Usually Quora Is a Cesspit

[Subdeacon Joe]

But this is good:

 

Pretty good breakdown of why so many gun laws are in place now - we have been teaching the absolute wrong idea when it comes to the 2nd AM in our law schools - have been since the 30s-40s era.

 

Why do so many believe that the 2nd amendment is reserved for a militia, when it clearly states the right is that of the people? Why are no other rights in the bill of rights reserved for specific groups?

To answer the actual question asked: “Why do so many believe that the 2nd amendment is reserved for a militia, when it clearly states the right is that of the people? Why are no other rights in the bill of rights reserved for specific groups?”

 

Because that’s what they want it to mean, and how it was interpreted and taught in law schools from 1940 until the Heller decision in 2008.

In 1934, Congress, understanding that they did not have the authority under the Constitution to regulate firearms outright, did an end-run around the Constitution by camouflaging their restrictions on machine guns and other “exceptionally dangerous” weapons, as a tax. This was the National Firearms Act.

A few years later, a carefully constructed case was brought through the courts involving a pair of bank robbers who were charged with transporting an unregistered (didn’t pay the tax), short-barreled shotgun across state lines, in violation of the NFA. Their conviction was challenged on Second Amendment grounds and the case eventually made it to the Supreme Court and is known as the Miller decision.

In Miller, the Court did some cursory review of the Second Amendment, and in their analysis, they commented that the purpose and meaning of the amendment must be viewed with the prefatory clause — “A well regulated militia being necessary to the security of a free state” — in mind. They went on to conclude that since no one had presented any evidence that a short-barreled shotgun was a type of weapon that was common for use in a militia, that the weapon was not protected by the Second Amendment.

This was a pretty weird case and a strange ruling by the Court, in that they focused on the weapon, not the people, and there was no one arguing for Miller and his associate. The only arguments heard were from the government side. The Court remanded the case back down to the lower courts where it was never taken up because there was no one to argue it.

Two important points need to be noted about the actual Miller decision:

1. The government argued for a “collective” rather than an “individual” right theory, and that argument was rejected by the court.

2. The conclusion of the Court strongly suggested that weapons that are commonly used by military forces are the types of weapons the Second Amendment protects.

Shortly after the Court’s decision in Miller, a lower court hearing a Second Amendment challenge, took that little piece of introductory dicta from the Miller decision about it being viewed with the militia clause in mind, and twisted that to mean that militia service was a prerequisite to protections of the Second Amendment. That court used that bit of dicta to resurrect the “collective right” theory that the Court had actually dismissed in Miller.

Subsequent courts used that “collective right” interpretation as their basis for rulings for the next 60+ years, while the Supreme Court just let the blatant misconstruction of the Miller decision slide, refusing to hear any Second Amendment challenges.

The “collective right” interpretation became the standard interpretation, and that’s how it was taught in law schools and discussed in academia for decades. Then in the mid-1970s, a young law student named David Hardy was tasked with writing an article on a tertiary subject, and he got tangled up in the details of Second Amendment jurisprudence. He noticed that the record did not comport with what he was being taught, so he dug deeper, and documented the long-suppressed history and facts of the matter. He wrote down his findings in an article for his school’s law review and got it published. That article, being in a small, not particularly well-regarded law journal, went widely unnoticed, but caught the attention of Professors Don Kates and Joyce Lee Malcolm, who delved into deeper legal and historical research, and eventually led to Kates writing an article for the Michigan Law Review. That article caught more attention and prompted wider discussions in the halls of academia. Then noted legal scholar, Professor Sanford Levinson decided that he was going to put a nail in the coffin of this crazy “individual right” theory of the Second Amendment, so he dug into the subject. His conclusion took the form of a detailed article in the Yale Law Journal titled The Embarrassing Second Amendment, and to his credit, his conclusion was that the Second Amendment did indeed mean exactly what it said, and protected an individual right to arms. As evidenced in his title, he was not particularly happy with that conclusion, but he had the integrity to admit that he and virtually all of legal academia and the courts had gotten it wrong for decades.

Fast forward to 2008 when the Supreme Court, for the first time since 1939, took an in-depth look at the Second Amendment in the case of DC v. Heller. In that 5–4 decision, the Court concluded that the Second Amendment protected an individual right, and even the 4 dissenting justices agreed that the “collective right” theory was untenable, though they still argued that some connection to militia service should be attached to the right, and Justice John Paul Stevens argued that the framers must have intended the operative clause — “the right of the people to keep and bear arms shall not be infringed.” — to include an unspoken “unreasonably” in it subtext.

Since the Heller decision, lower courts have again, just as they did with Miller, taken bits and pieces of the dicta from that opinion, and distorted it to justify all manner of bad rulings, and just as with Miller, the SCOTUS has refused to review these cases, allowing the distortions to stand and more bad precedents to be set.

