Supreme Court Upholds Gun Right

[Buffalo Roam]

Nonetheless, the point is that the passage quoted has zip to do with self defense, and the Heller majority did not say that you have a right (individual or otherwise) to oppose the federal government on grounds of tyranny.

I don't deny that the second amendment grants an individual right, but if the people in 1791 were evaluating it based on the plain reading of the passage from the Federalist Papers you quoted, then Joe Everyman would likely have thought it related to the right to own guns for use in the militias and in killing "tyrannical" federal employees. I am not sure that the latter was endorsed by the Heller majority. (The Court did endorse several other reasons for the amendment unstated in the text of the Constitution, but those other reasons are neither here nor there as they were unstated in the quote from the Federalist papers as well.)

As the Whiskey Rebellion showed, though, you have to win your fight to win the debate over what is "actionable tyranny". If you lose, you're just a "criminal" and dealt with as criminal. If you do win, though, then the "legality" of your insurrection becomes an irrelevancy, as what you say is the law, by force of arms. The right to secede from the Union wasn't foreclosed by the Constitution (as the Supreme Court decided in Texas v. White), it was and is foreclosed by the fact that the non-seceding states and/or the federal government will beat secessionists into submission, by force of arms. And if they lose that fight, then the secessionists have the de facto right to secede, the text of the Constitution be damned.

c. Meaning of the Operative Clause. Putting all of
these textual elements together, we find that they guarantee
the individual right to possess and carry weapons in
case of confrontation. This meaning is strongly confirmed
by the historical background of the Second Amendment.
We look to this because it has always been widely understood
that the Second Amendment, like the First and
Fourth Amendments, codified a pre-existing right. The
very text of the Second Amendment implicitly recognizes
the pre-existence of the right and declares only that it
“shall not be infringed.” As we said in United States v.
Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right
granted by the Constitution. Neither is it in any manner
dependent upon that instrument for its existence. The
Second amendment declares that it shall not be infringed

 

[Buffalo Roam]

Nonetheless, the point is that the passage quoted has zip to do with self defense, and the Heller majority did not say that you have a right (individual or otherwise) to oppose the federal government on grounds of tyranny.

I don't deny that the second amendment grants an individual right, but if the people in 1791 were evaluating it based on the plain reading of the passage from the Federalist Papers you quoted, then Joe Everyman would likely have thought it related to the right to own guns for use in the militias and in killing "tyrannical" federal employees. I am not sure that the latter was endorsed by the Heller majority. (The Court did endorse several other reasons for the amendment unstated in the text of the Constitution, but those other reasons are neither here nor there as they were unstated in the quote from the Federalist papers as well.)

As the Whiskey Rebellion showed, though, you have to win your fight to win the debate over what is "actionable tyranny". If you lose, you're just a "criminal" and dealt with as criminal. If you do win, though, then the "legality" of your insurrection becomes an irrelevancy, as what you say is the law, by force of arms. The right to secede from the Union wasn't foreclosed by the Constitution (as the Supreme Court decided in Texas v. White), it was and is foreclosed by the fact that the non-seceding states and/or the federal government will beat secessionists into submission, by force of arms. And if they lose that fight, then the secessionists have the de facto right to secede, the text of the Constitution be damned.

As the most important early American edition of Blackstone’s
Commentaries (by the law professor and former
Antifederalist St. George Tucker) made clear in the notes
to the description of the arms right, Americans understood
the “right of self-preservation” as permitting a citizen to
“repe[l] force by force” when “the intervention of society in
his behalf, may be too late to prevent an injury.” 1 Blackstone’s
Commentaries 145–146, n. 42 (1803) (hereinafter
Tucker’s Blackstone). See also W. Duer, Outlines of the
Constitutional Jurisprudence of the United States 31–32
(1833).

