Nice you are honest and all here.

Pragmatically, I think it useful for Dems (and those running for president the last few cycles generally said so) to voice the general view that there is some basic right to own firearms. Bill Clinton didn't disagree, to my knowledge.

Heller underlines this still allows many regulations, even btw on 'assault weapons.' The fear, which the SC avoiding to specificially declare the right you express support of as a legal matter helped, was that such regulations were but a foot in the door.

Comparably, many accept things like parental notification and other limitations on abortion in part since they know the core right is upheld. Many of our rights are regulated, even free speech [just ask Carlin supporters].

Still, I supported Heller because I think the basic result is right, and thought it should have been said by now. But, if your interest was elsewhere, fine -- you aren't alone on such things.

Courts also pragmatically make decisions often enough -- it's part of the mix, and we need to be realistic about that. Stevens dissented in Troxel v. Granville in part to keep out of custody decisions. So, it was not really out of character for him on that subject either.
 

an interersting dilemma professor levinson .. considering that law .. ethics ..and morality are all so entertwined .. each hinging on some precept based on considerations found in the other .. such questions are ..imo hopelessly entangled .. eternally gnarled and thorny.. eh ??

i've often marveled at the differences which can be derived from a given statute .. or a specific phrase .. based on the perspective of the reader or interpreter ..

i agree with your premise concerning the results of "gun control" concerning the democratic party .. it certainly did them harm ..

and it's quite a quandry isn't it ?

when we add into the mix that "laws" in general are passed by political bodies ..which by their very definition and by the very basis of their formation .. have a bias one way or another .. regardless ...but which .. in our system may ebb and flow betwixt competing narratives .. it becomes .. well .. gnarled and throny .. it's no wonder one can get pricked .. [npi]

i appreciate your concerns .. and i think you've addressed a salient point .. can any conclusion.. on almost any topic .. be derived at without a bias encroaching from the hustings of ones essential make-up .. ?? we can allow for our persoanl bias .. imo .. but we can never escape it in it's entirety ..

there are rulings by various courts with which i disagree .. but the fundamental .. imo .. of constitutional citizenship is to accept the law as it has been rendered ..

the difference between some of us and others is that once the law has been laid .. some of us see acceptance as being part of the rules and some others of us refuse to acknowledge the rules while still wanting to use the rules to remain in the game ..

there's a fundamental difference ..imo ..between "playingby the rules".. and "using the rules" .. playing by the rules sometimes involves accepting outcomes one does not like .. using the rules involves keeping the game open until one achieves the only result one will accept ..

such are the divisions of our current society .. imo

best to you professor .. i enjoy reading your posts here and elsewhere ..
 

Right: winning elections is more important than educating the electorate -- and some law professors -- to the actual history of the Second Amendment, and the LEGAL AUTHORITY -- the DEBATES of those who wrote it -- which limits the possible "interpretations" of the Second, specifically as concerns the fact that it has nothing whatever to do with "individual" anything.

Yep: winning elections is far more important than educating the electorate in the actual legal history, and the simple fact that the militia is a PUBLIC institution, whereas the private individual is not, therefore that there are two bodies of law, one governing each.

When one substitutes politics for rule of law one puts oneself on the road to chaos also in the laws.

But none of that matters: all that matters is the "winning," not the how of doing so. Just ask Bushit: lying the country into illegally invading and occupying a country as an electoral strategy, and foundation for a "legacy," is 'way more important than any old standards, such as a Constitution, and laws, and limiting one's analyses of law to actual, legitmate legal authority.

Otherwise, there was an excellent op-ed -- by a law professor not named Levinson -- in which was applied not only an individual "right" to own guns, but also the law of self-defense, and its limits. Thus it detailed the fact that non-lthal alternatives to guns are soon to be on the market (if not already). Once one can legally buy and own, as example, a taser, one no longer has the excusee, "I had no alternative but to blow him away."

Thus making of Heller an anomaly, a companion piece with the lawless Bush decision from the same group of corrupt anti-Americans.
 

A judge must appear to be non partisan because her or she is acting as a neutral referee between parties in cases brought before the Court.

In contrast, the press likes to portray themselves as non-partisan simply to promote the illusion that their work product is objective and not arguing a particular point of view.

I would suggest that academics fall under the second category.

I prefer Sandy's suggestion that academics (and the press) make their points of view known so their work product can be viewed through that filter.

