Gun Control in the US: Second Amendment "Incorporated" in CA

HamHamJ

PantsB wrote: »

It is not the job of the court to decide if laws are good ideas or not. The Court should and does defer to the Legislature on what the "price" is, until and unless they try to sell something that isn't theirs (to extend the metaphor). The Court violated stare decisis and invented a new right to own a handgun without a trigger lock for the use in self defense based not on original intent or any other coherent doctrine but along purely partisan lines.

As opposed to any number of other times the court has made up rights (Roe v Wade and anything predicated on interstate commerce comes to mind)?

Matrijs

HamHamJ wrote: »

PantsB wrote: »

It is not the job of the court to decide if laws are good ideas or not. The Court should and does defer to the Legislature on what the "price" is, until and unless they try to sell something that isn't theirs (to extend the metaphor). The Court violated stare decisis and invented a new right to own a handgun without a trigger lock for the use in self defense based not on original intent or any other coherent doctrine but along purely partisan lines.

As opposed to any number of other times the court has made up rights (Roe v Wade and anything predicated on interstate commerce comes to mind)?

If you're looking for an instance where the court made up a right, Griswold is a better bet than Roe. Also, figuring out how to handle the interstate commerce clause really isn't a rights issue so much as it is a federalism issue.

HamHamJ

Matrijs wrote: »

HamHamJ wrote: »

PantsB wrote: »

It is not the job of the court to decide if laws are good ideas or not. The Court should and does defer to the Legislature on what the "price" is, until and unless they try to sell something that isn't theirs (to extend the metaphor). The Court violated stare decisis and invented a new right to own a handgun without a trigger lock for the use in self defense based not on original intent or any other coherent doctrine but along purely partisan lines.

As opposed to any number of other times the court has made up rights (Roe v Wade and anything predicated on interstate commerce comes to mind)?

If you're looking for an instance where the court made up a right, Griswold is a better bet than Roe. Also, figuring out how to handle the interstate commerce clause really isn't a rights issue so much as it is a federalism issue.

It's a rights issue in that it involves deciding the federal government has the right to do all kinds of shit not remotely in the constitution.

Drake

PantsB wrote: »

Drake wrote: »

PantsB wrote: »

I have KevinNash on ignore but I still saw this quoted response. Notice that nowhere in either Federalist paper is the 2nd Amendment (which did not exist) put forth. Also note that in 46, Madison is not arguing that gun ownership is a right. He is expicitly arguing the importance of the well regulated militia.

Full quote, my own emphasized portions bolded:

This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround i

Federalist 28 is written specifically to argue for the importance that militias be well-regulated by the states because otherwise there was no defense against tyranny

If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance.

Both are arguments not for an individual reading but a militia reading.

Throughout history, militia have been composed of citizens that supplied their own weaponry, from the Greek Hoplites and Roman Legions to the American Minuteman.

edit: for clarity.

But not inherently. The National Guard (the well-regulated militia as it exists today) is not expected to bring their own weapons or equipment.

And the militia reading is that the government may regulate or prohibit arms unless it can be shown that possession or use of that firearm has a reasonable relationship with the preservation and efficiency of the (well-regulated) militia.

I agree, that's why I limited my statement at the American Minuteman which is what was relevant to the quotes of the Federalist Papers.

Although, to my (admittedly limited) understanding, the modern legal definition of the term militia is primarily a broadening of the term to include Federal militia, not a restriction that excludes the people. So the interpretation of the individuals right to bear arms still stands, especially in light of the militia clause that opens the second amendment.

And no, I don't think that gives me the right to put a Howitzer in my front yard. But that would be neat.

edit: Also, I'm talking primarily about the militia of free societies. Societies ruled by monarchy and other forms of despotism of course are going to tightly control access to armament of any kind.

jothki

Matrijs wrote: »

mcdermott wrote: »

You've made a great argument for amending it out of the Constitution.

However, the fact that in a modern context a new primary purpose has emerged for the right established in the second amendment does not suddenly make the right go away. Of course I'm (obviously) in the "the right is not limited to the scope of the prefatory clause" camp.

That's absurd, though. You can't just ignore whole operative clauses of a statute when you're doing interpretation.

Here's an example of me doing the same thing with the following line from the Constitution:

US Constitution wrote:

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.

Now, suppose tomorrow Congress passes and the President signs a bill that finds that the public safety requires the suspension of habeus corpus and then actually suspends it. Since there's no rebellion or invasion going on, that's unconstitutional, right?

Unless of course I just ignore the clause "when in cases of rebellion or invasion," in which case it's totally constitutional.

Wasn't the ability to blatantly ignore clauses of the constitution given a strong precedent in Marbury v. Madison?