 

[Buffalo Roam]

Although we agree with petitioners’ interpretive assumption
that “militia” means the same thing in Article I and
the Second Amendment, we believe that petitioners identify
the wrong thing, namely, the organized militia.
Unlike armies and navies, which Congress is given the
power to create (“to raise . . . Armies”; “to provide . . . a
Navy,” Art. I, §8, cls. 12–13), the militia is assumed by
Article I already to be in existence. Congress is given the
power to “provide for calling forth the militia,” §8, cl. 15;
and the power not to create, but to “organiz[e]” it—and not
to organize “a” militia, which is what one would expect if
the militia were to be a federal creation, but to organize
“the” militia, connoting a body already in existence, ibid.,
cl. 16. This is fully consistent with the ordinary definition
of the militia as all able-bodied men. From that pool,
Congress has plenary power to organize the units that will
make up an effective fighting force.

 

[Buffalo Roam]

Pandaemoni, here you are the right to self defence as included in the SCOTUS decision.

30 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
XI, §26 (1796), in 6 Thorpe 3414, 3424; Me. Const., Art. I,
§16 (1819), in 3 id., at 1646, 1648. That of the nine state
constitutional protections for the right to bear arms enacted
immediately after 1789 at least seven unequivocally
protected an individual citizen’s right to self-defense is
strong evidence that that is how the founding generation
conceived of the right. And with one possible exception
that we discuss in Part II–D–2, 19th-century courts and
commentators interpreted these state constitutional provisions
to protect an individual right to use arms for selfdefense.
See n. 9, supra; Simpson v. State, 5 Yer. 356, 360
(Tenn. 1833).

 

[Pandaemoni]

The Founders also wrote into the Constitution, that, any right not specifically given to the Government, resided in the domain of the People, in another words, If the Power isn't given specifically granted to the Federal Government, by the Constitution, that power and right belong to the Individual...the People.

You mean the 9th or the 10th amendment? The Constitution in the 10th amendment says that rights not granted to the *federal* government are retained by the States or the people. The Constitution takes no position on which unenumerated rights devolve where.

It also says that the listing of certain rights (i.e. in the Bill of Rights) is not meant to be exhaustive, in the 9th amendment.

 

[Pandaemoni]

Pandaemoni, here you are the right to self defence as included in the SCOTUS decision.

30 DISTRICT OF COLUMBIA v. HELLER
Opinion of the Court
XI, §26 (1796), in 6 Thorpe 3414, 3424; Me. Const., Art. I,
§16 (1819), in 3 id., at 1646, 1648. That of the nine state
constitutional protections for the right to bear arms enacted
immediately after 1789 at least seven unequivocally
protected an individual citizen’s right to self-defense is
strong evidence that that is how the founding generation
conceived of the right. And with one possible exception
that we discuss in Part II–D–2, 19th-century courts and
commentators interpreted these state constitutional provisions
to protect an individual right to use arms for selfdefense.
See n. 9, supra; Simpson v. State, 5 Yer. 356, 360
(Tenn. 1833).

Still, if the states expressly stated "self-defense" as a right in their constitutions (and they did), why did Madison stand mute, not using the same words? I mean seven states said it expressly, two excluded it and presumably the other three states were silent, and Madison went with the two that never mentioned self-defense.

I don't deny that there is a right to self-defense to save lives, I just don't think that's a very compelling argument. One could just as easily argue that the fact that the second amendment was framed differently implies that it means something different.

 

[Echo3Romeo]

If that were true, the citizenry wouldn't need to keep arms, they could rely on the 'well regulated militia' that is the army, to protect them.

But the "well regulated militia" is not the active military, nor is it the national guard. Rather, it is the counterweight to those forces, comprised of citizens that meet the criteria of the militia act I posted earlier, who the framers of our Constitution wanted to retain the right to defend themselves against a tyrannical regime like they had just finished doing at the time of the Constitution's ratification. The Federalist Papers excerpts that Buffalo has been posting make their intent clear enough.

 

[phlogistician]

But the "well regulated militia" is not the active military, nor is it the national guard. Rather, it is the counterweight to those forces, comprised of citizens that meet the criteria of the militia act I posted earlier, who the framers of our Constitution wanted to retain the right to defend themselves against a tyrannical regime like they had just finished doing at the time of the Constitution's ratification. The Federalist Papers excerpts that Buffalo has been posting make their intent clear enough.