For example, using Sandy's Exxon research example, it is ridiculous to consider global warming research funded by energy companies to be tainted, but not that funded by bureaucracies seeking research to support their regulatory plans.

I would suggest that more knowledge about a content provider's point of view, the better.
 

Sandy,

Thanks for the thoughtful exploration of a tough set of questions.

There is a bit of equivocation in Posner's comments that have direct bearing on the issues. It's not clear whether he was opposing "public" identification by professors of partisan political views because it would lead others to question the integrity of our arguments. Or was he saying that we should forswear any party attachment (genuinely) because that would compromise the integrity of our analysis.

The former position seems dishonest because it removes from public view information that is relevant to the evaluation of an academic's position.

The second position seems right, but it asks a lot (though no more than we ask of judges).

Brian
 

This comment has been removed by the author.
 

"Joe" --

"So Levinson and others who don't just support Heller pragmatically, but thinks the bottom line (individual right with many regulations allowed) is sound constitutional law are supporting a travesty akin to Bush v. Gore?"

Essentially, yes: one likes the result, one avoids discussing the decision as to whether it even has merit. One supports Bushit, one avoids the issues of his crimes by invoking Clinton. Or even Truman.

"[and 'educated' the electorate on that point]"

Yes: as ignorance of the law is no excuse, one should want the electorate educated in what the law is -- and isn't. Gun-nuts constantly jabber about their "right of self-defense" -- but NEVER mention others' right not to be defended against based upon law-illiteracy, narcissism, and rejection of the rule of law.

NEVER do they admit, let alone mention, that the right of self-defense has always been and continues to be REGULATED AND LIMITED by law.

"Really? As to tasers, Heller underlined how handguns are commonly recognized defensive items by our society. When they are no longer, when tasers take their place, perhaps your pt on that would have more force."

You simply don't get it, right? --

1. It has been asserted by gun-nuts that gun-control is WHOLLY UNCONSTITUTIONAL. Period. Among the most ignorant of their assertions on that point is that the Founders/Framers were against gun-control. In fact, the Founders/Framers DISARMED the Tories, upon suggestion by the Continental Congress. In fact, they DISARMED those who REFUSED to SIGN a statutorily-mandated oath of loyalty to "the cause," also on suggestion of the Continental Congress.

And what did they do with those guns? They gave them -- first dibs -- to the Continental Army, and -- second dibs -- to the local militia, which latter had all along been UNDER THE LAW. (If one reads the "raw" legal history of the colonies, one learns that, during especially pressing emergency, privately-owned guns were "appropriated" by the community for the defense of the community -- "individual right" notwithstanding.)

In short, the Founders/Framers were not opposed to any degree of gun-control, up to and including "grabbing" and prohibition. In other words: they weren't loony gun-nuts who couldn't care less about anyone or anything beyond themselves and their addiction to brain-damaging lead.

2. As pointed out the Bill of Rights was framed by the first Congress -- populated by Founders and Framers -- under the newly-ratified Constitution. Ratification of it was completed on December 15, 1791, and SUBSEQUENTLY, on May 8, 1792, the Congress -- populated by Founders and Framers -- enacted the "Militia Act". Which "Act" REGULATES the well regulated militia, which is the subject of the Second, thus which OBVIOUSLY means the Second Amendment DOES NOT protect whatever is within the scope of that Amendment FROM the rule of law.

"FROM the rule of law" has been the gun-nuts' delusional wet dream.

But where have the gun-nuts been on the point? That gun-control is flatly unconstitutional, in any degree; therefore, if they could establish in law [the lie] that the Second is [also] intended to "protect" an "individual" right, that would wipe out all gun-control, because the Second Amendment "prohibits" gun control.

(They don't want to talk about the Militia Clauses in the Constitution; nor about the full contents of the "Militia Act"/Title 10, because the refutations of their various "arguments" are contained in those.)

3. So where are we now that they got a right-wing extremist majority on the SC to IGNORE the legislative history of the Amendment, and by that means establish the lie of an "individual" right "protected" by the Second? Exactly where we were before, except doubly so:

Instead of one set of regulations, the SC has opened the door to a second set of regulations -- that applying to the Second Amendment as concerns the phony "individual" right "protected" thereby.

Congratulations, gun-nuts: you've not only been duped and played all along by the gun industry-front NRA, but you've been duped and played with an "argument" that is a dead end. The "purpose" of having it declared as law that the Second "protects" an "individual" right was promised to be the means by which all gun-control regulation would be declared unconstitutional.

