Former Supreme Court justice: ‘Repeal the Second Amendment’

[IsailedawayfromFR]

Until Heller, the 2A addressed only the states' authority to maintain and regulate their militias.    Until Heller, the 2A offered no protection of the right to individual self-defense.   

Wrong once again.

The second amendment addresses what it addresses, and is clear.

It is only YOUR opinion that says that it addresses only a states' authority until Heller.

[Jazzhead]

The minority is just that.  The minority.  The dissenting opinion written by the people who drew the short end of the straw.

It's really kinda amazing to see you place such importance on the dissent on things you disagree with...like gun ownership.  But you care not one whit about the dissent in things like Roe v. Wade or what Justice Scalia said in the dissent in Lawrence v. Texas when it's one of your pet Liberal causes.

But then again...that's par for the course for a Liberal.

You keep missing my point.  The minority opinion is important because it shows that the Heller ruling is vulnerable.   The minority view is that the predicate clause limits the purpose of the 2A, and that the Founders did not intend the 2A to protect any "natural right" of self-defense outside the context of the states' well-regulated militias.

I agree with the result of the Heller decision,  but I fear the reasoning -  that the natural right is protected by the 2A- is vulnerable to being overturned.   It is contrary to the 2A's plain language (Scalia concluded the predicate clause is merely prefatory,  a most un-conservative approach to statutory interpretation),  as well as the Founders' intent (see Prof. Epstein's article) that the 2A's purpose was to protect the States' right to maintain their militias from usurpation by the new Federal government.

The individual RKBA is, IMO, an unenumerated natural right that is protected by the Constitution in the same way it protects the unenumerated rights of privacy and self-determination.  No, that's not what Heller says,  but Heller's reliance on the 2A is disputed and can easily be overturned.   It is that vulnerability that prompts me to advocate for codification of the right,  to provide a sounder basis for the right than a flawed Second Amendment and its inconvenient predicate clause.   

[txradioguy]

You keep missing my point.  The minority opinion is important because it shows that the Heller ruling is vulnerable.   The minority view is that the predicate clause limits the purpose of the 2A, and that the Founders did not intend the 2A to protect any "natural right" of self-defense outside the context of the states' well-regulated militias.

No I don't miss your point.  It's just that your point is wrong.  It's factually wrong...it's been demonstrated repeatedly by others here that you're point and your belief on what the 2nd Amendment means is wrong as well.

You're the one that seems to keep "missing the point".

I agree with the result of the Heller decision,  but I fear the reasoning -  that the natural right is protected by the 2A- is vulnerable to being overturned.   It is contrary to the 2A's plain language (Scalia concluded the predicate clause is merely prefatory,  a most un-conservative approach to statutory interpretation),  as well as the Founders' intent (see Prof. Epstein's article) that the 2A's purpose was to protect the States' right to maintain their militias from usurpation by the new Federal government.

Your fear is self created and unnecessary.  Again you're wanting to fix a problem that doesn't exist.

The individual RKBA is, IMO, an unenumerated natural right that is protected by the Constitution in the same way it protects the unenumerated rights of privacy and self-determination.  No, that's not what Heller says,  but Heller's reliance on the 2A is disputed and can easily be overturned.   It is that vulnerability that prompts me to advocate for codification of the right,  to provide a sounder basis for the right than a flawed Second Amendment and its inconvenient predicate clause.   

Perhaps then you need a course from Hooked on Phonics.  Or a remedial reading class.  Because the right to keep and bear arms IS an enumerated right.  In fact it's the second enumerated right of the first 10 enumerated rights in a little document called the Bill of Rights.

"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."

The right of the people...the "people" being you and me.

There is no vulnerability...there is no need for codification or clarification.  There is no more sounder basis for the citizen to be able to own and keep firearms on their person or in their house than what was written in the 2nd Amendment.


Keep talking in circles until your dizzy...it won't change the fact you're wrong...and that myself and others will continue to prove that your interpretation of the 2nd Amendment is not only in the minority...both in legal reviews...judicial rulings as well as what's in the Constitution and what the vast majority of the population of this country believe the 2nd Amendment means and stands for...but it's in the minority here as well.

[Weird Tolkienish Figure]

I don't get involved in these discussions, because frankly it doesn't matter what we think about it. Literally. What matters is the 9 members of the USSC, which is a huge reason why I voted Trump.

