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“In modern times, we are quick to "throw the rascals out," but it never occurs to us that rascality is imbedded in the office or that the power invested in it might make a rascal of an honest man.” Frank Chodorov, What Samuel Said about Solomon

June 26, 2008

A Human Right, A Civil Right: Fundamental, Pre-existing, Strictly Scrutinized, Universal, and Incorporated

by Chris

This morning, I’m noting a lot of ill informed …or perhaps just informed by misunderstanding of the text… opinions and statements regarding the historic Heller ruling on the scope and applicability of the 2nd amendment.

This of course is unsurprising when many people of varying levels of knowledge about law, history, and firearms have just a short time to digest a 90 page majority opinion and another 70 pages of dissents and cites.

In the table below, I’ve selected out the critical passages, and highlighted some of those I consider most instructive or important (bold for important, red for critical).

Briefly, I need to specifically address some points:

1. Incorporation: Scalia makes it clear in his majority opinion that the second amendment is a fundamental right, that must be treated the same as other fundamental rights such as the first amendment. He specifically notes it in respect to the 14th amendment NUMEROUS times. This decision will be applied universally within the domain of the court, and should be considered controlling upon the states (this is clarified in the later references by the way).

2. Universality: This decision applies to all within the jurisdiction of the court. Excepting prohibited persons (and there is a clear definition under federal law of who those persons are by the way), all individuals under the jurisdiction of U.S. law, have the right to keep and bear arms.

3. Scrutiny: Again, this issue is clear. Though in the opinion itself Scalia does not explicitly state that second amendment issues should be reviewed with strict scrutiny, this is made clear in the text by equating the 2nd amendment with the first, 4th, 14th etc… Further, Scalia explicitly dismisses Stevens call for a “balance of interests” standard of medium scrutiny. This is in effect strict scrutiny, with certain well defined exceptions (such as for felons, the insane, and weapons of mass destruction).

4. Class III (machine guns and other): This one is mixed. Although the majority expresses that some restrictions are permissible, it also explicitly denies outright bans. It is clear that weapons that are in the common usage and available to citizens, are protected. That includes machine guns (machine guns are not illegal for the general public to own, they are just very expensive and tightly restricted). Although Scalia points out that Miller said it was OK to ban short barreled shotguns, he also noted that the decision is flawed, because it only took judicial notice of what was presented to the court, and the original apellant (Miller, though technically he was the respondent for the appeal to the supremes) never presented a case (he died before the date set for arguments, and his attorney didn’t bother to show up).

Based on my reading, I would say that the current law prohibiting the new manufacture of machine guns for civilian sale after May of 1986 (actually that’s not what it says, but that is how the ATF chose to interpret it) is out; after some long and difficult litigation. However, the door is open for other laws restricting such weapons, fi properly written to pass constitutional scrutiny.

This of course applies to other weapon types specifically targeted for bans; for example the requirement that all weapons imported into the United States have a “sporting purpose”, and that certain shotguns are considered “destructive devices” simply by arbitrary features; are also disallowed (again with the caveat that new laws could be written to pass a constitutional standard).

5. Scope: I think it is clear, though it will require significant litigation to hash out details; that no outright ban on any type of weapon (including machine guns as currently construed), excepting weapons of mass destruction, can stand muster. This means that all state “Assault weapons bans” will be struck down… eventually; along with magazine capacity bans, hollowpoint bullet bans etc… (though likely the ban on “armor piercing” handgun ammunition will continue).

I also think it is clear that there is significant room for licensing programs, and standards (including standards for weapons features and functionality)to be set, so long as the requirements for licensing are not discriminatory, arbitrary, capricious, or onerous. Of course, again, that is going to require years of litigation to define better.

I do think that clearly this means the end of Chicago gun laws, and most likely the radical reformation of laws in Massachusetts, New York, California, Hawaii, and New Jersey.

I should note that this does not mean universal “shall issue” concealed carry, but it almost certainly DOES mean that all states which allow concealed carry must allow it on a “shall issue” basis; using those standards as a guideline. Unless someone is a prohibited person, as spelled out under law since 1968, you MUST license them (presuming licensing exists).

Additionally, I believe this actually DOES set a requirement for lawful OPEN carry throughout the country; in that self defense is a recognized lawful, and traditional purpose of the bearing of arms.

And of course, this ruling does specifically allow for the restriction of carry of firearms in some ways, and some locations. As Scalia repeatedly says, no constitutionally protected rights are absolute (under the law).

Finally, any legislation that does not EXPLICITLY violate the above prohibitions, but would have the effect of doing so, is certainly disallowed. This means that standards for licensing, firearms design, dealer sale regulations etc… cannot be set so as to constitute an effective ban, or an onerous burden.

Now we just need to spend the next 15 years suing to define what constitutes an onerous burden.

Summary of Impact: So you can’t ban guns, or any particular types of guns; you can’t keep anyone not a prohibited person from buying, owning, keeping, bearing, and using guns for all lawful purposes (including self defense); you can license and set standards for guns to be sold, and for persons to purchase, own, keep, and bear them; but those standards cannot be discriminatory, arbitrary, capricious, or onerous.