Instead, Scalia was forced to admit that gun-control regulations are NOT unconstitutional, even as concerns the Second; so the situation remains basically the same -- but with TWO sets of regulations where there had been ONE.

If there were a means to actually determine that the DC gun ban was unconstitutional, then one needn't go the BOGUS route of the Second Amendment to get there: the same argument could have been made outside the scope of the Second -- which is where -- OUTSIDE the scope of the Amendment -- individual, private right to own guns has all along and does exist.

The Second concerns ONLY well regulated militia. The militia is a PUBLIC institution with specific stipulated purposes, by and large those of public safety. A private individual is NOT a PUBLIC institution, nor part of that PUBLIC institution UNLESS FORMALLY ENLISTED.

So the purpose was not actually so much as to "prove" that the Second "protects" an "individual" right FROM the rule of law -- no sane society would believe, let alone hold, so -- but to establish an "individual" right under the Second to having one's own private militia/standing army.

Bottom line: the decision transgresses a bright red line established by the Founders/Framers, and as had always been maintained in civilian-controlled gov'ts: the military is "always in exact subordination to the Civil Power" (Jefferson, Sam Adams, others). Thus the Framers established in the Constitution that the militia will be regulated, under law, by CONGRESS; and that didn't change with the ratification of the Second Amendment.

Watch: now that the gun-nuts have their foot in the door, they will return to pushing their delusion-based "right" to form "unorganized"/"citizen" militia -- a right which NEVER existed in the first instance (see for the Founders/Framers' position on this point not only the "Declaration," but also their responses to Shays' rebellion pre-Constitution, and "Whiskey" rebellion post-ratification) -- in order to be able to "defend against" the gum'mint based solely upon their opposition to the existance of gov't; or at least a system of gov't they disapprove. All behind a fiction of gov't "tyranny" which they define for their own convenience.

This is a step toward the civil war they want.

By contrast, see Presser.
 

This is a step toward the civil war they want.

????



care to expand on that rant ?? what 'civil war' 'who' wants ??
 

J.N., are you sure you're not G.E.Ernst's sock puppet?
 

"J.N., are you sure you're not G.E.Ernst's sock puppet?"

Let me check . . .

Nope. I am not now and have never been a sock puppet.

And I've not read Wilde's "The Importance of Being Ernst".
 

"Jkat" --

"This is a step toward the civil war they want.

"????

"care to expand on that rant ?? what 'civil war' 'who' wants ??"

I've been dealing with gun-nuts -- eyeball-to-eyeball, toe-to-toe -- for over fifteen years. Add in study of American colonial law, legal history/ies of Constitution and Bill of Rights, studies of Federalist and Anti-Federalist writings.

Ever heard of "The Federal Society" -- which is actually states' rights/anti-Federalist? Ever heard of the "Neo-Confederate Society"? The North won the Civil War -- and went home. Many in the South have continued to foight the Civil War.

Ever heard of the so-called "militia movement," and heard from them what they are about?

Ever heard of Tim McVeigh and Terry Nichols?

Wayne LaPierre?

Atty. Linda Thompson?
 

It's a thorny problem. Law professors actually have quite a bit of influence on this area of the law; if it wasn't for all the scholarship that's been done on the Second Amendment, Heller surely wouldn't have come out the way it did. Say a bunch of Republican law professors decide that overturning Roe would hurt the Republicans, so they do all this originalist work attempting to persuade Scalia and Thomas that the due process clause of the Fourteenth Amendment was actually intended to include some kind of right to bodily autonomy. Even if we assume that law professors are never this conniving, their desire to see Roe upheld could bias their scholarship. Of course, ideological bias probably plays a role in most legal scholarship, but there's something a little more unseemly about, to continue the example, writing that Roe was right because you want to see Republicans win elections than writing that Roe was right because you're pro-choice.
 

thanks for the expansion JN ..and yeah .. i have heard of all those things .. people .. .orgs..etc .. i was raised in the south .. in the midst of a bunch of unreconstructed rebels .. most of whom grw up and joined the military at one point or another ..

i think it's easy to confuse bluster with intent ..

i'm really not too worried about the montana militiamen invading DC tomorrow though ..

your perception of the issue may be influenced by your close proximity to the issue .. i.e. since you're constantly up to your neck in these folks .. it's all you see .. magnifying the issue somewhat ..

how long before you'd say the war starts ??
 

