NJ's tricks to make sure gun owners can't carry guns is failing, just like NY's did (user search)
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  NJ's tricks to make sure gun owners can't carry guns is failing, just like NY's did (search mode)
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Author Topic: NJ's tricks to make sure gun owners can't carry guns is failing, just like NY's did  (Read 1587 times)
politicallefty
Junior Chimp
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Posts: 8,200
Ukraine


Political Matrix
E: -3.87, S: -9.22

P P
« on: May 21, 2023, 12:05:18 AM »

I agree with the point of view that the 2nd Amendment is an individual right, as opposed to a right to arm well regulated militias. The idea was that citizens should be skilled with arms so that when called to serve they would be competent. So no, I don't think SCOTUS was pushing the legal envelope. The liberal Lawrence Tribe has observed that the 2nd Amendment is a pain in the ass amendment, that he wished would go away. I agree with that.

I haven't read Tribe's observations as to the 2nd Amendment, but I will say that the Court has already engaged in judicial activism by creating the standard that they did. The "history and traditions" test goes far beyond originalism. It supplants the text, ideals, and principles of the Constitution for something else entirely. The right-wing is giving the 2nd Amendment a deferential absoluteness that not even the First Amendment has from its most ardent absolutists.

The structure of the 2nd Amendment is unique in the Constitution with just one other exception (the Copyright Clause). The prefatory clause has essentially been read out of the Constitution by those on the right. I think they are wrong to do so. The text is there for a reason and it has meaning. You can read the 2nd Amendment as an individual right without ignoring the prefatory clause. That means that it is an individual right that can be regulated by the government. I think some people get caught up on the word militia, which meant something quite different than it does today. It's not that meaning has changed per se, just that most people think of militia in the context of the organized militia under the direct control of the government or rogue groups attempting to overthrow the government.

If you consider the 2nd Amendment in the context of the unorganized militia, which was at one point all able-bodied males within a specific age range, it makes better sense. I think it can be read that the Founders intended for the militia to be able-bodied men. That certainly would not comport with today's standards or the Fourteenth Amendment. In that case, it would make sense to read it as the adult citizenry. In that context, well-regulated must mean something more than the government organizing its own forces (i.e. the military and National Guard). The right can be regulated, but not regulated out of existence.

As for the self-defense argument, that is a right that belonged to the people long before 2nd Amendment. Self-defense was and is a right of the people under common law, such as through the castle doctrine.
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politicallefty
Junior Chimp
*****
Posts: 8,200
Ukraine


Political Matrix
E: -3.87, S: -9.22

P P
« Reply #1 on: May 21, 2023, 08:14:47 AM »

I agree that guns can be regulated to a "reasonable" extent. The common law is not Constitutional law.

Of course not. However, common law is the basis for our entire legal system. There are many rights and privileges that we've carried over from common law into constitutional law. 
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politicallefty
Junior Chimp
*****
Posts: 8,200
Ukraine


Political Matrix
E: -3.87, S: -9.22

P P
« Reply #2 on: May 26, 2023, 06:20:26 PM »

Yeah. Now one knows why I just step up to the plate an favor repealing the 2nd Amendment as a gun grabber. There is no good way to finesse the 2nd Amendment, except through what I would consider judicial activism.

Hopefully, NYS's and NYC's outstanding stats regarding the lowest gun deaths in the nation I believe, will not be eroded over time, and the places regress to the more Texas like levels of gun deaths. That would be most unfortunate.

Your proposal (which many others here support) is a proposal to strip me of the right to effectively defend myself at the moment I will need this the most should I not be fortunate enough to live in the right state.  Me, and millions of others of law-abiding citizens.  I'm trying to make this as impersonal as possible, but if this idea actually went through it would reduce my ability to defend myself, and it is frustrating that people can't acknowledge even the fact that such a proposal is coming at my epense (in part).

If elections have consequences, constitutional amendments have greater consequences.  Once done, they require supermajorities in both Houses of Congress to undo the damage.  Law-abiding citizens will end up defenseless for their entire lifetimes.  Security systems are not defense.  911 is not defense; not when the police will be there in minutes, but the armed criminal is already where you are.

I can't speak for Torie, but I for one would still support a fairly robust (at least by current world standards) statutory right to gun ownership even if it were no longer enshrined as a constitutional provision that tends to get interpreted in an absolute way.

More generally I think it's time to consider the possibility that the Second Amendment is simply poorly written and this, not anything ideological, is the lion's share of why the prefatory clause is such a minefield. That first comma really throws aspiring constitutional exegetes for a loop.

I largely share your viewpoint here. You can absolutely have a robust statutory right without the absolutism that some would like to read into the 2nd Amendment. A regulated right to gun ownership can work. I imagine that's probably where the average American is when it comes to gun ownership. Unfortunately, the issue with people like Fuzzy is that they live in a siege mentality. The weapons of war that are already plaguing this country won't be enough for self-defense for them. How long before some right-wing judges decide that bans on machine guns are unconstitutional? Second Amendment jurisprudence has lurched far to the right in recent years.

I think what we've discovered with conservative jurisprudence is that textualism was merely a means to a certain end. When it works against them, they ditch it as soon as possible. You only get absolutism with the 2nd Amendment if you completely ignore the prefatory clause. As I noted above, it is one of only two places in the Constitution that include such clauses. If other amendments had such clauses, they would necessarily change the scope of the rights mentioned. We would have to interpret the First Amendment quite differently if it included prefatory clauses regarding the freedom of speech or freedom of the press. But even then, as I mentioned before, even free speech absolutists have limiting principles. I have not seen any coherent limiting principle when it comes to 2nd Amendment absolutists.
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