I’ll also note that virtually every SCOTUS notice of the Second Amendment prior to the Miller decision, clearly understood the right to belong to every individual citizen. Even in the notorious Dred Scott decision, Justice Taney used the Second Amendment to argue against recognizing “those of the African race” as being citizens, because that would mean that they would then have the right to own and carry weapons wherever they went — clearly not a militia-dependent interpretation.

So now you know why so many people don’t think the Second Amendment really means what it clearly says — because they don’t want it to mean that, and they’re willing to bend over backwards to try and make it say something else.

[Subdeacon Joe]

https://openyls.law.yale.edu/server/api/core/bitstreams/573d9c37-9ba9-4db9-8a6f-498ed65fee5c/content

[Blackwater 53393]

16 hours ago, Subdeacon Joe said:

https://openyls.law.yale.edu/server/api/core/bitstreams/573d9c37-9ba9-4db9-8a6f-498ed65fee5c/content

About the only thing that I can surmise from the above is that this one individual is at least willing to have fair and open discussion! 
 

He DID validate every single argument that the advocates of a strict interpretation of the Constitution and the Second Amendment have offered, whether he actually intended to or not!

[Subdeacon Joe]

30 minutes ago, Blackwater 53393 said:

About the only thing that I can surmise from the above is that this one individual is at least willing to have fair and open discussion! 
 

He DID validate every single argument that the advocates of a strict interpretation of the Constitution and the Second Amendment have offered, whether he actually intended to or not!

 

Sort of like John Lott. He was originally pretty neutral, possibly very slightly anti, but when he dug into the subject, he found that there was really little or nothing to support any of the anti-gun claims. 

[Sgt. C.J. Sabre, SASS #46770]

As Subdeacon Joe mentioned, many people refer to the "Militia" mentioned in the Second Amendment. Very few people know just what that means. This is from The U.S, Code. Federal Law. It spells out exactly WHO the Militia is:

10 U.S. Code § 246 - Militia: composition and classes

(a)

The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b)The classes of the militia are—(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

 

32 U.S. Code § 313 - Appointments and enlistments: age limitations

(a)To be eligible for original enlistment in the National Guard, a person must be at least 17 years of age and under 45, or under 64 years of age and a former member of the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps. To be eligible for reenlistment, a person must be under 64 years of age.

 

(b)To be eligible for appointment as an officer of the National Guard, a person must—(1)

be a citizen of the United States; and

(2)be at least 18 years of age and under 64.

 

As you can see, many of us here no longer qualify because of our age. But I'm not letting that stop me.

 

 

[J.D. Daily]

Lawyers that don't support the plain text meaning circa 1791 of the amendment that is the opinion of the 6 justices in that are the SCOTUS majority play a rope-a-dop game with SCOTUS majority opinions in Heller, Caetano & Bruen.  They add to or ignore words in the Heller opinion.  I.E. Unusually dangerous before dangerous and unusual or delete lawful purpose before self defense.  With Bruen they move a part of the government's burden to the challenger(s).  Per Bruen the challengers burden is to argue the regulation impacts the plain text of the 2nd Amendment.  Per Wolford v. Lopez once the challenger meets their burden the regulation is presumptively unconstitutional.  Then the burden shifts to the government.  The government must either argue the arm regulated is both dangerous AND unusual (machine gun) or support the regulation by presenting several analogs of the regulation from the historical traditions of arms regulation.  The relevant period is colonial & founding through 14th Amendment ratification.  The regulation must not be an outlier or restricted to a single region.

Wolford admonishes inferior court judges & the government for smuggling their burden to prove the regulated arm is dangerous & unusual into the challenger's burden.  Inferior court judges & governments also ignore the Bruen text on page 19 which states arms include instruments the facilitate armed self defense.  Merriam-Webster defines facilitate as a) to bring something easier. b) to help something run more smoothly and effectively.  Therefore inferior court judges that uphold magazine capacity limits, suppressors, bump stocks, forced reset triggers, modification that increase a semi-auto firearm's cyclic rate of fire, etc. are unconstitutional because there are no analogs nor similar regulations in pre 14th Amendment history.

P.S. Fortunately some recalcitrant circuit court judges have gotten the message.  The 1st, 2nd, 4th & 9th circuits haven't.  I wonder how they will ignore the June 2027 ruling in Viramontes v. Cook County?

[Vail Vigilante]

I think we are in a dry run for an eventual Viramontes positive decision. All they have to do is frighten dealers to not engage with a judicial decision. Customers abandon otherwise well loved dealers and their goal is achieved. The don’t need a law or a congressional vote or a presidential signature. Just pit customers against dealers.. i admit to being caught up in this. So for now I have decided to give some of my formerly favorite dealers an amnesty of sorts before I yank my business (albeit meager). I’m not going to mention them by name or my suspicion(s). I might be proven wrong. I hope I am.