JN responded so quick that my deletion (minutes after I wrote it) didn't take! Lol.

Levinson et. al. DID discuss why they think there is an individual right to own firearms. They did long before Heller. This blog is "educating" about the ruling if anything a bit tediously. The pragmatic benefit is not lost by such information.

They, unlike Scalia, don't want us to "just forget about" such things, since "it happened a long time ago" etc. They didn't use per curiam rulings w/o their names, twist the law for one case, only apply it to that case, etc.

As to what "gun nuts" etc. think, the point here is what Heller said. Heller allows many regulations. It cuts the legs underneath those with more 'extremist' views when Thomas and Scalia join such a ruling.

"Regulate" not "ban" basic arms. As to tasers, many want to ban them too btw. The Stevens side would likely not support some constitutional right to own tasers.

I have read various sources on the history of the 2A, and simply put, by the mid-19th Century (if not long before), it was understood that it protected some sort of individual right (esp. as seen thru the lens of the 14A).

Fine if you disagree, but this is accepted by people across the spectrum, including those whose legal and historical expertise matter much more than mine. It simply is not comparable to Bush v. Gore "law."

As to the ruling aiding and abetting the crazies, which seems to be your concern, as noted, it hurt their cause by having the likes of Thomas agreeing to loads of regulations. If that won't matter, they will act how they will act anyway, with or without a ruling that seriously hurts their case.

Or, I might not get it.
 

Just goes to show that legal writing is about argumentation, not about belief. And why go back to the ridiculous argument about standing in Newdow when you can go back to the ridiculous argument about self-executing treaties in Medellin?
 

"tray" --

All very well said --

"It's a thorny problem. Law professors actually have quite a bit of influence on this area of the law; if it wasn't for all the scholarship that's been done on the Second Amendment, Heller surely wouldn't have come out the way it did."

Much of it hasn't been legitimate scholarship. In my view, legitimate scholarship is open-ended -- it doesn't, unlike theology, begin with a premise to be proven, which rarely does anything but leave out all differing views, thus arrives at the "proof" all along intended, but instead begins with a question to be explored, with truth being the concern, based upon all relevant information.

There is a law professor -- Constitutional law is not on his resume, and he doesn't teach it -- who has long pushed the NRA's "individual right" lie, and I heard him in "debate" with another on the issue on NPR. (The other was from Cato Institute, to give the degree of "liberality" of the participants.)

The problem with his "presentation" is that he unfailingly writes it as equivalent of a legal brief: he includes only that which supports his view -- even though even then very little of it is of any legal authority -- and leaves out all the rest. (Very little is of legal authority because the legal authority is against him. He never makes reference, even in mere words, to the debates by the framers of the Bill of Rights -- those who actually wrote it, in Congress.)

Having read colonial law, from 1620 New-Plimoth on -- legal history to and through Constitution and Bill of Rights -- I could see the gaps in his presentation -- his "scholarship". The gaps were/are exactly where the disproofs of his "argument" were/are.

The problem, hthen -- and probably intended -- is that gun-nuts don't tend to be literate, let alone in law, so they had no clue that they were reading a deliberately one-sided presentation of the "facts," and little if any of that of any legal authority or weight.

Much of the so-called "Second Amendment scholarship" has been exactly that -- atrocious -- because funded by the industry via the NRA. In short, it is simply NOT scholarship. I suppose there are those who look forward to the establishment of the "John Yoo Professorship in Torture" chair at some university, though it may have to wait for the controversy to die down before someone or some industry-entity steps forward with the funding.

"Say a bunch of Republican law professors decide that overturning Roe would hurt the Republicans, so they do all this originalist work attempting to persuade Scalia and Thomas that the due process clause of the Fourteenth Amendment was actually intended to include some kind of right to bodily autonomy. Even if we assume that law professors are never this conniving, their desire to see Roe upheld could bias their scholarship. Of course, ideological bias probably plays a role in most legal scholarship, but there's something a little more unseemly about, to continue the example, writing that Roe was right because you want to see Republicans win elections than writing that Roe was right because you're pro-choice."

Agreed 100 per cent. As for ideological biasinherent: with genuine scholarship, that most likely begins and ends with choice of subject. If one is presenting the actual "law" -- all sides, not only that one prefers -- then one can control for and even eliminate the bias.
 