Oh and of course, that doesn’t get into the halo effect this has on other cases dealing with fundamental rights issues (remember how many times they state that this is simply protecting a pre-existing right).

Excerpts from the text of the majority decision:

Held:

1. The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home…

… 2. Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, concealed
weapons prohibitions have been upheld under the Amendment
or state analogues.

The Court’s opinion should not 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.

Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.
Pp. 54–56.

3. The handgun ban and the trigger-lock requirement (as applied to
self-defense) violate the Second Amendment.

The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense.

Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster.

Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and
is hence unconstitutional.

Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement.

Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.

Affirmed..

* * *
We turn first to the meaning of the Second Amendment.

The Second Amendment provides: 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.”

In interpreting this text, we are guided by the
principle that “The 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.”

Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the
founding generation.

* * *

“Right of the People.” The first salient feature of
the operative clause is that it codifies a “right of the people.”

The unamended Constitution and the Bill of Rights
use the phrase “right of the people” two other times, in the
First Amendment’s Assembly-and-Petition Clause and in
the Fourth Amendment’s Search-and-Seizure Clause. The
Ninth Amendment uses very similar terminology (“The
enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by
the people”). All three of these instances unambiguously
refer to individual rights, not “collective” rights, or rights
that may be exercised only through participation in some
corporate body…

…This contrasts markedly with the phrase “the militia” in
the prefatory clause. As we will describe below, the “militia”
in colonial America consisted of a subset of “the people”—
those who were male, able bodied, and within a
certain age range.

Reading the Second Amendment as
protecting only the right to “keep and bear Arms” in an
organized militia therefore fits poorly with the operative
clause’s description of the holder of that right as “the
people.”

We start therefore with a strong presumption that the
Second Amendment right is exercised individually and
belongs to all Americans.

* * *

… in the course of analyzing the meaning of
“carries a firearm” in a federal criminal statute, JUSTICE
GINSBURG wrote that “[s]urely a most familiar meaning is,
as the Constitution’s Second Amendment . . . indicate[s]:
‘wear, bear, or carry . . . upon the person or in the clothing
or in a pocket, for the purpose . . . of being armed and
ready for offensive or defensive action in a case of conflict
with another person.’ ”

We think that JUSTICE GINSBURG accurately captured the
natural meaning of “bear arms.” Although the phrase
implies that the carrying of the weapon is for the purpose
of “offensive or defensive action,” it in no way connotes
participation in a structured military organization.

* * *

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), “This 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”

* * *

There seems to us no doubt, on the basis of both text
and history, that the Second Amendment conferred an
individual right to keep and bear arms. Of course the
right was not unlimited, just as the First Amendment’s
right of free speech was not, see, e.g., United States v.
Williams, 553 U. S. ___ (2008). Thus, we do not read the
Second Amendment to protect the right of citizens to carry
arms for any sort of confrontation, just as we do not read
the First Amendment to protect the right of citizens to
speak for any purpose.

* * *

We reach the question, then: Does the preface fit with
an operative clause that creates an individual right to
keep and bear arms? It fits perfectly, once one knows the
history that the founding generation knew and that we
have described above.

That history showed that the way
tyrants had eliminated a militia consisting of all the ablebodied
men was not by banning the militia but simply by
taking away the people’s arms, enabling a select militia or
standing army to suppress political opponents. This is
what had occurred in England that prompted codification
of the right to have arms in the English Bill of Rights.

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.

* * *

We may as well consider at this point (for we will have
to consider eventually) what types of weapons Miller
permits.

Read in isolation, Miller’s phrase “part of ordinary
military equipment” could mean that only those
weapons useful in warfare are protected. That would be a
startling reading of the opinion, since it would mean that
the National Firearms Act’s restrictions on machineguns
(not challenged in Miller) might be unconstitutional,
machineguns being useful in warfare in 1939.

We think that Miller’s “ordinary military equipment” language must
be read in tandem with what comes after: “[O]rdinarily
when called for [militia] service [able-bodied] men were
expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.” 307 U. S., at
179. The traditional militia was formed from a pool of
men bringing arms “in common use at the time” for lawful
purposes like self-defense. “In the colonial and revolutionary
war era, [small-arms] weapons used by militiamen
and weapons used in defense of person and home were one
and the same.”

As for the “hundreds of judges,” who have relied on the
view of the Second Amendment JUSTICE STEVENS claims we endorsed in
Miller: If so, they overread Miller. And their erroneous reliance upon
an uncontested and virtually unreasoned case cannot nullify the
reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms.

In any event, it should not be thought that the cases decided by these judges
would necessarily have come out differently under a proper interpretation
of the right.

The amendment’s operative clause furthers the purpose announced
in its preface. We therefore read Miller to say
only that the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens
for lawful purposes, such as short-barreled shotguns.

* * *

It should be unsurprising that such a significant
matter has been for so long judicially unresolved.
For most of our history, the Bill of Rights was not thought
applicable to the States, and the Federal Government did
not significantly regulate the possession of firearms by
law-abiding citizens.