So how do these people get organised and combat the military and the national guard?

When does an average person turn cop killer?

Let's face it, no-one would dare rebel. They didn't do a damned thing when McCarthy was trampling all over the constitution, and they won't do a damned thing in the future. And as it's already been pointed out, [it]if[/it] the militia won, the fact they were allowed guns in the constitution means nothing. [it]When [/it] they lose, they would still be tried for treason, or terrorism. 2A means very little wrt rebelling against the govt.

 

[Echo3Romeo]

So how do these people get organised and combat the military and the national guard?

They don't; they're the unorganized militia. And if you seriously think that the US military could put down a popular revolt then you are wrong. The prevalence of firearms makes any population difficult to control, even if they are completely disorganized and have little if any training. See also: Iraqi insurgency.

When does an average person turn cop killer?

Don't do this. If you can't engage in a discussion without posting inane questions that make you look foolish, stop.

As an aside, I'm not arguing that people would be willing to revolt, and I have no interest in doing so. I'm explaining why "gun culture" in the US is so different than elsewhere in the world in the hopes that some of you can understand why it is so.

 

[madanthonywayne]

Let's face it, no-one would dare rebel. They didn't do a damned thing when McCarthy was trampling all over the constitution, and they won't do a damned thing in the future.

Few saw McCarthy's actions as oppressive at the time, but rather as helping root out traitors from our midst. Why would anyone rebel against that?

 

[pjdude1219]

I am reading it as it was written and intended 200 years ago,

Your missing my point in why i think it is needed to understand the why and context of it 200 years ago. You need to understand that so it interpertation can be updated. It the only part of the constitution that has been updated in 200 years which is bad. A understanding 200 years old is a flawed view 200 years later becuase it doesn't take the changes into account. as to bearing arms in the framers time it was used almost exclusively in a milatary context. Also if states felt the need to say they wanted you to have the right to bear arms in your personal defense it clearly show that it wasn't already covered.

 

[Buffalo Roam]

Your missing my point in why i think it is needed to understand the why and context of it 200 years ago. You need to understand that so it interpertation can be updated. It the only part of the constitution that has been updated in 200 years which is bad. A understanding 200 years old is a flawed view 200 years later becuase it doesn't take the changes into account. as to bearing arms in the framers time it was used almost exclusively in a milatary context. Also if states felt the need to say they wanted you to have the right to bear arms in your personal defense it clearly show that it wasn't already covered.

??????????????????????????????????????

Your missing my point in why i think it is needed to understand the why and context of it 200 years ago. You need to understand that so it interpertation can be updated. It the only part of the constitution that has as to bearing arms in the framers time it was used almost exclusively in a milatary context. been updated in 200 years which is bad

No I didn't miss your point, as your point doesn't exist.

A understanding 200 years old is a flawed view 200 years later becuase it doesn't take the changes into account. as to bearing arms in the framers time it was used almost exclusively in a milatary context.

Now why exactly is the Constitution Flawed? Nothing has changed in 200 years as to the need for defence, of self, the Republic, and the Nation.

And my friend you are wrong as to bearing arms in the framers time it was used almost exclusively in a milatary context, read the SCOTUS decision, and then tell me where that interpretation was ever expressed.

Explain thses points from the SCOTUS decission?

Although we agree with petitioners’ interpretive assumption
that “militia” means the same thing in Article I and
the Second Amendment, we believe that petitioners identify
the wrong thing, namely, the organized militia.
Unlike armies and navies, which Congress is given the
power to create (“to raise . . . Armies”; “to provide . . . a
Navy,” Art. I, §8, cls. 12–13), the militia is assumed by
Article I already to be in existence. Congress is given the
power to “provide for calling forth the militia,” §8, cl. 15;
and the power not to create, but to “organiz[e]” it—and not
to organize “a” militia, which is what one would expect if
the militia were to be a federal creation, but to organize
“the” militia, connoting a body already in existence, ibid.,
cl. 16. This is fully consistent with the ordinary definition
of the militia as all able-bodied men. From that pool,
Congress has plenary power to organize the units that will
make up an effective fighting force.