Jealous Deva

PantsB wrote: »

It is not the job of the court to decide if laws are good ideas or not. The Court should and does defer to the Legislature on what the "price" is, until and unless they try to sell something that isn't theirs (to extend the metaphor). The Court violated stare decisis and invented a new right to own a handgun without a trigger lock for the use in self defense based not on original intent or any other coherent doctrine but along purely partisan lines.

You keep throwing around stare decisis like it's some kind of law. 2 points:

1. Stare decisis is a general guideline. The supreme court has complete authority to review it's previous decisions.

2. The fact that cases keep coming before the court can be taken by the court evidence in and of itself that the issue is not adequately settled and needs further interpretation.


Stare decisis is a fine justification for overturning the verdict of a lower court or refusing to hear a case, but the Supreme Court has absolute justification and authority for reinterpreting it's previous decisions as it sees fit.

Gooey

mcdermott wrote: »

Gooey wrote: »

It has been my experience that those who apply for a CHL and actually carry (as opposed to "I got one just because I can have one") take it very seriously. And they should. It is very serious. You don't have a bunch of rednecks running around waving their pistols in the air and shooting people for looking at them funny.

Well......

I mean, you have to define "a bunch." Is double-digit incidents in a year enough to do away with carry? In a nation of three hundred million?

EDIT: Seriously, yesterday I was reading what must have been a couple/few dozen cases from 2008 alone. On the Interstate, at soccer games, at stop lights, all over the place. Some involved discharge of the firearm, some did not, but you clearly do have "a bunch" of rednecks being dumbasses with their concealed handguns. The question is whether that "bunch" is a significant enough figure to constitute a compelling interest.

Double-digit incidents doesn't fit the definition of "a bunch" to me. If CHLs are such a threat to society (due to gun-swinging trigger-happy rednecks), I'd like to see some actual data showing me how often this kind of event actually occurs.

And even then, people who are dumb enough to wave their gun around lose their permit. And heaven help you if you point the weapon or actually shoot someone with it.

I would say the vast majority of CHL holders who carry daily shoot very regularly and under high stress situations, and a lot of them are on-par with or better shooters than a typical Police officer. Putting on a badge doesn't make someone magically an incredible shooter (and if you think most LEO qualifications are hard you're sadly mistaken), thousands and thousands and thousands of rounds of the right kind of practice do.

Like I said, lack of immunity from prosecution and liability at least gives CHL holders the incentive to be both better shooters than cops as well as more conservative in their use of force that cops. Remember the shooting on the BART? If that had been a CHL holder, rather than a police officer, it would have been straight to jail, no bail, then off to prison, do not pass go and do not collect $200. Absent proof of intent it would have likely been a (relatively) short sentence, but there would have been no question regarding the outcome.

Then, when he got out of prison, he'd have been sued personally by the guy's family, and never have had a dime to his name ever again.

Pretty much. If you're a CHL holder who actually carries and does not practice regularly and does not fully understand your states laws regarding CHL you're an absolute idiot.

PantsB

HamHamJ wrote: »

It's a rights issue in that it involves deciding the federal government has the right to do all kinds of shit not remotely in the constitution.

Elastic Clause, Power of Congrses wrote:

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Matrijs wrote: »

If you're looking for an instance where the court made up a right, Griswold is a better bet than Roe. Also, figuring out how to handle the interstate commerce clause really isn't a rights issue so much as it is a federalism issue.

And Griswold, while controversial provided a reasonable justification and had significant precedent that penumbras of enumerated rights created a right to privacy, a concept was supported by precedent from Common Law.

Jealous Deva wrote: »

Stare decisis is a fine justification for overturning the verdict of a lower court or refusing to hear a case, but the Supreme Court has absolute justification and authority for reinterpreting it's previous decisions as it sees fit.

It has authority to reinterpret previous decisions as it sees fit yes.
It does not have justification to do so unless they are right and the change in precedent does more good than judicial restraint would.

DrLoserForHireX

jothki wrote: »

Wasn't the ability to blatantly ignore clauses of the constitution given a strong precedent in Marbury v. Madison?

Not really at all. It's just that what "necessary and proper" means in a legal sense in the US isn't what we think it is. Marshall writes that necessary cannot only mean that which could not be done without, because that's a question we can't answer and makes the government powerless. Necessary then has to mean something done with the express and reasonable purpose for attaining a legitimate end. Hence, the Federal government can establish a national bank to regulate commerce even though it is not a specifically enumerated power because it seems totally reasonable for the end it's employed for.

If you get rid of implied power, so much of what we know goes down the tubes.

HamHamJ

PantsB wrote: »

HamHamJ wrote: »

It's a rights issue in that it involves deciding the federal government has the right to do all kinds of shit not remotely in the constitution.