Other provisions of the Bill of Rights
have similarly remained unilluminated for lengthy periods.
This Court first held a law to violate the First
Amendment’s guarantee of freedom of speech in 1931,
almost 150 years after the Amendment was ratified, see
Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and
it was not until after World War II that we held a law

invalid under the Establishment Clause, see Illinois ex rel.
McCollum v. Board of Ed. of School Dist. No. 71, Champaign
Cty., 333 U. S. 203 (1948).

Even a question as basic
as the scope of proscribable libel was not addressed by this
Court until 1964, nearly two centuries after the founding.
See New York Times Co. v. Sullivan, 376 U. S. 254 (1964).

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.

* * *

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…

…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 ofarms.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.”

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 amendment

* * *

We turn finally to the law at issue here.

As we have
said, the law totally bans handgun possession in the home.
It also requires that any lawful firearm in the home be
disassembled or bound by a trigger lock at all times, rendering
it inoperable. As the quotations earlier in this opinion demonstrate,
the inherent right of self-defense has been central to the
Second Amendment right. The handgun ban amounts to a
prohibition of an entire class of “arms” that is overwhelmingly
chosen by American society for that lawful purpose.

The prohibition extends, moreover, to the home, where the
need for defense of self, family, and property is most acute.

Under any of the standards of scrutiny that we have applied
to enumerated constitutional rights,27 banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster….

… See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A
statute which, under the pretence of regulating, amounts
to a destruction of the right, or which requires arms to be
so borne as to render them wholly useless for the purpose
of defence, would be clearly unconstitutional”).

It is no answer to say, as petitioners do, that it is permissible
to ban the possession of handguns so long as the
possession of other firearms (i.e., long guns) is allowed. It
is enough to note, as we have observed, that the American
people have considered the handgun to be the quintessential
self-defense weapon.

There are many reasons that a
citizen may prefer a handgun for home defense: It is easier
to store in a location that is readily accessible in an emergency;
it cannot easily be redirected or wrestled away by
an attacker; it is easier to use for those without the upperbody
strength to lift and aim a long gun; it can be pointed
at a burglar with one hand while the other hand dials the
police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

* * *

After an exhaustive discussion of the arguments for and against
gun control, JUSTICE BREYER arrives at his interest balanced
answer: because handgun violence is a problem,
because the law is limited to an urban area, and because
there were somewhat similar restrictions in the founding
period (a false proposition that we have already discussed),
the interest-balancing inquiry results in the
constitutionality of the handgun ban. QED

We know of no other enumerated constitutional right
whose core protection has been subjected to a freestanding
“interest-balancing” approach. The very enumeration of
the right takes out of the hands of government—even the
Third Branch of Government—the power to decide on a
case-by-case basis whether the right is really worth insisting
upon.

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.

We would not apply an “interest-balancing” approach to the prohibition
of a peaceful neo-Nazi march through Skokie. See
National Socialist Party of America v. Skokie, 432 U. S. 43
(1977) (per curiam).

The First Amendment contains the freedom-of-speech guarantee
that the people ratified,which included exceptions for
obscenity, libel, and disclosure of state secrets,
but not for the expression of extremely unpopular and wrong-headed views.

The Second Amendment is no different.

Like the First, it is the very product of an interest-balancing
by the people—which JUSTICE BREYER would now conduct for them anew.
And whatever else it leaves to future evaluation, it surely
elevates above all other interests the right of law-abiding,
responsible citizens to use arms in defense of hearth and
home.

* * *

In sum, we hold that the District’s ban on handgun
possession in the home violates the Second Amendment,
as does its prohibition against rendering any lawful firearm
in the home operable for the purpose of immediate
self-defense. Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the District
must permit him to register his handgun and must
issue him a license to carry it in the home.

* * *

We are aware of the problem of handgun violence in this
country, and we take seriously the concerns raised by the
many amici who believe that prohibition of handgun
ownership is a solution.

The Constitution leaves the District of Columbia a variety
of tools for combating that problem, including some measures
regulating handguns,see supra, at 54–55, and n. 26.
But the enshrinement of constitutional rights necessarily
takes certain policy choices off the table.
These include the absolute prohibition of handguns held
and used for self-defense in the home.

Undoubtedly some think that the Second Amendment
is outmoded in a society where our standing army is
the pride of our Nation, where well-trained police forces
provide personal security, and where gun violence is a
serious problem. That is perhaps debatable, but what is
not debatable is that it is not the role of this Court to
pronounce the Second Amendment extinct.

We affirm the judgment of the Court of Appeals.

–It is so ordered.

Permalink || Comments (26) || Categories: Constitution,Crime and Punishment,District of Columbia v. Heller,Equal Protection,Founding Fathers,Government Regulation,History,Human Rights,Individual Rights,Keep and Bear Arms,Legal,Politics,The Bill Of Rights,The Nanny State,Theory and Ideas

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26 Comments

wow, great summary. Thanks!
Comment by Chris Brewer — June 26, 2008 @ 3:48 pm
It is not a case of misunderstanding the 2nd amendment that brought this case. If as much effort was used to keep illegal guns from being so prevalent as to making your arguments and lobbying against common sense, there would probably be less fatalities. In cities and neighborhoods that have to deal with this, all of that philosophizing hardly assuages the grief. A gun is an object, it has no power to confer any right. Libertarians have spent generations honing your arguments and I see little of what you ever do to extend yourself in society. It is alway IF, THEN and the constitution. The constitution is not a religious document.
Comment by VRB — June 26, 2008 @ 5:11 pm
VRB,

It’s a matter of realism. As libertarians, we know that we have NO CHANCE at “keep[ing] illegal guns from being so prevalent”.