As the most important early American edition of Blackstone’s
Commentaries (by the law professor and former
Antifederalist St. George Tucker) made clear in the notes
to the description of the arms right, Americans understood
the “right of self-preservation” as permitting a citizen to
“repe[l] force by force” when “the intervention of society in
his behalf, may be too late to prevent an injury.” 1 Blackstone’s
Commentaries 145–146, n. 42 (1803) (hereinafter
Tucker’s Blackstone). See also W. Duer, Outlines of the
Constitutional Jurisprudence of the United States 31–32
(1833).

c. Meaning of the Operative Clause. Putting all of
these textual elements together, we find that they guarantee
the individual right to possess and carry weapons in
case of confrontation. This meaning is strongly confirmed
by the historical background of the Second Amendment.
We look to this because it has always been widely understood
that the Second Amendment, like the First and
Fourth Amendments, codified a pre-existing right. The
very text of the Second Amendment implicitly recognizes
the pre-existence of the right and declares only that it
“shall not be infringed.” As we said in United States v.
Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right
granted by the Constitution. Neither is it in any manner
dependent upon that instrument for its existence. The
Second amendment declares that it shall not be infringed

 

[pjdude1219]

No I didn't miss your point, as your point doesn't exist.

just because you lack the capability to understand it doesn't mean it doesn't exist.

Now why exactly is the Constitution Flawed? Nothing has changed in 200 years as to the need for defence, of self, the Republic, and the Nation.

I never said the constitution was flawed what i said was an understanding of how it should be interpertated from 200 years ago would be flawed in todays world.

as to the other comments why would a bunch of right wingers writing the majority opinion talk about ideas counter to what they believe. i was refering to historians and the like that studied the era. If you look at those it shows them using it in a milatary context.

 

[Buffalo Roam]

Still, if the states expressly stated "self-defense" as a right in their constitutions (and they did), why did Madison stand mute, not using the same words? I mean seven states said it expressly, two excluded it and presumably the other three states were silent, and Madison went with the two that never mentioned self-defense.

I don't deny that there is a right to self-defense to save lives, I just don't think that's a very compelling argument. One could just as easily argue that the fact that the second amendment was framed differently implies that it means something different.

Luckily you weren't the one who wrote the Constitution, now if you care to read the Decision and Echo3Romeo, has kindly provided the PDF file, you will find all your questions answered, and those answers as cited in the Decision are that the 2nd Amendment is a individual right, involving the people, as individuals, with the right to, keep and bear arms, for self defence, and as a balance to the federal government, independent of any Federal Service, that the People are the Militia, and that the only thing the Government can do with them is to organize them when needed for defence of the State, into Companies, Battalions, Brigades, ..............that the Militia exist independent of the Government.

Now read the dam Decision, or are you to stupid to read a legal decision from the Supreme Court of the United States of America.

Everything you are asking is answered in a far more precise manner that I can give you, other than the quotes, taken verbatim from the decision, which you seem to fail in comprehension of said point.

 

[Pandaemoni]

Now read the dam Decision, or are you to stupid to read a legal decision from the Supreme Court of the United States of America.

Yes, I am too stupid to read a legal decision. You have found me out. I hope, someday, to aspire to your level of legal acumen, though I also hope to get there with a little less frustration than you seem to be feeling.

Again, though, I am happy with the decision and never once suggested that the second amendment was a collective right, however I hope the Court came up with a better argument on including the right of gun ownership for self-defense purposes than something akin to the syllogism:

Seven out of fourteen states expressly protected gun ownership for self defense
Seven states did not
Therefore, the second amendment agrees with the former even though the framers never used the words "self-defense."​

Even if there is a right of self-defense (and I agree there is), that is still a pretty lousy argument, as a matter of logic, because the framers must have been aware of the differences between the states on the point, and did not clearly side with the former group. The truth is though, Scalia can be right as a matter of law and yet still offer up fallacious arguments for why, so attacking the logic is not by itself a refutation of his position.