I know you may accuse me of wanting the USSC "Oligarchs" ruling over us, but I'm just stating the truth. Argue all day and night, even if you win, you still lose. What matters is getting good justices on the bench. That is what will affect gun rights at this point. Because you and I both know the left will not hesitate to judge their own opinions on gun regardless of the law/constitution.

[Maj. Bill Martin]

You keep missing my point.  The minority opinion is important because it shows that the Heller ruling is vulnerable.   The minority view is that the predicate clause limits the purpose of the 2A, and that the Founders did not intend the 2A to protect any "natural right" of self-defense outside the context of the states' well-regulated militias.

I agree with the result of the Heller decision,  but I fear the reasoning -  that the natural right is protected by the 2A- is vulnerable to being overturned.   It is contrary to the 2A's plain language (Scalia concluded the predicate clause is merely prefatory,  a most un-conservative approach to statutory interpretation),  as well as the Founders' intent (see Prof. Epstein's article) that the 2A's purpose was to protect the States' right to maintain their militias from usurpation by the new Federal government.

The entire Bill of Rights was supposed to limit only the federal government.  State governments were perfectly free to limit free speech, religion, firearms etc..  And they did.

But that all changed with the passage of the 14th Amendment after the Civil War, and the subsequent adoption of the incorporation doctrine by the Supreme Court.  So, while I'd agree that the Founders would have thought states could limit gun ownership any way they wanted, I think that gets tossed out the window with the 14th.  With the incorporation doctrine from the 14th Amendment, the 2nd now limits state actions as well.

The individual RKBA is, IMO, an unenumerated natural right that is protected by the Constitution in the same way it protects the unenumerated rights of privacy and self-determination.

I disagree with this as well.  The "rights" of "privacy" and "self-determination" should not be considered constitutional rights of any kind, unenumerated or otherwise.  They are judge-created rights with absolutely no textual basis or support.  I assume you disagree, so I'll frame it differently.  The Constitution places no limitations or interpretative guidance at all on either the right to "privacy" or "self-determination", nor is there any common-law basis that could possibly serve as a guideline for how courts should interpret those "rights".

What all that means is that if you consider the "right of privacy" and the "right of self-determination" to be unenumerated Constitutional rights, then you have to assume that the Founders chose to give the third most powerful branch (in their view), the unfettered right to define and enforce those completely undefined rights without any Constitutional or other guidance whatsoever, other than the personal whims of individual judges.  I think that's completely at odds with our Constitutional structure.

[Jazzhead]

I don't get involved in these discussions, because frankly it doesn't matter what we think about it. Literally. What matters is the 9 members of the USSC, which is a huge reason why I voted Trump.

I know you may accuse me of wanting the USSC "Oligarchs" ruling over us, but I'm just stating the truth. Argue all day and night, even if you win, you still lose. What matters is getting good justices on the bench. That is what will affect gun rights at this point. Because you and I both know the left will not hesitate to judge their own opinions on gun regardless of the law/constitution.

Bingo - because if the Dems can appoint their own to the SCOTUS,  they will overrule Heller.   Txradioguy says I'm wrong.   Believe me,  I wish I were.   

But is this really the way we want to proceed as a nation?   For 40 years right and left have skirmished over the Supreme Court and the right's desire (and the left's fear)  that a change in the Court will do away with the abortion right.  Do we want to continue this same polarization and politicization of the Court on the issue of the gun right? 

That is the primary reason I advocate that the Heller decision be codified by the People.   

[Maj. Bill Martin]

But is this really the way we want to proceed as a nation?   For 40 years right and left have skirmished over the Supreme Court and the right's desire (and the left's fear)  that a change in the Court will do away with the abortion right.  Do we want to continue this same polarization and politicization of the Court on the issue of the gun right? 

That is the primary reason I advocate that the Heller decision be codified by the People.   

Exactly how do you foresee the Democrats having the power to appoint and confirm anti-Second Amendment justices, but not have the power to overturn the codification you believe will protect us if that happens?

Also, I'd add this -- I think it very likely that a Court willing to overturn Heller would be willing to read any codification of Heller as a violation of the commerce clause/infringing on state prerogatives.  Essentially, they'd use the reasoning of the original Gun Free School Zones Act to say that the Feds cannot mandate that states permit people to own/carry guns.  Sure, it'd be a dishonest, sketchy argument, but I don't think that would stop them for a moment.

In other words, if they get 5 anti-Second Amendment/anti-gun justices on the Supreme Court, there's no federal legal protection that could actually protect gun owners.