We can’t keep drugs out of PRISONS. The Brits have a handgun ban, and they can’t keep guns off their streets.

When people want something bad enough, they will obtain it. That’s simple truth. Even if you shut down every gun factory in the world, you’ll still have guns. After all, in prisons you’ve got people fermenting orange juice to get f’ed up when they can’t get easy drugs. A modern gun may be difficult to produce, but the world has had guns for hundreds of years, and if there’s a market, a machinist will work to provide them.

So the question becomes, how do we defend ourselves from those people who will get guns at any cost? The only way to do that is to equalize the playing field. A criminal is a lot less ready to break into your house if he thinks you’ve got a fully loaded Glock in your bedside drawer.
Comment by Brad Warbiany — June 26, 2008 @ 6:18 pm
VRB:

The constitution is not a religious document.

No, and therefore I give it far more respect than I give to the christian bible. The Constitution is a document written by real, living, breathing men with purposes that they explained to us. We know exactly why they wrote it and what the meanings of the words are because they told us in a written, historical record.

The christian bible (and all other religious writings I have seen) requires us to guess, to have faith or to blindly follow what someone else says. The Constitution is written in plain english and then explained in more plain english. I can form my own opinions about what it says. Which of those documents should I place more trust in?

Aside from that, the Constitution is a contract that grants explicit powers to the government and provides explicit, enumerated restrictions on the government. Nothing more and nothing less. If you and I have a contract between us, should I be able to change my obligations just because I want to, and it makes sense to me? Or should you be involved in that decision to?

If we need to change the plain words of the Constitution that prevent the government from restricting our right to keep and bear arms, then we can do so. The Constitution provides a means to change the contract. It also provides checks and balances to prevent various branches of the government from changing the contract without following the process.

You would scream bloody murder if I tried to take away some right that the Constitution doesn’t talk about, but refuse to use the formal process to change the law that the Constitution provides when it is a right you don’t like?

The whole point is to protect me from people like you, at the end of the day.
Comment by Eric — June 27, 2008 @ 8:37 am
Just to chime in, I would ask you a question VRB. And it is one that seems to me to go to the heart and soul of the question you pose. Indeed, your comment begs the question.

Do you believe in the Rule of Law or the Rule of Man?

You see, if you believe in the Rule of Law, then you would get the point that Eric makes above and you wouldn’t say things like “The constitution is not a religious document”.

My suspicion, though, is that you really believe in the Rule of Man.
Comment by Adam Selene — June 27, 2008 @ 8:55 am
To join in the pile-on,

In the 1840′s slavery was a hotly being debated. Many people held the “moderate” position that while slavery was a theoretical violation of the slaves’ rights, that in “the real world”, blacks could not function as free men and that they were better off as slaves – moreover that it was impossible for different races to live alongside each other and that if they were granted equal rights with whites that inevitably be a race war between whites and blacks. These guys made the same argument that while the theory of equal rights was pretty in theory in reality it was unworkeable.

That argument also popped up in the Jim Crow south, most notably in the trials of the Scottsboro boys when people would concede that the accused were being railroaded and deprived of their right to due process, but that if a black man was seen as getting away with raping a white woman that the blacks would declare open season on whites etc.

My response to your argument is the same argument that the judge who threw out the charges against the Scottsboro boys said:

“Let justice be done even though the heavens should fall.”

And I can’t help to notice that the rivers of blood that the proponents of human rights violations predict whenever the government loosens its shackles on some group of people never seem to show up.

It’s odd that – it’s almost as if the vast majority of black people are decent human beings.
Comment by tarran — June 27, 2008 @ 10:49 am
What you all missed is that you are not doing anything to change society but put hot air in the atmosphere. You seem to think that the constitution is not in place to put the rule of law; but an infallible document. The constitution does not grant natural rights, it only states the rights which are allowed under it. You automatically assume that I read the 2nd amendment as you do and I am consequently dangerous. You see I see nothing about self defense.

I would not object so much to your comments, if you had read anything I had said on my blog about it. What I object to is that you are so willing to have all those dead bodies pile up on your ideology. Most people that live in these situations know that your scenarios are mostly BS. It is not like “A History of Violence”, but will become more like “Little Murders.”

You see you would abolish that law without enforcing or creating other other laws that would help those communities. You see that law was a restriction on the type of weapon, not the ability of the citizen to own one at all. Historically I don’t think a handgun was considered an arm in the 18th century. The problem I have is that most of you don’t want restrictions. Even this ruling didn’t allow for any safety devices.

I was once here said to have called you cowards, well let it be sure that is what I am calling you now as a group. Society will never change until people’s feet hit the ground. REREAD my earlier comment.

