2nd Amendment applies to non-1790's weapons

[Mr. Reactionary]

While it's fairly obvious that the 2nd Amendment applies to "arms" and not just "arms in common existence in 1790", lots of gun-haters think its cute to pretend that it's somehow an originalist argument that only muskets are protected. Yesterday, the Supreme Court issued a per curium opinion admonishing the Massachusetts Supreme Court for using such an argument to justify a State ban on taser stun guns. The case against an abuse victim who defended herself with a banned stun gun must now be retried by the original State court and the Second Amendment issue addressed.

http://legalinsurrection.com/2016/03/supreme-court-2nd-amendment-applies-to-stun-guns/

[Virginiá]

I don't even get why they banned stun guns in the first place. Really, and this is coming from a liberal, these blue states are really going too far with gun control (or now should we say 'weapons control'). What exactly is their intended goal? To completely remove all weapons from their communities and have everyone completely defenseless? So we have to completely rely on police for everything - The same police that liberals (and myself) also constantly complain about abusing power and being largely accountable to no one?

If this country actually wants to disarm, then fire up a movement to repeal/modify the 2nd amendment. Until then, enough with this foolishness.

[Grumpier Than Uncle Joe]

I don't even get why they banned stun guns in the first place. Really, and this is coming from a liberal, these blue states are really going too far with gun control (or now should we say 'weapons control'). What exactly is their intended goal? To completely remove all weapons from their communities and have everyone completely defenseless? So we have to completely rely on police for everything - The same police that liberals (and myself) also constantly complain about abusing power and being largely accountable to no one?

If this country actually wants to disarm, then fire up a movement to repeal/modify the 2nd amendment. Until then, enough with this foolishness.

Awesome

[True Federalist (진정한 연방 주의자)]

If it didn't, then I guess our air force is unconstitutional since it mentions only an army and a navy.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

If this country actually wants to disarm, then fire up a movement to repeal/modify the 2nd amendment. Until then, enough with this foolishness.

Yeah. I think the notion of a constitutional right to own a firearm is absolutely ludicrous, but it is in our constitution and if we want it to not be there any more we should make an effort to, well, actually take it out.

[I spent the winter writing songs about getting better]

This was a very stupid law. While stun guns are nowhere near as safe and non-lethal as they are frequently made out to be (aside from the effects they can have on the heart, consider they would most likely be used on streets and sidewalks. Now consider what happens when a person falls flat onto solid concrete) making it illegal to have them in Massachusetts when you can still legally buy actual guns (even with lots of hoops to jump through) is pretty absurd.

[Classic Conservative]

It's Massachusetts we've banned fireworks for God's sake.

[RightBehind]

Now if only Conservatives will acknowledge that the First Amendment applies to more than just Christians. They can't have it both ways.

[dead0man]

Now if only Conservatives will acknowledge that the First Amendment applies to more than just Christians. They can't have it both ways.

I just hope left leaning types under the age of 30 will eventually acknowledge that both exist.


edit..and that there isn't sh**t they can do about it and they'll have to learn to accept them.

[Mr. Reactionary]

Now if only Conservatives will acknowledge that the First Amendment applies to more than just Christians. They can't have it both ways.

 And yes, the Donald hasn't proposed a single structural change to the US constitution ... 

Suspending Free Exercise of Religion under the 1st Amendment [Muslim ban]

[Kingpoleon]

Now if only Conservatives will acknowledge that the First Amendment applies to more than just Christians. They can't have it both ways.

Most Conservatives do.

[136or142]

This is the actual text of the Second Amendment:

"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.""

It doesn't any Arms, or all Arms, it merely says Arms. So, from my reading, a legislature can ban any gun it wants, as long as it doesn't ban all Arms.  So, if a legislature wants to ban all guns except for the musket, by my reading, that would be perfectly Constitutional.

I'd like to know where you read into the Second Amendment that it wasn't meant to apply only to guns circa 1790.  Sounds like you're reading into the Constitution your own interpretation.

[Associate Justice PiT]

This is the actual text of the Second Amendment:

"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.""

It doesn't any Arms, or all Arms, it merely says Arms. So, from my reading, a legislature can ban any gun it wants, as long as it doesn't ban all Arms.  So, if a legislature wants to ban all guns except for the musket, by my reading, that would be perfectly Constitutional.