An interesting aside, if there is a broad right to use guns for self-defense, then there is, perforce, a right of self defense. In that case there might be limits on restrictions the states can impose on that right. Some states still have the duty to retreat, even when in one's own home. I wonder if Heller will be used to argue that the duty to retreat is an unconstitutional restriction on the constitutional right to self-defense. For that matter, Scalia talked about protecting "hearth and home", perhaps one could even argue that there's a right to defense of property, if one takes his words at face value.

 

[Bells]

Don't do this. If you can't engage in a discussion without posting inane questions that make you look foolish, stop.

He has a point though. When would the average person be willing to turn their weapons on law enforcement? At what point would the public have to be pushed for the average civilian to think it was necessary to do so? And if it ever did get to that point, wouldn't what you said earlier also count for something? The fact that the majority of soldiers would desert instead of killing American civilians to follow the orders of a tyrannical Government?

 

[Arsalan]

Ah, like al Qaeda itches:

And blows up Muslims.

And chops off their heads.

And roasts them over open flames.

And rapes them.

And that's just the hardcore Muslims.

We have our guns to kill them and any other fascistic idiot of a mind to step beyond their natural ability to persuade in a gentleman's fashion.

Punk.

Strange, thats the same kind of thinking the Iraqis have atm regarding the troops that invaded their country and occupy them atm

I find the similarities between Iraq being controlled by an overseas power and the colonials being controlled by an oversea power very funny I think we all know who won in the end

 

[Arsalan]

Dar'al Harb (or Dar'ul Harb -arab. House of War): All countries and areas, in which Moslems do not have the power yet. In Islam the world is uncompromisingly divided between dar al-Islam, the House of Islam, and dar al-Harb, the House of War, where infidels have not yet been subjugated to Islam. The Jihad is the “struggle” to expand Islam, to create the conditions where Moslems may rule, and Islam may prevail. It has no end, until its goal is reached, whatever periods of quiescence must be observed. The deceptive Islam means Peace is thus part of the Jihad.

Dar'al Islam (or Dar'ul Islam -arab. House of Peace): All countries in the present or in the past to be Islamic controlled. Therefore also Spain, the Balkans and Israel belong to dar-al-Islam. Whenever Moslems talk about Islam as peaceful, they really mean the entire world ruled by Allah, nothing less. Places or lands of infidels aren't so pacified until they are ruled solely by the Sharia.

Dawa (Dawad or D'awa): Request to join Islam, last ultimatum before 'legitimate' conquest by force.

These arent in the Quran or the Hadith, but dont let that stop you! You do your location proud!

 

[lepustimidus]

On the contrary. The handgun laws have been quite effective since they were implemented. How many mass shootings have there been in Australia since then?

I'll give you a hint. It starts with a "z" and ends with an "o".

Again, I refer you to my example of the Patriot Act. I suggest you ponder whether simply because America has not had a terrorist attack since the introduction of the Patriot Act, that this is evidence of the Patriot Act's effectiveness.

Simply because there has not been a shooting spree for 6 years is not evidence that the handgun laws have been effective. Correlation does not imply causation, which is demonstrated by the fact that Australia was massacre free for 9 years up until the Port Arthur massacre, when gun laws were lax. Hence according to your OWN logic, lax gun laws help prevent massacres.

I'm sure Americans would disagree with you about the ineffectiveness of the Patriot Act. They think the legislation is apt and have prevented other attacks.

So now you're speaking for all Americans? WTF?!

I also note that you very cleverly neglected to respond to my observations about the wars in Iraq and Afghanistan, and how according to your logic, they could be attributed to the ZERO terrorist attacks in America. Do you think that American intervention in Iraq and Afghanistan have been responsible for preventing terrorist attacks in the U.S.A, Bells? Please, a simple yes or no will suffice.

