders had no idea that the quality of the arms in the hands of the common people would be so inferior to those of the army as they are today. Not that I'm arguing to allow my neighbors to start collecting hand grenades and missiles, just that I think the founders would have felt such a disparity would be equal to an unarmed populace.

As for what Justice Scalia said about what types of weapons would be permitted, I am having a difficult time deciphering the opinion. I have to say that some of the opinion was well written, some of it was not very well written, and then there are pages 52-55, which were horribly written.

He started the discussion with what would be allowed under his interpretation of what Miller should mean, switched to discussing his belief that Heller was not going to make any decisions in that area, and then said that he felt that future opinions would allow for reasonable restrictions before finally writing something about how the modern developments might have affected the fit between the prefatory clause and the right.

The real disaster might be in a brief mention in the discussion about restrictions in which he mentioned the English Common Law phrase “dangerous and unusual”. Depending on how future courts view that part of Heller, the use of that phrase could have cracked open the door for some very creative ways to restrict the right. What the heck do dangerous and unusual mean in the case of a firearm? The possible interpretations boggle the mind.

[ChrisC]

I think if you proceed on the path that somehow the 2nd Amendment enshrines in a person the ability to collectively assemble with others as a militia and to wage war effectively against tyrants -- one of the historical antecedents for the Amendment -- then I do think, logically as Mr. Gumby also indicated before, that this does mean authorizing the technological means to accomplish that task. But even Scalia admits that -- "fit" between prefatory and operative clauses aside -- the basic right is one of self-defense, and that weapons that go beyond self-defense, including "dangerous and unusual weapons" or "uncommon" weapons could be appropriately banned. As Scalia indicates in his discussion of whether military weapons -- such as whether "the M-16 rifles and the like" may be banned -- the Second Amendment's basic right of self defense could be detached from its prefatory clause: "It may well be true that a militia, to be effective as militias in the 18th Century, would require sohisticated arms that are unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of that right." And that right is basic self-defense, and that right extends to only employing "common weapons" available to the common person in our society, as I read the opinion.

[Bimmerbill]

I've always thought that since the founding fathers had just rose up and fought against an opressive government to free themselves that they wanted future generations to have the same ability.

So, I guess I don't see a problem with citizens owning RPGs or M-1 tanks. It will keep the gov't honest.

I'm very interested to see what happens to the crime levels in DC once citizens are allowed to protect themselves with firearms.

I also don't know why the politicians and chiefs of police keep saying they fear a "Wild West" mentality where every minor disagreement will result in a gun fight. I live in NH and it has very few restrictions on firearms. Not many gunfights happening here at all.

I used to shoot competitively for the Army and have been shooting for just about my entire life (started in cub scouts with BB guns). For those thinking of getting an new firearm, I recommend a good NRA safety course and plenty of range time. Store it safely and in compliance with all laws (and there are a lot of them...). Oh, and have fun!

[jclarksnakes]

Originally Posted by Bimmerbill

I've always thought that since the founding fathers had just rose up and fought against an opressive government to free themselves that they wanted future generations to have the same ability.

So, I guess I don't see a problem with citizens owning RPGs or M-1 tanks. It will keep the gov't honest.

I'm very interested to see what happens to the crime levels in DC once citizens are allowed to protect themselves with firearms.

I also don't know why the politicians and chiefs of police keep saying they fear a "Wild West" mentality where every minor disagreement will result in a gun fight. I live in NH and it has very few restrictions on firearms. Not many gunfights happening here at all.

I used to shoot competitively for the Army and have been shooting for just about my entire life (started in cub scouts with BB guns). For those thinking of getting an new firearm, I recommend a good NRA safety course and plenty of range time. Store it safely and in compliance with all laws (and there are a lot of them...). Oh, and have fun!

BimmerBill,
....Good post. I also wonder why the politicians and police chiefs are so against good citizens owning weapons. I think they have trouble recognizing the difference between a felon and a good citizen. In the case of the politicians I think many of them actually like the felons more than they like good citizens. I suspect we will not see much change in the DC crime rate. It will take some time. You can tell the felons that their victims now are more likely to be armed but they will have to see anecdotal evidence before it will alter their activities.
Jeff

[Texarkandy]

There's a saying "An armed society is a polite society" - or something like that.

[ChrisC]

Originally Posted by Bimmerbill

I've always thought that since the founding fathers had just rose up and fought against an opressive government to free themselves that they wanted future generations to have the same ability.

So, I guess I don't see a problem with citizens owning RPGs or M-1 tanks. It will keep the gov't honest.

These are the same Founding Fathers (you're supposed to capitalize the name to pay homage to them) that also decided to keep a significant portion of the population in slavery -- after abolishing the Slave Trade in the U.S -- and which later took a Civil War to correct; they were also so deficient in their thinking about Government that they had a trial run with the disastrous Articles of Confederation; and they also had to Amend the Constitution with 10 Amendments before the ink was perhaps even dry. They should be exalted for creating an incredible document of Government -- the U.S. Constitution is an amazing document -- but they weren't omniscient about every particular detail. And the history behind the Second Amendment clearly shows that those Founding Father didn't perhaps really want to equip the common man with every conceivable weapon to fight the newly created Federal Government. Their historical foil might have been the tryant King George, however, most of them considered themselves as descendants of Englishmen, with the rights of self-defense that embued Englishmen with protecting themselves primarily from each other. If you arm one person with greater weaponry than others, it seems like this goes beyond self-defense and it means that someone with the bigger stick in the neighborhood will encourage others to get even bigger sticks, and once that happens . . . well things would get out of hand, won't they?

And I don't have confidence that these big sticks won't be used against me, as opposed to the tyrannical Federal Government.

[Gumby]

Good observations, Chris. Especially the last one.

It is difficult for us to peer back through two centuries to identify the original intent of the Founders. But, if I recall my history correctly, the American Revolution started when the British regulars marched out of Boston in an attempt to seize the arms the Patriots had gathered in Concord (which I believe included some cannon), so certainly the experience of a citizen militia fighting a standing army -- over the threat of being disarmed -- was fresh in their minds.