I'd like to know where you read into the Second Amendment that it wasn't meant to apply only to guns circa 1790.  Sounds like you're reading into the Constitution your own interpretation.

     It would require a special kind of ignorance about what the Constitution is to think that it was meant to be frozen in 1790.

[136or142]

This is the actual text of the Second Amendment:

"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.""

It doesn't any Arms, or all Arms, it merely says Arms. So, from my reading, a legislature can ban any gun it wants, as long as it doesn't ban all Arms.  So, if a legislature wants to ban all guns except for the musket, by my reading, that would be perfectly Constitutional.

I'd like to know where you read into the Second Amendment that it wasn't meant to apply only to guns circa 1790.  Sounds like you're reading into the Constitution your own interpretation.

     It would require a special kind of ignorance about what the Constitution is to think that it was meant to be frozen in 1790.

You mean Scalia kind of ignorance that the Constitution should only be read literally and that any attempt to 'read into' it in order to update it to modern times are 'interpretations' and not supported by the document itself?

[Associate Justice PiT]

This is the actual text of the Second Amendment:

"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.""

It doesn't any Arms, or all Arms, it merely says Arms. So, from my reading, a legislature can ban any gun it wants, as long as it doesn't ban all Arms.  So, if a legislature wants to ban all guns except for the musket, by my reading, that would be perfectly Constitutional.

I'd like to know where you read into the Second Amendment that it wasn't meant to apply only to guns circa 1790.  Sounds like you're reading into the Constitution your own interpretation.

     It would require a special kind of ignorance about what the Constitution is to think that it was meant to be frozen in 1790.

You mean Scalia kind of ignorance that the Constitution should only be read literally and that any attempt to 'read into' it in order to update it to modern times are 'interpretations' and not supported by the document itself?

     I disagree with Scalia's textualist approach. It ignores the changes in culture over time. To make an analogy to special relativity, it assumes the Constitution to be an invariant quantity (it does not change), whereas an originalist takes it to be a covariant quantity (it does change, but into another, equally just form). The enlightenment thinkers who influenced the Founding Fathers broadly propounded this form of government, because they believed in the universal applicability of these basic principles, to whatever society in whatever time.

     Besides, every reading of every text is an interpretation.

[136or142]

This is the actual text of the Second Amendment:

"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.""

It doesn't any Arms, or all Arms, it merely says Arms. So, from my reading, a legislature can ban any gun it wants, as long as it doesn't ban all Arms.  So, if a legislature wants to ban all guns except for the musket, by my reading, that would be perfectly Constitutional.

I'd like to know where you read into the Second Amendment that it wasn't meant to apply only to guns circa 1790.  Sounds like you're reading into the Constitution your own interpretation.

     It would require a special kind of ignorance about what the Constitution is to think that it was meant to be frozen in 1790.

You mean Scalia kind of ignorance that the Constitution should only be read literally and that any attempt to 'read into' it in order to update it to modern times are 'interpretations' and not supported by the document itself?

     I disagree with Scalia's textualist approach. It ignores the changes in culture over time. To make an analogy to special relativity, it assumes the Constitution to be an invariant quantity (it does not change), whereas an originalist takes it to be a covariant quantity (it does change, but into another, equally just form). The enlightenment thinkers who influenced the Founding Fathers broadly propounded this form of government, because they believed in the universal applicability of these basic principles, to whatever society in whatever time.

     Besides, every reading of every text is an interpretation.

1.So, do you agree that Scalia had a special kind of ignorance?

2.Do you disagree that many Second Amendment absolutists were big fans of Scalia?

[Mr. Jew]

It's Massachusetts we've banned fireworks for God's sake.

Yes and ever since then Southies have stopped throwing them around like bird feed at 10:30 at night in Joe Moakley Park!

......oh wait.

[Mr. Jew]

This is the actual text of the Second Amendment:

"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.""

It doesn't any Arms, or all Arms, it merely says Arms. So, from my reading, a legislature can ban any gun it wants, as long as it doesn't ban all Arms.  So, if a legislature wants to ban all guns except for the musket, by my reading, that would be perfectly Constitutional.

I'd like to know where you read into the Second Amendment that it wasn't meant to apply only to guns circa 1790.  Sounds like you're reading into the Constitution your own interpretation.

     It would require a special kind of ignorance about what the Constitution is to think that it was meant to be frozen in 1790.