Tarran,
You are totally out of line. Not only are you a coward you are a damn sensetive one at that.
Comment by VRB — June 29, 2008 @ 6:31 am
VRB, maybe you should stop and think about which should take precedence, law or the constitution. Or your own desires for how things should operate. It is clear that you prefer the latter. That makes a believer in the rule of man, and consequently a danger to my liberty. The point of the Constitution is to substitute law for a king. You want to substitute a king for the law. Of course, you would call him or her something else, president, mayor, whatever. But that, ultimately is what you want.
Comment by Eric — June 29, 2008 @ 8:00 am
VRB,

If you look at the leading causes of death, firearms are way down the list. According to the CDC, in 2005 (the most recent data) the total death rate for all firearm injuries (including homicide, suicide, and accidents) was 10.2 of every 100,000 people in the U.S. .

The MSM likes to focus on murders (you know “if it bleeds it leads” and would give us the impression that we are as likely to be murdered as die in a car accident. This simply is not true.

What the MSM does not like to report is the number of lives SAVED by the lawful use of firearms (and I assure you, that number is much higer than the number of innocent victims killed by firearms).
Comment by Stephen Littau — June 29, 2008 @ 9:50 am
Let the fisking begin:

What you all missed is that you are not doing anything to change society but put hot air in the atmosphere.

What we are trying to do is persuade our neighbors to change their ways. True, it’s not as exciting as getting a law passed and having the police beat the crap out of those we don’t approve of – but there you are.

What I object to is that you are so willing to have all those dead bodies pile up on your ideology.

Yes, like the abolitionists of the 19th century, we call for an immediate end to laws that violate what we see as human rights regardless of the consequences. The fact that our opponents consistently predict bloodbaths – ones that never come – should our ideas be put in practice makes me very impatient with this accusation. I am confident that your neighbors are not murderous barbarians who would kill you the moment they had the means.

Most people that live in these situations know that your scenarios are mostly BS.

OK – what we are opposed to is the forcible disarmament of people who wish to defend themselves. We argue that criminals who wish to loot, pillage, rape and murder have ready access to guns and will have access to weapons no matter how restrictive the law is – citing the massive numbers of weapons confiscated from prisoners in high security prisons as evidence of this fact. So, VRB, where are we wrong?

Are law abiding citizens in the inner city armed to the teeth already? Or are criminals and gang-bangers lightly armed? Or are private citizens – armed only with mace and a phone with 911 on the speed dial – able to succesfully defend themselves against predators who would harm them ?

What fact or facts are you specifically alleging that differ from our narrative?

You see you would abolish that law without enforcing or creating other other laws that would help those communities.

Actually, I have addressed this very subject here.

The short answer is that by writing and enforcing draconian economic and moral laws such as onerous labor laws, blue laws and drug laws, the politicians of Massachusetts are making it difficult for people to live their lives legally. The police are not seen as benefactors but as yet another street gang preying on the weak. The lack of legal business opportunities drive people to seek illegal occupations. While some of these illegal occupations are honorable (drug dealing, prostitution), many are dishonorable (burglary, mugging).

When people view the police as an enemy, and the courts as a predatory system, they naturally ignore them for resolving disputes. When business ventures are illegal, the participants are much more likely to settle disputes violently than via a system of arbitration.

What Mayor Menino seeks to do is to isolate the people of Boston from alternatives to dealing with the police. …

Until he recognizes that the political policies he and his circle support which are the root cause of the violence directed by the people subject to his rule towards each other and towards the police, nothing good will come of his advocacy and his actions.

It is time for the political classes of Massachusetts to stop treating the citizenry as children at best and as beasts to be exploited at worst. If they were serious about reducing the level of violence and the misery in Boston they would stop wasting time on trying to shore up a monopoly on defensive services on behalf of the police, give up their expensive hoplohobia-mongering propaganda campaigns, and would instead focus their attention to eliminating the laws purposed for economic and social engineering.

The inner cities are depressed because of the web laws that tangle the people living there and deprive them of opportunities needed to live their lives. We call for a repeal of the laws that prevent th people living there from being allowed to live their lives.

You see that law was a restriction on the type of weapon, not the ability of the citizen to own one at all.

If that statement is true, then the apologists for the voter registration laws in the Jim Crow south were right when they claimed that the laws didn’t ban blacks from voting. They merely imposed some registration requirements that few blacks could meet.

Historically I don’t think a handgun was considered an arm in the 18th century.

That is not correct – they were used as military sidearms from the moment they were invented. Even if it were correct, though, it would be irrelevant.

The problem I have is that most of you don’t want restrictions. Even this ruling didn’t allow for any safety devices.

What? where did Scalia say that safety devices should be outlawed? Oh wait, he didn’t. If you want to put a trigger lock on a gun, you are still free to do so. If he had made such an idiotic pronouncement as banning trigger locks, we would have condemned him for it.

Oh wait, I get it! You’re outraged that Scalia didn’t demand that people be forced to put trigger locks on their guns. Do you reall want Scalia to get into the habit of promulgating laws that aren’t subject to repeal? Do you really want Scalia telling you how many people can live in your home? Do you really want him to decide questions like under what conditions your children should be seized and forced into foster care?

