Senator Obama's Home Town Newspaper proposes to repeal the Second Amendment
That didn't take long, did it?
I somehow doubt that the Illinois delegation to the United States Senate will be introducing such an amendment anytime soon. That would, after all, require that those senators take a very clear stand on the issue that would be difficult to throw under the bus later. Such an amendment would also likely prove to be counterproductive to the electoral interests of at least one of those Senators.
(Hat Tip to Hot Air)
Here is the Editorial, with my fsck'ing (by footnote) after the fold:
[••• per the original]
Repeal the 2nd Amendment
Chicago Tribune Web Edition
June 27, 2008
No, we don't suppose that's going to happen any time soon1. But it should.
The 2nd Amendment to the U.S. Constitution is evidence that, while the founding fathers were brilliant men, they could have used an editor2.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
If the founders had limited themselves to the final 14 words, the amendment would have been an unambiguous declaration of the right to possess firearms. But they didn't, and it isn't3. The amendment was intended to protect the authority of the states to organize militias.4 The inartful wording has left the amendment open to public debate for more than 200 years. But in its last major decision on gun rights, in 1939, the U.S. Supreme Court unanimously found that that was the correct interpretation.5
On Tuesday, five members of the court edited the 2nd Amendment. In essence, they said: Scratch the preamble, only 14 words count.6
In doing so, they have curtailed the power of the legislatures and the city councils to protect their citizens.7
The majority opinion in the 5-4 decision to overturn a Washington, D.C., ban on handgun possession goes to great lengths to parse the words of the 2nd Amendment. The opinion, written by Justice Antonin Scalia, spends 111/2 pages just on the meaning of the words "keep and bear arms."8
But as Justice John Paul Stevens wrote in a compelling dissent, the five justices in the majority found no new evidence that the 2nd Amendment was intended to limit the power of government to regulate the use of firearms. They found no new evidence to overturn decades of court precedent.9
They have claimed, Stevens wrote, "a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th Centuries."10
•••
It's a relief that the majority didn't go further in its policymaking on gun control.11
The majority opinion states that the D.C. handgun ban and a requirement for trigger locks violate the 2nd Amendment. By virtue of this decision, Chicago's 1982 ban on handguns is not likely to survive a court challenge. A lawsuit seeking to overturn the Chicago ordinance was filed on Thursday by the Illinois State Rifle Association.12
The majority, though, did state that the right under the 2nd Amendment "is not unlimited." So what does that mean? The majority left room for state and local governments to restrict the carrying of concealed weapons in public, to prohibit weapons in "sensitive places such as schools and government buildings," and to regulate the sale of firearms. The majority allowed room for the prohibition of "dangerous and unusual weapons." It did not stipulate what weapons are not "dangerous."13
Lower courts are going to be mighty busy figuring out all of this.
We can argue about the effectiveness of municipal handgun bans such as those in Washington and Chicago. They have, at best, had limited impact. People don't have to go far beyond the city borders to buy a weapon that's prohibited within the city.14
But neither are these laws overly restrictive. Citizens have had the right to protect themselves in their homes with other weapons, such as shotguns.15
Some view this court decision as an affirmation of individual rights. But the damage in this ruling is that it takes a significant public policy issue out of the hands of citizens. The people of Washington no longer have the authority to decide that, as a matter of public safety, they will prohibit handgun possession within their borders.16
•••
Chicago and the nation saw a decline in gun violence over the last decade or so, but recent news has been ominous. The murder rate in Chicago has risen 13 percent this year. Guns are still the weapon of choice for mayhem in the U.S. About 68 percent of all murders in 2006 were committed with a firearm, according to the U.S. Department of Justice.17
Repeal the 2nd Amendment? Yes, it's an anachronism.18
We won't repeal the amendment, but at least we can have that debate.19
Want to debate whether crime-staggered cities should prohibit the possession of handguns? The Supreme Court has just said, "forget about it."
And now for the fsck'ing.
1 One of only two recognitions of objective reality in the piece. Savor it!
2 Those levels and layers of fact checkers which prevent newspapers from publishing fraudulent articles or from publishing articles which are full of demonstrable errors? I think the framers of the Constitution achieved a far greater level of readability and accuracy than this editorialist does.
3 From Justice Scalia's majority opinion:
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.”
...
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The
former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased,
“Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep
and bear Arms shall not be infringed.”
This comports well with the writings of the founding fathers on the subject.
“The Constitution shall never be construed... to prevent the people of the United States who are peaceable citizens from keeping their own arms.” - Samuel Adams
The constitutions of most of our States assert that all power is inherent in the people; that they may exercise it by themselves in all cases to which they think themselves competent, or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press.
Thomas Jefferson (letter to John Cartwright, 1824)
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.
Federalist 28, Alexander Hamilton
Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!