[Jazzhead]

What all that means is that if you consider the "right of privacy" and the "right of self-determination" to be unenumerated Constitutional rights, then you have to assume that the Founders chose to give the third most powerful branch (in their view), the unfettered right to define and enforce those completely undefined rights without any Constitutional or other guidance whatsoever, other than the personal whims of individual judges.  I think that's completely at odds with our Constitutional structure.

The individual RKBA (outside the militia context) is also, IMO, an un-enumerated natural right.   If you subscribe to the idea that human beings have natural rights,  are you comfortable with the notion that the Constitution protects only those rights that are specifically enumerated in the Constitution?    Because if you are,  the stakes in upholding Heller have just gotten greater.   Overrule Heller, and the 2A provides for NO enumerated protection of the basic right of self-defense unconnected with the militia.    And since in your view the natural right cannot be protected,  it can be taken away,  by either the federal government or by the states. 

I therefore disagree with you, and accept the idea that the Constitution protects un-enumerated natural rights of man.  Yes,  that view leads to the protection of the abortion right, but it also permits the right to self-defense to be protected notwithstanding the 2A's limitation by the predicate clause.   It also permits that protection to be extended vis a vis the states by means of the incorporation doctrine.   If you don't take that view, then the entire right dies as soon as the Dems assemble a Court majority to overrule Heller.   Gone.  Kaput.  Bye-bye.     

[Axeslinger]

I just wish everyone would just put @Jazzhead on ignore.  (I’m only officially pinging you out of courtesy...please don’t bother to reply, you have NOTHING useful to say)

He’s the single most disruptive member on this board...deliberately obtuse, deliberately incapable of acknowledging any of the facts laid out before him.  The sooner he is fully ignored, the sooner he will leave and go troll somewhere else.

[Bigun]

Some of those posting here on this thread need to remember that there are 9 other amendments in the Bill of Rights outside the Second. This one seems appropriate to mention at the moment.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

[Maj. Bill Martin]

The individual RKBA (outside the militia context) is also, IMO, an un-enumerated natural right.   If you subscribe to the idea that human beings have natural rights,  are you comfortable with the notion that the Constitution protects only those rights that are specifically enumerated in the Constitution?

Comfortable?  No.  But whether or not I'm "comfortable" with what the Constitution said doesn't change what it actually did say.

The truth is that "notion" isn't as simple as you're portraying it.  The starting point of the analysis is that the Constitution limited only the federal government, and that the Bill of Rights only limited the actions of the federal government.  I assume we at least agree with that, right?  And that the states had the acknowledged right to pass laws regulating religions, speech, etc..  That is basic hornbook law, openly acknowledged by the Supreme Court right up through the Civil War.  Right?

It also is generally understood that the Bill of Rights was, to many, considered somewhat redundant.  The Constitution was viewed as creating a government of limited, enumerated powers only, and therefore the federal government didn't have the right to do the things listed in the Bill of Rights anyway.  But some delegates wanted it to be even more explicitly limited, so they added the Bill of Rights.  The point of the Ninth and Tenth was to ensure that the Bill of Rights wasn't used as a wedge to essentially argue backwards that it gave the Federal Government more power.  In other words, "natural rights" were protected not by the Bill of Rights, but by the foundational limitations of a government that was limited only to strictly enumerated powers.

So the point is this -- from very beginning of this country, states were permitted, and did, take actions that violated even Constitutionally-enumerated rights.  Therefore, the idea that there were some "hidden", unenumerated rights in the Constitution is preposterous.  The Framers openly didn't protect any such rights, right from the start of the country.  Those rights simply did not exist in the Constitution. There is no rational argument that they did given that states were freely permitted to "violate" them.

Because if you are,  the stakes in upholding Heller have just gotten greater.   Overrule Heller, and the 2A provides for NO enumerated protection of the basic right of self-defense unconnected with the militia.    And since in your view the natural right cannot be protected,  it can be taken away,  by either the federal government or by the states.

The natural right isn't extinguished, though the legal right may be.  That is simply the reality of our Constitutional/legal structure, not a moral judgment about what is preferable to me personally.

I disagree with you, and accept the idea that the Constitution protects un-enumerated natural rights of man.  Yes,  that view leads to the protection of the abortion right, but it also permits the right to self-defense to be protected notwithstanding the 2A's limitation by the predicate clause.   It also permits that protection to be extended vis a vis the states by means of the incorporation doctrine.   If you don't take that view, then the entire right dies as soon as the Dems assemble a Court majority to overrule Heller.   

You didn't address the incongruity of the Founders believing in giving the Courts zero guidance, boundaries, or standards, to enforce upon the states their vision of what other "rights" should be protected.