I was once here said to have called you cowards, well let it be sure that is what I am calling you now as a group. Society will never change until people’s feet hit the ground. REREAD my earlier comment.

Cowards?!? Cowards?!? We’re not the ones who are so scared of our neighbors that we demand that they be forcibly disarmed!

Honey, you want to see a coward, look at the fucking mirror.

Tarran,
You are totally out of line. Not only are you a coward you are a damn sensetive one at that.

You’re partially right: I am a bit sensitive; when people make the arguments used to justify slavery, it pisses me off.

You are a human being. Of course, you are free to hold views that I find despicable. However, when you make a despicable argument to the effect that your neighbors should cannot be trusted with freedom and should be treated like children by society I am going to slam you for it. If you don’t want your feelings hurt, I strongly recommend that you hold off making arguments that are founded on incredibly racist assumptions.
Comment by tarran — June 29, 2008 @ 10:20 am
Tarran:

“I strongly recommend that you hold off making arguments that are founded on incredibly racist assumptions.”

Good point. The very first gun control measures were put in place to keep freed blacks from possesing them.
Comment by Stephen Littau — June 29, 2008 @ 10:29 am
off-topic: tarran, in light of your energy independence post a little while back, I thought you might find this interesting: http://www.theregister.co.uk/2008/06/20/mackay_on_carbon_free_uk/print.html
Comment by Jeff Molby — June 29, 2008 @ 10:36 am
Wow!

When I have a chance, I will take a look at the paper.

Of course, he’s probably wrong; it’s almost impossible to accurately predict energy consumption needs. But it’s anice change to the wild optimism of most central planners.
Comment by tarran — June 29, 2008 @ 12:08 pm
VRB –

When I go running to Big Brother to restrict things I don’t like instead of addressing the issue myself, you will be absolutely accurate in calling me a coward. Same goes for every other contributor here.

Until that day, you’re talking out of your ***.
Comment by Quincy — June 29, 2008 @ 1:26 pm
[...] has been a lot of good commentary on the Supreme Court’s recent ruling in Heller. I have to admit that I was [...]
Pingback by …no third solution » Blog Archive » Thoughts on Heller, Collective Rights — June 30, 2008 @ 8:49 am
You all have put a lot of words in my mouth, because that is the only way you can argue against what I said.

I have lived in some bad neighborhoods but have not lived in fear. That is your assumption. It is also your assumption that I would want to disarm every one. But I stand on what I said.

I actually don’t see the 2nd amendment as guaranteeing the right of an individual to own a hand gun; but I didn’t call you all idiots for not comprehending the language as I. The more I see of your response toward me; I will say, idiots!

You all won, celebrate! You have empathy for no one. If I were a coward, I would confine my thoughts to my own blog.
Comment by VRB — July 3, 2008 @ 3:35 pm
You see Quincy, I see it as y’alls problem too. Why is it some one else rather than yours? People that might have solutions, always seem to be somewhere else. With all this mind power here and at the think tanks, too.

I also feel that government should do something for its citizens. It greatly bothers me that people are more concerned that 10 year old can buy a pack of cigarettes, than can buy a gun. I as one citizen can’t approach that person whose selling them, find their source, arrest; then prosecute. I am usually not a conspiracist but I think the NRA is like a bootlegger it lobbies to protects it franchise of illegal guns. Those young people don’t have the resources to get all those guns, the lowly drug dealers don’t either. Where I live the most active gang isn’t in the city, it is a motorcycle gang. So the source of some of the stuff isn’t even in “Da hood.”

So yes I depend on laws that my government can enforce, with the hopes that it stays the amount of violence until social change can come about.

It’s Big Brother, whether I look to it or not.
Comment by VRB — July 3, 2008 @ 4:17 pm
Let the fisking resume:

You all have put a lot of words in my mouth, because that is the only way you can argue against what I said.

No we have advanced a coherent philosophy – that people have a right to defend themselves against attack, and to acquire and use tools that assist them in this. We have further argued that the United States constitution, which essentially lays out what powers the Federal Government has, not only does not grant it the power to forbid people from owning and using weapons peaceably – it is expressly forbidden from doing these things. Scalia’s decision – to a limited extent agrees with us.

Nowhere in there are we putting words in your mouth. Granted, sometimes we point out the underlying assumptions in your arguments. Sometimes we have to guess at what you are saying because of your creative interpretation of grammar.

I have lived in some bad neighborhoods but have not lived in fear. That is your assumption. It is also your assumption that I would want to disarm every one. But I stand on what I said.

OK – we misunderstood you. When you complained about all the death and misery that people cause with firearms, we assumed that you were scared of them. If you only want to disarm some of your neighbors because you think its for their own good – our counterpoints remain: if someone wants a gun to defend themselves, neither you nor I have any right to stop them. Period. These victim disarmament laws you call for don’t affect people who don’t want to own a gun. They can carry on without them.

Nor does repealing these laws mean that now the state gives permission for people to murder or assault each other. Those laws remain on the books.