Seems to me that the author is either bereft of history, or a deconstructionist of the worst sort.
4 Which would require that "the People" in the Second Amendment are the several states, vice the same "People" of the rest of the bill of rights. Furthermore, we know from the debates surrounding the adoption of the Constitution that there was real concern that the regulation of the militias would result in the disarming of the people:
Heller page 25-26
The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. See, e.g., Letters from The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981). John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” 2 Documentary History of the Ratification of the Constitution 508-509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no
power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. See, e.g., A Pennsylvanian III (Feb. 20, 1788), in The Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed. 2001) (hereinafter Young); White, To the Citizens of Virginia, Feb. 22, 1788, in id., at 280, 281; A Citizen of America, (Oct. 10, 1787) in id., at 38, 40; Remarks on the Amendments to the federal Constitution, Nov. 7, 1788, in id., at 556. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.
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.
5 Heh. This is one of several factual errors which found their way into the dissenting opinions (it would seem that the dissenting justices were in greater need of editors than were the framers of the Constitution). Nor was this factual error difficult to find, since it was noted and refuted in the Majority Opinion:
Heller pp. 49-50
JUSTICE STEVENS places overwhelming reliance upon this Court’s decision in United States v. Miller, 307 U. S. 174 (1939). “[H]undreds of judges,” we are told, “have relied on the view of the amendment we endorsed there,” post, at 2, and “[e]ven if the textual and historical arguments on both side of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself . . . would prevent most jurists from endorsing such a dramatic upheaval in the law,” post, at 4. And what is, according to JUSTICE STEVENS, the holding of Miller that demands such obeisance? That the Second Amendment “protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature’s power to regulate the nonmilitary use and ownership of weapons.” Post, at 2.
Nothing so clearly demonstrates the weakness of JUSTICE STEVENS’ case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [shortbarreled shotgun] 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.” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. Beyond that, the opinion provided no explanation of the content of the right.
6 No, actually. The majority instead insisted on the common sense reading of the Amendment as it was understood by the electorate at the time of its adoption, and is interpreted by the Supreme Court and inferior courts from that adoption through the late 19th century: “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” Deconstructionists need not apply!
7 A reading of the history suggests that the Supreme Court just liberated the people of Chicago from a failed policy which was both deadly and antithetical to the rights recognized by the Constitution.
8 A sad necessity arising from the deconstructionist damage caused by earlier courts which insisted on twisting the laws as written to suit their view of what ought to be.
9 Indeed not. They found the plain language that eluded, and still eludes, four justices more wed to their desired outcome than to the law as written. As Tom Maguire brilliantly snarked:
The same folks who can read the Constitution and Bill of Rights and find an unassailable right to abortion and gay marriage can't find a right to possession of a firearm.
Yep, straining at gnats while ignoring the elephant of text before their very noses.
10 It is demonstrably not true that, as JUSTICE STEVENS claims, post, at 41-42, “for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.” For most of our history the question did not present itself.
Indeed, It would seem that earlier generations, unaflicted by deconstructionism and other forms of self inflicted mental rot, read the plain meaning of the Second Amendment as written and had no question but that it guaranteed to the people the individual right to keep and bear arms.
11 Heh. Whereas the dissenting four plus Kennedy went so far as to establish standards for issues not before the court in Boumediene v Bush, the four plus Kennedy of the Heller majority limited themselves to the actual questions before the court. Odd that the editorialist seems to have missed that point. It's almost as if they had an axe to grind...
12 Whoah! Two concessions to objective reality in eleven paragraphs. How ever did the editors allow that many facts to slip through?
13 Again, those questions were not before the court. The actual wording is:
Heller pp. 54-55
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. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts 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 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). 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.26
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383-384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).
It may be objected that if weapons that are most useful in military service-M-16 rifles and the like-may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly 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 the right.
14 They can and do argue, but the fact is that strict gun control has been a failure whenever and wherever it has been attempted. The areas of the nation with the lowest rates of violent crime are invariably those where the possession and carriage of weapons is common.
15 A shotgun can indeed be an effective home defense weapon. The disadvantage of a shotgun for such use is that it is relatively slow to bring a shotgun on target, and it is not well suited to confined spaces. Not every citizen of Chicago resides in a home with halls suitable for use a bowling alleys or perpetrator skeet ranges.
16 Indeed not.
Heller p. 63
A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.
17 Guns are already illegal in Chicago and yet the violent crime rate and murder rates with firearms are on the rise... This rather reeks of the traditional leftist battlecry: "That didn't work, let's try it some more!"
18 Good luck! Get going right this instant, as it is far too important to wait on. Don't let the fact that more than 2/3rds of poll respondents agree with the court's decision get in your way, nor should you be deterred by the 3/4ths of all states ratification requirement. You go!