[Maj. Bill Martin]

Some of those posting here on this thread need to remember that there are 9 other amendments in the Bill of Rights outside the Second. This one seems appropriate to mention at the moment.

That is not an affirmative protection of unenumerated rights.  It is a recognition that the Federal Government had strictly limited powers, beyond which it was not permitted to go.  States were free to "violate" any rights they wanted, even after the Constitution was ratified.

I don't know if people forget that, or just never knew it.

[txradioguy]

Some of those posting here on this thread need to remember that there are 9 other amendments in the Bill of Rights outside the Second. This one seems appropriate to mention at the moment.

But without the Second...there is no protection real or otherwise for the other 9.

[Cyber Liberty]

But without the Second...there is no protection real or otherwise for the other 9.

Sure there is.  I saw it posted on this thread impartial Judges will protect us from the predations of the government. Relax.

[Maj. Bill Martin]

The argument for the Second Amendment should be pretty simple.  If you take the Second Amendment to mean what the "militia" people say it means, then the Federal Government should have had the right to ban individual ownership of arms, but permitted states to maintain their own armories.  Nobody in their right mind thought the Feds could do that.  So, at least from the Federal perspective, Congress didn't have the power to regulate individual ownership of guns either.  Also, as Scalia pointed out in Heller, the use of the words "the People" rather than "the States" also is proof that it was an individual right being protected from federal regulation. The states could (and did) limit guns, though.

When the 14th Amendment was passed, part of it read "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States".  When this was passed, the above-described prohibition against the federal government regulating individual gun ownership -- along with the federal prohibitions against speech laws, laws restricting religion, etc. -- became binding on state governments as well.  That's why the Second Amendment should now apply to states governments as well, and so protect the rights of individuals completely.

[Jazzhead]

I just wish everyone would just put @Jazzhead on ignore.  (I’m only officially pinging you out of courtesy...please don’t bother to reply, you have NOTHING useful to say)

He’s the single most disruptive member on this board...deliberately obtuse, deliberately incapable of acknowledging any of the facts laid out before him.  The sooner he is fully ignored, the sooner he will leave and go troll somewhere else.

 

[INVAR]

Argue all day and night, even if you win, you still lose. What matters is getting good justices on the bench.

Sad travesty that so many have accepted an absolute aberration of governance as legitimate.   That anyone would accept the lie that our inalienable rights hang by the decision of one justice on a court, speaks to the reality that this Republic is already dead in the minds and hearts of a huge swath of the population.

[Jazzhead]

The argument for the Second Amendment should be pretty simple.  If you take the Second Amendment to mean what the "militia" people say it means, then the Federal Government should have had the right to ban individual ownership of arms, but permitted states to maintain their own armories.  Nobody in their right mind thought the Feds could do that.  So, at least from the Federal perspective, Congress didn't have the power to regulate individual ownership of guns either.  Also, as Scalia pointed out in Heller, the use of the words "the People" rather than "the States" also is proof that it was an individual right being protected from federal regulation. The states could (and did) limit guns, though.

When the 14th Amendment was passed, part of it read "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States".  When this was passed, the above-described prohibition against the federal government regulating individual gun ownership -- along with the federal prohibitions against speech laws, laws restricting religion, etc. -- became binding on state governments as well.  That's why the Second Amendment should now apply to states governments as well, and so protect the rights of individuals completely.

I agree that the 14th amendment changed the game - prior thereto, the sovereign states were constrained only by their own constitutions with respect to acknowledging and protecting individual "rights".   With the 14th,  rights protected by the Federal constitution became binding on state governments as well.   

So the broader issue is whether the Federal Constitution protects un-enumerated as well as enumerated individual rights.  Whether you agree or not,  the SCOTUS has expanded the Constitution's reach to protect natural rights not enumerated therein.   To me that's a good thing - why should the state forbid a couple from practicing contraception?   And, likewise, why should the state make it impossible for a citizen to have the means to protect his home from intruders?    To me,  the "living Constitution" has expanded the protection of human liberty from encroachment by the state.   

The narrow issue here is whether the individual RKBA is an enumerated or un-enumerated right.   Heller says the former,  and I believe that ruling stands on very fragile ground, and will likely be overruled in future years.   But the right can still be protected as an un-enumerated right.   Will a liberal SCOTUS agree?   That's the risk - and the reason I favor taking measures now to codify the right by statute or Constitutional amendment.