Your position – that victim disarmament laws should remain on the books – means that you are calling for people who want to arm themselves for their own defense remain disarmed. You seem to feel that this is for their own good – that they should be prevented from acquiring a gun because they might do something bad in the future with it. In my mind this is as outrageous a position as if you were advocating for laws that forbid teaching blacks to read and write on the off chance that slaves would be able to pass messages back and forth and thus plan an uprising.

I actually don’t see the 2nd amendment as guaranteeing the right of an individual to own a hand gun; but I didn’t call you all idiots for not comprehending the language as I. The more I see of your response toward me; I will say, idiots!

Actually, VRB, at first neither did we call you names. In fact, I believe no contributer called you any names even when you started calling us cowards and the like. I have read your arguments as to what the second amendment means. And yes, it is deeply flawed because it wholly ignores what the Constitution is – a document delineating the powers of a new form of government. In fact, your reaction was precisely the one warned against by Hamilton when he opposed adding the Bill of Rights to the Constitution: he feared that people would mistakenly assume that the constitution granted rights rather than listed the powers of the Federal Government

Please note – there is a wide variation in views here on this board. While there is broad agreement concerning classical liberal values, that’s about it. I, an anarchist, think that the Federal Government is illegitimate and that the U.S. Constitution is null and void. Other contributors strongly disagree with me on this subject. We have wide disagreements on whom we want to see win the presidential election, on the war in Iraq, on immigration, monetary policy and similar weighty issues. Yet, we debate and discuss these issues with decorum and politeness.

You all won, celebrate! You have empathy for no one.

Fuck you. Did you know that my mother in law chased off a would be rapist by brandishing a hand-gun? Or that my mother who lacked the means to defend herself was brutally assaulted and left for dead in the streets of Cambridge? You’ve never helped my mother through a panic attack brought on by a flashback. I have.

If I were a coward, I would confine my thoughts to my own blog.

Yes, because the Internet is so dangerous.

You see Quincy, I see it as y’alls problem too. Why is it some one else rather than yours? People that might have solutions, always seem to be somewhere else. With all this mind power here and at the think tanks, too.

Actually, we don’t see our neighbors being armed as a problem. If my neighbors wanted to kill me, they could burn my house down. Or run me over when I go out for a jog.

I once had a neighbor in Florida who was convinced that Catholics were the devil incarnate. He kept track of all the Catholics that lived in our apartment complex. He often tried to warn me of the danger they posed to me. He warned me that they weren’t only out to get him, but me too. And in a way he was right – my Catholic neighbors posed the same problem to me that they did to him – none at all.

I also feel that government should do something for its citizens. It greatly bothers me that people are more concerned that 10 year old can buy a pack of cigarettes, than can buy a gun.

Speaking for myself, I think 10 year old kids should be able to buy a cigarette, assuming they can find a willing seller. On the other hand, cigarette smoking is very unhealthy. Gun usage – not so much – did you know in Switzerland every home has an automatic rifle? And that every year there is a shooting tournament with kids as young as six plinking away at targets with pretty good sized guns? Yet somehow the Swiss kids don’t get emphysema.

I as one citizen can’t approach that person whose selling them, find their source, arrest; then prosecute.

True. however, there is nothing preventing you from taking up law enforcement if you wanted too. Of course, there is nothing preventing you from shining the harsh light of publicity on someone selling cigarettes to kids and encouraging people to boycott the salesman. Just because you lack the temperament do do something like that does not mean that the government has to step in to do it.

I am usually not a conspiracist but I think the NRA is like a bootlegger it lobbies to protects it franchise of illegal guns.

First – the NRA does not sell guns. It does have gun salesmen and makers whoa re a part of it. But the NRA is an advocacy an educational organization. Secondly, it demonstrates a mindset where someone who makes something and sells it is “exploiting” the person whom they sell it to. News flash! If you buy something because you want it – you are not being exploited! Is the grocery store owner exploiting you by selling you food you want? Are you exploiting your employer by making him pay you his precious money for your labor services?

The black market in guns exists because people want guns and aren’t allowed to buy them legally. Granted, some of the black market serves people who want to use the guns to attack other people. But the black market also serves those who want to defend themselves.

Last but not least, bootleggers hate decriminalization of their business. Why? Because prohibition keeps the competition down

Those young people don’t have the resources to get all those guns, the lowly drug dealers don’t either.

A new gun goes for between $200 – $1,000. A new car goes for $15,000. Many of those lowly drug dealers can afford a used car.

Where I live the most active gang isn’t in the city, it is a motorcycle gang. So the source of some of the stuff isn’t even in “Da hood.”

Oh, well that explains it then. Clearly biker gangs will obey victim disarmament laws. Or their victims can fight them off with baseball bats or something.

So yes I depend on laws that my government can enforce, with the hopes that it stays the amount of violence until social change can come about.

Well, in that case you will be waiting the rest of your life. Government action is violent. I breaks down and destroys society rather than enhancing it. If you want social change that results in a more peaceful society – having a government prosecuting victimless crimes like owning a gun is the second worst way of bringing it about.