19 By all means, let's start NOW.
I somehow doubt that the Illinois delegation to the United States Senate will be introducing such an amendment anytime soon. That would, after all, require that those senators take a very clear stand on the issue that would be difficult to throw under the bus later. Such an amendment would also likely prove to be counterproductive to the electoral interests of at least one of those Senators.
(Hat Tip to Hot Air)
Here is the Editorial, with my fsck'ing (by footnote) after the fold:
[••• per the original]
Repeal the 2nd Amendment
Chicago Tribune Web Edition
June 27, 2008
No, we don't suppose that's going to happen any time soon1. But it should.
The 2nd Amendment to the U.S. Constitution is evidence that, while the founding fathers were brilliant men, they could have used an editor2.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
If the founders had limited themselves to the final 14 words, the amendment would have been an unambiguous declaration of the right to possess firearms. But they didn't, and it isn't3. The amendment was intended to protect the authority of the states to organize militias.4 The inartful wording has left the amendment open to public debate for more than 200 years. But in its last major decision on gun rights, in 1939, the U.S. Supreme Court unanimously found that that was the correct interpretation.5
On Tuesday, five members of the court edited the 2nd Amendment. In essence, they said: Scratch the preamble, only 14 words count.6
In doing so, they have curtailed the power of the legislatures and the city councils to protect their citizens.7
The majority opinion in the 5-4 decision to overturn a Washington, D.C., ban on handgun possession goes to great lengths to parse the words of the 2nd Amendment. The opinion, written by Justice Antonin Scalia, spends 111/2 pages just on the meaning of the words "keep and bear arms."8
But as Justice John Paul Stevens wrote in a compelling dissent, the five justices in the majority found no new evidence that the 2nd Amendment was intended to limit the power of government to regulate the use of firearms. They found no new evidence to overturn decades of court precedent.9
They have claimed, Stevens wrote, "a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th Centuries."10
•••
It's a relief that the majority didn't go further in its policymaking on gun control.11
The majority opinion states that the D.C. handgun ban and a requirement for trigger locks violate the 2nd Amendment. By virtue of this decision, Chicago's 1982 ban on handguns is not likely to survive a court challenge. A lawsuit seeking to overturn the Chicago ordinance was filed on Thursday by the Illinois State Rifle Association.12
The majority, though, did state that the right under the 2nd Amendment "is not unlimited." So what does that mean? The majority left room for state and local governments to restrict the carrying of concealed weapons in public, to prohibit weapons in "sensitive places such as schools and government buildings," and to regulate the sale of firearms. The majority allowed room for the prohibition of "dangerous and unusual weapons." It did not stipulate what weapons are not "dangerous."13
Lower courts are going to be mighty busy figuring out all of this.
We can argue about the effectiveness of municipal handgun bans such as those in Washington and Chicago. They have, at best, had limited impact. People don't have to go far beyond the city borders to buy a weapon that's prohibited within the city.14
But neither are these laws overly restrictive. Citizens have had the right to protect themselves in their homes with other weapons, such as shotguns.15
Some view this court decision as an affirmation of individual rights. But the damage in this ruling is that it takes a significant public policy issue out of the hands of citizens. The people of Washington no longer have the authority to decide that, as a matter of public safety, they will prohibit handgun possession within their borders.16
•••
Chicago and the nation saw a decline in gun violence over the last decade or so, but recent news has been ominous. The murder rate in Chicago has risen 13 percent this year. Guns are still the weapon of choice for mayhem in the U.S. About 68 percent of all murders in 2006 were committed with a firearm, according to the U.S. Department of Justice.17
Repeal the 2nd Amendment? Yes, it's an anachronism.18
We won't repeal the amendment, but at least we can have that debate.19
Want to debate whether crime-staggered cities should prohibit the possession of handguns? The Supreme Court has just said, "forget about it."
And now for the fsck'ing.
1 One of only two recognitions of objective reality in the piece. Savor it!
2 Those levels and layers of fact checkers which prevent newspapers from publishing fraudulent articles or from publishing articles which are full of demonstrable errors? I think the framers of the Constitution achieved a far greater level of readability and accuracy than this editorialist does.
3 From Justice Scalia's majority opinion:
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.”
...
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The
former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased,
“Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep
and bear Arms shall not be infringed.”
This comports well with the writings of the founding fathers on the subject.
“The Constitution shall never be construed... to prevent the people of the United States who are peaceable citizens from keeping their own arms.” - Samuel Adams
The constitutions of most of our States assert that all power is inherent in the people; that they may exercise it by themselves in all cases to which they think themselves competent, or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press.
Thomas Jefferson (letter to John Cartwright, 1824)
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.
Federalist 28, Alexander Hamilton
Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!