Yes, the whole musket bore only argument would be like stating that the First Amendment only applies to religions formed before 1790 or that only text written down on parchment is free from censorship and that the state can forbid digital speeches. Insanity really.

I would l like less guns in the US but lets do things the right way as Virginia said.  Do not argue what the language means,  just change it damn it!

[Mr. Reactionary]

I'd like to know where you read into the Second Amendment that it wasn't meant to apply only to guns circa 1790.  Sounds like you're reading into the Constitution your own interpretation.

The flippin Supreme Court debunked this foolish argument in the opinion that this thread is about. Did you not bother reading it? All 8 Supreme Court justices including Ginsburg, Sotomayer, Kagan, and frickin Breyer (who hates rights) unanimously agreed that the 2nd Amendment is not somehow limited to 1791 technology. Otherwise there would be no free speech protections for protest signs made on posterboards, no religious protections for Mormons, no press protections for Newspapers printed on laser printers, no warrant protections against cars, and no torture protections against the electric chair. I mean, have you really never considered that the 1st Amendment applies to speech on radios or televisions or the internet or microphones at rallies or any of the examples I already mentioned? The founders were aware that things would change beyond their wildest dreams. That's why there is an entire article in the Constitution on how to amend it. The right to keep and bear arms is not magically frozen in time unlike the rest of the bill of rights just because "something something only purpose is teh kill!"

http://www.supremecourt.gov/opinions/15pdf/14-10078_aplc.pdf

Internal Citations Omitted for your reading pleasure.

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[136or142]

I'd like to know where you read into the Second Amendment that it wasn't meant to apply only to guns circa 1790.  Sounds like you're reading into the Constitution your own interpretation.

The flippin Supreme Court debunked this foolish argument in the opinion that this thread is about. Did you not bother reading it? All 8 Supreme Court justices including Ginsburg, Sotomayer, Kagan, and frickin Breyer (who hates rights) unanimously agreed that the 2nd Amendment is not somehow limited to 1791 technology. Otherwise there would be no free speech protections for protest signs made on posterboards, no religious protections for Mormons, no press protections for Newspapers printed on laser printers, no warrant protections against cars, and no torture protections against the electric chair. I mean, have you really never considered that the 1st Amendment applies to speech on radios or televisions or the internet or microphones at rallies or any of the examples I already mentioned? The founders were aware that things would change beyond their wildest dreams. That's why there is an entire article in the Constitution on how to amend it. The right to keep and bear arms is not magically frozen in time unlike the rest of the bill of rights just because "something something only purpose is teh kill!"

http://www.supremecourt.gov/opinions/15pdf/14-10078_aplc.pdf

Internal Citations Omitted for your reading pleasure.

You must be logged in to read this quote.

Fine, but that's their interpretation of the Constitution and isn't based on anything actually written in the Constitution or the Bill of Rights.

[Mr. Reactionary]

I'd like to know where you read into the Second Amendment that it wasn't meant to apply only to guns circa 1790.  Sounds like you're reading into the Constitution your own interpretation.

The flippin Supreme Court debunked this foolish argument in the opinion that this thread is about. Did you not bother reading it? All 8 Supreme Court justices including Ginsburg, Sotomayer, Kagan, and frickin Breyer (who hates rights) unanimously agreed that the 2nd Amendment is not somehow limited to 1791 technology. Otherwise there would be no free speech protections for protest signs made on posterboards, no religious protections for Mormons, no press protections for Newspapers printed on laser printers, no warrant protections against cars, and no torture protections against the electric chair. I mean, have you really never considered that the 1st Amendment applies to speech on radios or televisions or the internet or microphones at rallies or any of the examples I already mentioned? The founders were aware that things would change beyond their wildest dreams. That's why there is an entire article in the Constitution on how to amend it. The right to keep and bear arms is not magically frozen in time unlike the rest of the bill of rights just because "something something only purpose is teh kill!"

http://www.supremecourt.gov/opinions/15pdf/14-10078_aplc.pdf

Internal Citations Omitted for your reading pleasure.

You must be logged in to read this quote.

Fine, but that's their interpretation of the Constitution and isn't based on anything actually written in the Constitution or the Bill of Rights.