It’s Big Brother, whether I look to it or not.

What?!? OK. Even I can’t decipher this one.
Comment by tarran — July 3, 2008 @ 7:15 pm
Tarran,
I was responding to Quincy ref to Big Brother.

The difference of opinions here are like the different hues of a color, aqua, indigo, cyan cornflower, etc.
Comment by VRB — July 3, 2008 @ 9:00 pm
VRB –

All I’m saying is you’ve got no grounds for calling folks cowards when all they want is to live their own lives without undue interference. While I pushed the bounds of civility in expressing that point (and I apologize for that), the point still stands.

You say the government should do something. Fine. First is to stop subsidizing the violence. The inner city neighborhoods that spawned this self-destructive culture are a direct result of LBJ’s Great Society combined with the War on Drugs. Creating a welfare state that keeps people trapped and then creating a black market that encourages violence as a method of advancement sure seems great in hindsight, doesn’t it?

Second, prosecute crimes, don’t restrict liberties. If murder is wrong, prosecute murderers. Don’t go after their chosen implement, because they’ll either continue to use it anyway or find another, while law abiding citizens will be stuck. When you talk about dead bodies piling up on ideology, consider that the places where people are most likely to die by gun violence are the places where guns are most restricted. It’s not cowardice to point out that gun control allows robbers to rob and murderers to kill with near impunity. (It ain’t bravery either, it’s just laying the facts bare. If that offends you, sorry.)

I act in my own life to help the people around me, so it’s not an issue of being a self-interested, pie-in-the-sky libertarian, which is a position you’ve ascribed to me in the past. In addition to that, I throw my voice into the debate on the issues of the day, gun control, health care, free speech, privacy…

I hope that, in doing so, it will help some folks to realize that other, better, courses of action are available than those proffered by the two major parties and the mainstream media. Admittedly, it’s a drop in the bucket compared to the tsunami of big-government proposals coming from those sources. That doesn’t make it worth any less, in this day and age, since the internet is allowing the truth to escape the gatekeepers put in place by the powers that be.

I’ll be happy to debate you on any issue at any time, but when you start calling people cowards and idiots instead of engaging in debate, it simply reflects badly on you. Moreover, with the folks who hand around this website, you will get called on it. Again, I apologize if this offends you.

And you know, it *IS* rather funny that you get a bunch of like-minded people on a website dedicated to advancing liberty. Really, it is.
Comment by Quincy — July 3, 2008 @ 9:59 pm
I wasn’t here to debate, but make a comment. That couldn’t stand.
Comment by VRB — July 4, 2008 @ 3:27 am
“You say the government should do something. Fine. First is to stop subsidizing the violence. The inner city neighborhoods that spawned this self-destructive culture are a direct result of LBJ’s Great Society combined with the War on Drugs. Creating a welfare state that keeps people trapped and then creating a black market that encourages violence as a method of advancement sure seems great in hindsight, doesn’t it?”

This is not the only place murder exist. Talk about trailer trash… ? Check you own.
Comment by VRB — July 4, 2008 @ 3:40 am
“This is not the only place murder exist. Talk about trailer trash… ? Check you own.”

Different music, different clothes, same self-destructive culture of dependency on the welfare state and the drug economy (meth, anyone?). Point still stands.

And again, quit with the insults. You’re only making a damn fool of yourself.
Comment by Quincy — July 4, 2008 @ 7:28 am
You have insulted me, but you don’t even grasp that.
Comment by VRB — July 5, 2008 @ 4:05 am
I’m not making this about race or class, if that’s where you’re going. I’m pointing out that the actions you call for have caused (and will again cause) a destructive rot amongst people who get pulled in by them, regardless of race or class.

There is a common culture of dependency among all who’ve been ensnared by the welfare state. In the case of rural “trailer trash”, the dependence on the state came and removed a bunch of people from the mainstream economy by making welfare a more attractive option. Specifically, this is linked to the minimum wage, which is designed solely to lock people with few skills out of the economy.

Once the black market associated with meth made it into these communities, violence started climbing, just as the black market associated with other drugs (crack) has done in the inner city and just like prohibition had done seventy years before.

It’s a combination of three factors: Denial of access to the mainstream economy, a subsistence-level support from the state, and a lucrative black market created by the state. Again, absolutely nothing to do with race aside from the fact that all the actors were homo sapiens. Put those three factors together at any point in history with any group of people, the result will be exactly the same.

If you choose to be insulted by reading things between the lines that simply aren’t there, it is your choice. I’m glad to be accountable for what I have said. I’ve simply never said what you’ve said I’ve said.
Comment by Quincy — July 5, 2008 @ 1:01 pm
[...] Heller ruling on the scope and applicability of the 2nd amendment. This of course is unsurprishttp://www.thelibertypapers.org/2008/06/26/a-human-right-a-civil-right-fundamental-pre-existing-stri…Nause leads all peers in perseverance Minneapolis-St. Paul Star TribuneThe former LPGA major winner [...]
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June 26, 2008

A Human Right, A Civil Right: Fundamental, Pre-existing, Strictly Scrutinized, Universal, and Incorporated

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