Can a future Congress override such a statutory codification?  Sure - which is why I'd prefer a Constitutional amendment.   But the process of revoking a statute is very different than overturning a court decision.  The former requires the action of the peoples' elected representatives, who must ultimately account to the voters for their decision.   The overturning of a court decision is made solely by unelected judges.   And while the codification remains on the books,  it represents a practical check to the behavior of a court,  since most judges recognize their job is to interpret and apply the law, not second-guess political decisions.     

[thackney]

I hope you don't go away.  I've learned a lot debating with you.  I don't think you've changed my mind on any position. 

However, without a doubt I've become more informed on issues that are important to me.  You have caused me to research more and I have learned quite a bit in the process.

I'm not looking for a forum that is only an echo chamber of "Yah! Me too!"

[Axeslinger]

I hope you don't go away.  I've learned a lot debating with you.  I don't think you've changed my mind on any position. 

However, without a doubt I've become more informed on issues that are important to me.  You have caused me to research more and I have learned quite a bit in the process.

I'm not looking for a forum that is only an echo chamber of "Yah! Me too!"

NOr am I.   However I have zero use for fools who repeat the same nonsensical crap over and over ad nauseum refusing to acknowledge ANY other facts that are shown over and over and over...as if the mere repetition of their nonsense will be enough to sway others to their proven faulty position.  People like that are merely useful idiots and in this case threats to our liberty...no matter how eloquently they try to spout their nonsense.

[Jazzhead]

NOr am I.   However I have zero use for fools who repeat the same nonsensical crap over and over ad nauseum refusing to acknowledge ANY other facts that are shown over and over and over...as if the mere repetition of their nonsense will be enough to sway others to their proven faulty position.  People like that are merely useful idiots and in this case threats to our liberty...no matter how eloquently they try to spout their nonsense.

What "facts" (as opposed to mere opinions) have I "refused to acknowledge over and over again." 

Thackney says I've never persuaded him to change his opinion.   That's fine - for most of us, we tend to stand firm in our opinions.  I'm sure I've changed a few of my opinions over the years based on discussion and information posted on this board.  And I continue to have an open mind.   Indeed, my view of the 2A's historical purpose was recently changed and clarified by Prof. Epstein's article linked to on this thread.  However, that article reinforced by view that Heller is hanging by a thread and needs to be codified because the 2A's plain language, read in the context of the rest of the Constitution's pronouncements regarding the militia as explained by Prof. Epstein,  simply does not support protection of the individual RKBA.   

[Axeslinger]

Go reread your own friggin comments over the last 631 comments on this damn thread and, hell, EVERY 2A thread on this forum

You’ll find the same gag inducing catch phrases repeated ad nauseum.   We ain’t buying your bullshit Jazz...feel free to stay, but you might win a few more friends and influence a few more people if you start trying to sell your bullshit elsewhere.  We are all tired of reading your fact challenged bullshit.

[Right_in_Virginia]

I just wish everyone would just put @Jazzhead on ignore.  (I’m only officially pinging you out of courtesy...please don’t bother to reply, you have NOTHING useful to say)

He’s the single most disruptive member on this board...deliberately obtuse, deliberately incapable of acknowledging any of the facts laid out before him.  The sooner he is fully ignored, the sooner he will leave and go troll somewhere else. 

Quick translation of @Axeslinger 's post:  Dear Briefers ~ Please put @Jazzhead on ignore so he finally leaves the forum.   I'm damn tired of losing *every* debate point to him.  XOXO from your Axe

[Jazzhead]

Go reread your own friggin comments over the last 631 comments on this damn thread and, hell, EVERY 2A thread on this forum

You’ll find the same gag inducing catch phrases repeated ad nauseum.   We ain’t buying your bullshit Jazz...feel free to stay, but you might win a few more friends and influence a few more people if you start trying to sell your bullshit elsewhere.  We are all tired of reading your fact challenged bullshit.

What "facts" are you referring to?   Your profanity-laced posts constitute opinions, not facts. 

And why don't you take your own advice and put me on ignore?   Stop responding to my posts - you'll feel much better for it.    

[INVAR]

Quick translation of @Axeslinger 's post:  Dear Briefers ~ Please put @Jazzhead on ignore so he finally leaves the forum.   I'm damn tired of losing *every* debate point to him.  XOXO from your Axe

That's a fun revelation that illustrates your agreement with the anti-gun tyranny-advocating arguments our resident Commie-Lib-Statist has been suggesting.

More proof that the people IN the Republican party are as indistinguishable from Democrats as their leadership is.