Again, did you read? No. Its based on their analysis of the sentence structure and text of the 2nd Amendment (which despite anti-gunner fantasies is actually a part of the Constitution). This case was only allowed in federal courts in the first place because it pertained to a Constitutional right (the 2nd Amendment "right of the people to keep and bear arms") which is written in the text of the constitution. The text of the amendment is unambiguous in assuming that there is a right which predates the constitution, and that the right will continue to exist in perpetuity (absent a constitutional amendment). "Shall not be" is forward looking, otherwise it would say "has not been". The clause "right of the people to keep and bear arms" as written, does not contain a condition that "arms" has a special definition which suspends time. It does not say "some arms"; it does not say "shall not be entirely infringed"

The Massachusetts Supreme Court tried your argument about how the text of the 2nd Amendment contains a magical definition that suspends time. The U.S. Supreme Court (unanimously) said "hmmm ... we looked at the text of the 2nd Amendment and see 0 evidence for your b.s. argument Massachusetts. In fact, there's already one of our cases where we said as much."

All of this involved looking at the literal text of the U.S. Constitution. You must not have read because to claim that they did not base their opinion on the actual text of the Constitution is just wrong. I understand that you think guns am icky, but you do realize you make other gun control types look foolish when you make broad claims without any understanding of the topic, right?

[136or142]

Fine, but that's their interpretation of the Constitution and isn't based on anything actually written in the Constitution or the Bill of Rights.



Again, did you read? No. Its based on their analysis of the sentence structure and text of the 2nd Amendment (which despite anti-gunner fantasies is actually a part of the Constitution). This case was only allowed in federal courts in the first place because it pertained to a Constitutional right (the 2nd Amendment "right of the people to keep and bear arms") which is written in the text of the constitution. The text of the amendment is unambiguous in assuming that there is a right which predates the constitution, and that the right will continue to exist in perpetuity (absent a constitutional amendment). "Shall not be" is forward looking, otherwise it would say "has not been". The clause "right of the people to keep and bear arms" as written, does not contain a condition that "arms" has a special definition which suspends time. It does not say "some arms"; it does not say "shall not be entirely infringed"

The Massachusetts Supreme Court tried your argument about how the text of the 2nd Amendment contains a magical definition that suspends time. The U.S. Supreme Court (unanimously) said "hmmm ... we looked at the text of the 2nd Amendment and see 0 evidence for your b.s. argument Massachusetts. In fact, there's already one of our cases where we said as much."

All of this involved looking at the literal text of the U.S. Constitution. You must not have read because to claim that they did not base their opinion on the actual text of the Constitution is just wrong. I understand that you think guns am icky, but you do realize you make other gun control types look foolish when you make broad claims without any understanding of the topic, right?

Fine, but a federal appeals court upheld a state law banning concealed carry and the Supreme Court itself just upheld a Connecticut law outlawing 'assault rifles.'

So, it seems the Courts themselves don't agree with you that the right to bare Arms is absolute or that all guns are protected.

So, by your own arguments, your claims are B.S.

[Mr. Reactionary]

Fine, but a federal appeals court upheld a state law banning concealed carry and the Supreme Court itself just upheld a Connecticut law outlawing 'assault rifles.'

So, it seems the Courts themselves don't agree with you that the right to bare Arms is absolute or that all guns are protected.

So, by your own arguments, your claims are B.S.

1.) The Supreme Court denying cert has no precedential value and is not the same thing as "upholding" a law.

2.) A federal circuit decision is only binding within its territory, and until the Supreme Court decides whether federal courts should review gun control laws under intermediate scrutiny or strict scrutiny, the opinion you cite has less authority than you'd like. The Circuits are all over the map and the Supreme Court will have to intervene soon. [The 4th, 6th, and 7th Circuits apply strict scrutiny; DC, 2nd, and 9th Circuits apply intermediate scrutiny]. Plus, the case you cite out of California was limited to review of only the concealed carry law, and not the entire scheme as relates to a right to carry. There's more to come.

3.) I never said the right to keep and bear arms was absolute and saying that I did is a strawman. We have carveouts for the 1st, 4th, 5th, and 6th amendments; logically that would also apply to the 2nd. But that also means the 2nd has to be treated the same as the other amendments. We don't magically freeze time for any of the other amendments (except for the 7th Amendment division of law and equity, but that's the subject of a different rant).