Australia was massacre free for 9 years even with the gun laws that were in place. Yes MH, there were laws in place before then.

But not the same stringent laws that were implemented after Port Arthur. Yet there wasn't a massacre for NINE YEARS! Yet with the implementation of the new laws after Port Arthur, there was a massacre within SIX years.

Please tell me how this works, Bells.

Lax gun laws = Massacre every 9 years.

Gun restriction = Massacre every 6 years.

Gun restriction works?

But here's the thing. They weren't enough because we still had the Port Arthur massacre

Given that Australia was massacre free for NINE years, I'd say that guns were restricted enough. 30 people killed by a loony with a gun every 9 years is hardly even a dent. More people are killed by lightning strikes.

. Can you see where I am going with this? It was that massacre that tipped the scales in the eyes of the Australian public. It was just too damned easy for people like Bryant to obtain a weapon legally. The same applies for the Monash shooting. He obtained his handguns legally and too easily.

That's the price you pay for freedom. It is also quite easy for these individuals to obtain machetes, fire axes, fertilizer and charcoal.

The Patriot Act is a completely different species to the gun laws put in place in Australia.

The Patriot Act is analogous to anti-gun legislation, because it exploits public paranoia to further restrict the rights of citizens.

It was my cousin's husband who was one of the survivors from that building and even he, a responsible gun owner who loved his weapon, saw that having a gun was bad.

Then he doesn't need to have one. He isn't me. What's the problem here, exactly?

Exaggeration and fear? There was no exaggeration. Fear? Yes. Hell yes there was fear that any law abiding citizen could walk into a gun shop, register for a license and then go out and shoot up the general public.
Port Arthur taught us one thing and that was Bryant should never have been allowed to purchase those weapons.

And we have restrictive road laws as well MH. Funny how you're not complaining about that.

Restrictive road laws don't come even close to being as draconian as gun laws, despite the fact that far more idiots have access to a car, and far more people are killed on our roads than by 100 Port Arthur massacres.

For example, even replicas of Polish pistols from the 1600's are prohibited, unless you pay a significant fee and have been a member of a collector's club for 12 (?) months. Why? Because such pistols might be 'used in a robbery', despite the fact that they can't fire and don't even resemble modern firearms.

Such ridiculous bullshit laws occur because of a weak minded public, and a nanny government.

And? Welcome to the real world MH. We don't live in a state of fear because we know that the average John Doe cannot walk into a gun store to purchase a weapon and then go home and shoot his family or walk into a populated area and start shooting everyone in sight. Strange, I know, for you to think it is an infringement of his right to do this, but hey, that's just the way the cookie crumbled.

So now you're painting everyone who wants a gun as a potential family murderer? What was I saying about paranoia? :shrug:

What right to "bear arms"? Australia is a different country to the US with a different constitution and no Bill of Rights.

Australians should have the right to bear arms. I don't care what the fuck is in the Constitution, there are a lot of basic rights Australians take for granted which AREN'T explicitly mentioned in the Constitution.

The Australian public, is for the majority, anti-firearm.

Conjecture.

Thus, they elect Governments that support their views. If you don't like it, you can always move to the US.

Perhaps they should have told that to Rosa Parks, hey? "You don't like apartheid, you can always move to Zimbabwe."

People who have farms can own firearms. Just not automatic or semi-automatic ones. Country vets also own firearms. So how does the gun laws discriminate against them?

Given that law enforcement takes longer to arrive in rural areas, individuals who live in the country are in greater need of a gun to defend themselves in the event of a criminal intrusion.

And women? LOL.. That's rich. How is it discriminatory against women to not be allowed to "bear arms"?

Because in general, women are physically weaker than men. Guns, especially handguns, help level the playing field. You can fire a handgun irrespective of strength.

 

[Challenger78]

Someone please explain why you would need 30 bullets to kill a serial killer ? I suppose one or two from a revolver would do it, and then you'd have to stop to reload... So hence, just ban assualt, weapons, rifles, grenades ,etc.