Seems to me that the author is either bereft of history, or a deconstructionist of the worst sort.
4 Which would require that "the People" in the Second Amendment are the several states, vice the same "People" of the rest of the bill of rights. Furthermore, we know from the debates surrounding the adoption of the Constitution that there was real concern that the regulation of the militias would result in the disarming of the people:
Heller page 25-26
The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. See, e.g., Letters from The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981). John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” 2 Documentary History of the Ratification of the Constitution 508-509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no
power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. See, e.g., A Pennsylvanian III (Feb. 20, 1788), in The Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed. 2001) (hereinafter Young); White, To the Citizens of Virginia, Feb. 22, 1788, in id., at 280, 281; A Citizen of America, (Oct. 10, 1787) in id., at 38, 40; Remarks on the Amendments to the federal Constitution, Nov. 7, 1788, in id., at 556. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.
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.
5 Heh. This is one of several factual errors which found their way into the dissenting opinions (it would seem that the dissenting justices were in greater need of editors than were the framers of the Constitution). Nor was this factual error difficult to find, since it was noted and refuted in the Majority Opinion:
Heller pp. 49-50
JUSTICE STEVENS places overwhelming reliance upon this Court’s decision in United States v. Miller, 307 U. S. 174 (1939). “[H]undreds of judges,” we are told, “have relied on the view of the amendment we endorsed there,” post, at 2, and “[e]ven if the textual and historical arguments on both side of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself . . . would prevent most jurists from endorsing such a dramatic upheaval in the law,” post, at 4. And what is, according to JUSTICE STEVENS, the holding of Miller that demands such obeisance? That the Second Amendment “protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature’s power to regulate the nonmilitary use and ownership of weapons.” Post, at 2.
Nothing so clearly demonstrates the weakness of JUSTICE STEVENS’ case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [shortbarreled shotgun] 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.” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. Beyond that, the opinion provided no explanation of the content of the right.
6 No, actually. The majority instead insisted on the common sense reading of the Amendment as it was understood by the electorate at the time of its adoption, and is interpreted by the Supreme Court and inferior courts from that adoption through the late 19th century: “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” Deconstructionists need not apply!
7 A reading of the history suggests that the Supreme Court just liberated the people of Chicago from a failed policy which was both deadly and antithetical to the rights recognized by the Constitution.
8 A sad necessity arising from the deconstructionist damage caused by earlier courts which insisted on twisting the laws as written to suit their view of what ought to be.
9 Indeed not. They found the plain language that eluded, and still eludes, four justices more wed to their desired outcome than to the law as written. As Tom Maguire brilliantly snarked:
The same folks who can read the Constitution and Bill of Rights and find an unassailable right to abortion and gay marriage can't find a right to possession of a firearm.
Yep, straining at gnats while ignoring the elephant of text before their very noses.
10 It is demonstrably not true that, as JUSTICE STEVENS claims, post, at 41-42, “for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.” For most of our history the question did not present itself.
Indeed, It would seem that earlier generations, unaflicted by deconstructionism and other forms of self inflicted mental rot, read the plain meaning of the Second Amendment as written and had no question but that it guaranteed to the people the individual right to keep and bear arms.
11 Heh. Whereas the dissenting four plus Kennedy went so far as to establish standards for issues not before the court in Boumediene v Bush, the four plus Kennedy of the Heller majority limited themselves to the actual questions before the court. Odd that the editorialist seems to have missed that point. It's almost as if they had an axe to grind...
12 Whoah! Two concessions to objective reality in eleven paragraphs. How ever did the editors allow that many facts to slip through?
13 Again, those questions were not before the court. The actual wording is:
Heller pp. 54-55
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. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts 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 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). 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.26
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383-384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).
It may be objected that if weapons that are most useful in military service-M-16 rifles and the like-may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly 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 the right.
14 They can and do argue, but the fact is that strict gun control has been a failure whenever and wherever it has been attempted. The areas of the nation with the lowest rates of violent crime are invariably those where the possession and carriage of weapons is common.
15 A shotgun can indeed be an effective home defense weapon. The disadvantage of a shotgun for such use is that it is relatively slow to bring a shotgun on target, and it is not well suited to confined spaces. Not every citizen of Chicago resides in a home with halls suitable for use a bowling alleys or perpetrator skeet ranges.
16 Indeed not.
Heller p. 63
A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.
17 Guns are already illegal in Chicago and yet the violent crime rate and murder rates with firearms are on the rise... This rather reeks of the traditional leftist battlecry: "That didn't work, let's try it some more!"
18 Good luck! Get going right this instant, as it is far too important to wait on. Don't let the fact that more than 2/3rds of poll respondents agree with the court's decision get in your way, nor should you be deterred by the 3/4ths of all states ratification requirement. You go!
19 By all means, let's start NOW.