So again, the Supreme Court unanimously said the 2nd Amendment applies to non-1790's weapons. This was based on the text of the Constitution, is consistent with how the rest of the bill of rights is treated, and is not contradicted by any federal case law you can cite. I'd say they have a more credible argument than you do.

[136or142]

Fine, but a federal appeals court upheld a state law banning concealed carry and the Supreme Court itself just upheld a Connecticut law outlawing 'assault rifles.'

So, it seems the Courts themselves don't agree with you that the right to bare Arms is absolute or that all guns are protected.

So, by your own arguments, your claims are B.S.

1.) The Supreme Court denying cert has no precedential value and is not the same thing as "upholding" a law.

2.) A federal circuit decision is only binding within its territory, and until the Supreme Court decides whether federal courts should review gun control laws under intermediate scrutiny or strict scrutiny, the opinion you cite has less authority than you'd like. The Circuits are all over the map and the Supreme Court will have to intervene soon. [The 4th, 6th, and 7th Circuits apply strict scrutiny; DC, 2nd, and 9th Circuits apply intermediate scrutiny]. Plus, the case you cite out of California was limited to review of only the concealed carry law, and not the entire scheme as relates to a right to carry. There's more to come.

3.) I never said the right to keep and bear arms was absolute and saying that I did is a strawman. We have carveouts for the 1st, 4th, 5th, and 6th amendments; logically that would also apply to the 2nd. But that also means the 2nd has to be treated the same as the other amendments. We don't magically freeze time for any of the other amendments (except for the 7th Amendment division of law and equity, but that's the subject of a different rant).

So again, the Supreme Court unanimously said the 2nd Amendment applies to non-1790's weapons. This was based on the text of the Constitution, is consistent with how the rest of the bill of rights is treated, and is not contradicted by any federal case law you can cite. I'd say they have a more credible argument than you do.

1.I wasn't aware that it didn't set a precedent.  You are correct on that, but it does continue the trend of  many Federal Courts and the Supreme Court taking a narrower view of what the Second Amendment guarantees and protects.

3.This is what you wrote:  "The clause "right of the people to keep and bear arms" as written, does not contain a condition that "arms" has a special definition which suspends time. It does not say "some arms"; it does not say "shall not be entirely infringed""

That reads to me like you think the Second Amendment is absolute.

[Mr. Reactionary]

3.This is what you wrote:  "The clause "right of the people to keep and bear arms" as written, does not contain a condition that "arms" has a special definition which suspends time. It does not say "some arms"; it does not say "shall not be entirely infringed""

That reads to me like you think the Second Amendment is absolute.

So when looking for limits on fundamental rights listed in the Constitution, its easiest to look to  either the right protected (noun) or the limitation imposed (verb). Take the 1st Amendment. As written, it says "Congress shall make no law ... abridging the freedom of speech". That is also absolute wording, but we admittedly don't interpret it as such (except Hugo Black). The wiggle room is on what constitutes speech and what constitutes an abridgment.

Obscenity, imminent incitement to violence, slander, technically are all speech in that they are spoken words/printed ideas. Federal Courts however treat them as if they are, by definition, categorically excluded from the definition of speech. That's how the 1st Amendment's absolute language has largely been reconciled with the need for exceptions. I think you could do the same for the 2nd in regards to the definition of "arms" and carve out things like bombs or tanks or rockets as being categorically excluded from the definition of arms. But saying that the definition of arms is limited to only backward looking technology is not the same.

You can also look to what is being limited. As with the definition of "speech", this comes up with the 1st Amendment ban on the government "abridg[ing]" free speech or the right to assemble. Passing building code regulations which cap the number of people allowed in certain rooms impacts the right to assemble, but is generally not considered an abridgment. The 2nd Amendment prohibits "infringe[ment]" of the right to keep and bear arms. Clearly this wouldn't extend to ordinances on shooting in city limits, or bans on selling defective guns, or preventing convicts from buying guns after due process, or other government laws which impact guns but are not targeted at them.

In the case this whole thread is about, there was an absolute ban on stun gun ownership/possession/carry in Massachusetts. An absolute ban is clearly an infringement, so the only way this law could be good is if stun guns aren't "arms". Then the 2nd Amendment would not even apply. That they are arms has yet to be determined, but when the State court rehears the case, they are not allowed to argue that stun guns are not arms simply because they aren't from the 1790s.