Elastic Clause, Power of Congrses wrote:

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Matrijs wrote: »

If you're looking for an instance where the court made up a right, Griswold is a better bet than Roe. Also, figuring out how to handle the interstate commerce clause really isn't a rights issue so much as it is a federalism issue.

And Griswold, while controversial provided a reasonable justification and had significant precedent that penumbras of enumerated rights created a right to privacy, a concept was supported by precedent from Common Law.

Jealous Deva wrote: »

Stare decisis is a fine justification for overturning the verdict of a lower court or refusing to hear a case, but the Supreme Court has absolute justification and authority for reinterpreting it's previous decisions as it sees fit.

It has authority to reinterpret previous decisions as it sees fit yes.
It does not have justification to do so unless they are right and the change in precedent does more good than judicial restraint would.

So in other words, when the court makes a decision you agree with, it's clearly following the law as it should, but when the court makes a decision you don't agree with, it is not following the law.

Unknown

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PantsB

HamHamJ wrote: »

So in other words, when the court makes a decision you agree with, it's clearly following the law as it should, but when the court makes a decision you don't agree with, it is not following the law.

Or, restated, when I think the court isn't following the law I don't agree with it.

Unknown

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PantsB

mcdermott wrote: »

PantsB wrote: »

HamHamJ wrote: »

So in other words, when the court makes a decision you agree with, it's clearly following the law as it should, but when the court makes a decision you don't agree with, it is not following the law.

Or, restated, when I think the court isn't following the law I don't agree with it.

This is true for nearly everybody, it's just that some (more like most) people are really bad at applying that "think the court isn't following the law" standard objectively.

And I'm sure even the most neutral observer has some bias. I'm not hugely anti-gun IMO. I don't own a gun but I think it'd be fun to go to the range and put holes in targets to try it out. I can sympathize with those who were brought up hunting or who want a gun in their homes for a real or perceived sense of security. But I don't think the Founders wrote a Constitution that legalized armed rebellion or prohibited restrictions on private gun ownership unrelated to the common defense through a well-regulated militia.


Sometimes decisions are right on the law but wrong ethically or set/limit policy in a way one would not prefer. Kelo was decided rightly IMO but federal law should be written to limit that kind type of use of eminent domain. I think Affirmative Action is generally a positive in University admissions on a societal and institutional level but I also think the University of Michigan cases were incorrectly decided. People can be pro-medical marijuana and still recognize that Gonzales v. Raich could only be decided in the way it was. Sometimes the law sucks and it needs to be changed.

Aeolusdallas

Scalfin wrote: »

never die wrote: »

I don't see why people being allowed concealed weapons all of the sudden turns into the wild west. Deaths due to firearms in Indiana, a state that allows concealed firearms, has 11 deaths per 100,000 people, most of which are probably due to hunting accidents. It just seems to me the people saying a lot of people will hurry to try to get a gun are the same as people arguing against gay marriage because of the huge influx of gay marriages.

Oh, and my source: http://www.statehealthfacts.org/profileind.jsp?ind=113&cat=2&rgn=16

Aren't most of the guns in areas where you're more likely to hit a banjo than a person if you start shooting randomly, though?

I also love how Texas was on a list of states that are supposed to prove that the states that give out these permits aren't hicksville. Florida isn't as bed, but the size of the confederate flag I saw when I was down there should probably also disqualify it.

Texas has a huge population and the majority of them live in urban areas. Only California has more people.

enc0re

This may be relevant for our discussion.

The U.S. Militia is defined by federal law, specifically the Militia Act of 1903. By creating the National Guard, it separated the U.S. Militia into two forces:

1. The organized militia: That's the National Guard.

2. The reserve (or unorganized) militia: All able-bodied males, ages 17 - 45, that aren't members of the National Guard.

In other words, if you are male and between the ages of 17 and 45, federal law says you are a member of the militia.

Septus

I don't think any statutory definition would be binding on terms in the constitution.

enc0re

Septus wrote: »

I don't think any statutory definition would be binding on terms in the constitution.

It doesn't overrule the constitution, but I bet it will carry considerable weight, if you try to nail down a definition of the militia. IMHO, it shoots a hole into the "National Guard is the militia now" argument. Because federal law says it's not intended as a replacement but as a complement.

PantsB

enc0re wrote: »

Septus wrote: »

I don't think any statutory definition would be binding on terms in the constitution.

It doesn't overrule the constitution, but I bet it will carry considerable weight, if you try to nail down a definition of the militia. IMHO, it shoots a hole into the "National Guard is the militia now" argument. Because federal law says it's not intended as a replacement but as a complement.

The 2nd Amendment applies to the "well-organized" militia which statutorily consists of the National Guard. US v Miller

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

Federalist Paper 29 wrote:

The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.