"Jkat" --

"thanks for the expansion JN ..and yeah .. i have heard of all those things .. people .. .orgs..etc .. i was raised in the south .. in the midst of a bunch of unreconstructed rebels .. most of whom grw up and joined the military at one point or another ..

"i think it's easy to confuse bluster with intent .."

And it's easy for one of their chorts to confuse bluster for intent. And being as many are essentially fanatics wanting to shoot something -- "You go first" the only apparent restraint -- they are ready to do that. Especially when one mixes in the ahistorical fantasies of "patriots," the paranoid anti-gum'mint conspirabunk, the racism, etc.

"i'm really not too worried about the montana militiamen invading DC tomorrow though .."

Most/all were all rounded up, tried, convicted and imprisoned, last I knew.

"your perception of the issue may be influenced by your close proximity to the issue .. i.e. since you're constantly up to your neck in these folks .. it's all you see .. magnifying the issue somewhat .."

I wish I could believe that. Try posting the Militia Clauses from the Constitution (Art. 1., s. 8., cl. 15 and 16) in one of their fora and watch how fast they are deleted. All in "defense of" the Constitution, of course.

Try posting the Continental Congress' "The Tory Act," in which is written, [I]t is the opinion of this Congress that they [Tories] be disarmed," a watch how fast that is deleted -- all because they are "patriots" 100 per cent sympatico with the Founders/Framers. And how swiftly one "earns" the label "Lib'rul-So-shul-ist-Commie".

Hell, they go nuts and call one that string of intended-epithets if one posts a verbatim quote of a taxation clause from one of the state constitutions of 1776-77.

"how long before you'd say the war starts ??"

Has the Bush criminal enterpirse, and the so-called "conservative movement," been attempting to abolish Social Security for essentially forever? (The Federalist Society for years -- I've not checked lately -- has on its website a central document titled, "How to Repeal the New Deal".) Are these fanatics willing to start illegal wars in order to drain money out of the economy, cut taxes during "wartime," and continue to smear Democrats as wanting to raise taxes? Are they putting the entire economy at risk in order to accomplish their ends -- the elimination of all "so-shul-ist" programs? The elimination of all civil rights laws?

How far will the go?

If the economy were to collapse, there would be shoot-outs in the street over at minimum gasoline.
 

"Joe"

"Levinson et. al. DID discuss why they think there is an individual right to own firearms."

I haven't said there isn't an individual right to own firearms -- yet again the wingnut propaganda has poisoned the discourse, the assumption being that if one is for gun-control/regulation then one is against gun ownership.

There is an individual right to own firearms -- but the Second Amendment, which is specifically and only about WELL REGULATED MILITIA is IRRELEVANT to that issue.

I do wish the professors who love to sit around theorizing in the abstract VACCUUM about that right and the Second Amendment would put aside all the law journals, and other non-law, and actually READ THE DEBATES OF THOSE WHO ACTUALLY WROTE THE AMENDMENT.

As things stand, however, it clearly appears that it really doesn't matter to them what the "law" is, only that it can be anything whatsoever one can make it be if one first throws out all the standards. Which is how we've got to where we are in this country.

"They did long before Heller. This blog is "educating" about the ruling if anything a bit tediously. The pragmatic benefit is not lost by such information."

It remains the fact: there has all along been militia, all along governed UNDER law; and there has all along been the individual right to own guns. The two are ON THEIR FACE not the same.

The members of the militia were NOT simply those "patriots" who happened to SHOW UP with their guns. The members of the militia were FORMALLY ENLISTED, required to TRAIN, and REQUIRED to "show up" or suffer penalties for not "showing up". Those penalties were stipulated IN LAW, the LAW being the "Militia Act". The current Title 10 simply CONTINUES the long and consistent tradition of law which were originally captioned "Militia Act".

And they existed in the colonies for CENTURIES before the "revolution," and were mainted by the Founders/Framers.

All along, the governor -- colony or state -- was the HEAD of the militia. And as colonies grew, and thus were divided into such as counties, and a militia was required by each county, the heads were the town selectmen, or the local judge -- SOME PUBLIC official who could be held accountable.

That stuff is so obvious it is amazing to me that so few "get" it.

During the major Injun war in eastern MA-Bay during the 1670s there was a point at which the colonists continued to lose*. There was a (GASP!) draft -- as in "conscription," or in the Founders' term, "impressment" -- to which not all selected citizens were willing to submit. If a draft-dodger were caught, he was tried, and if convicted, fined. The fine was used by the community/colony to buy guns for the defense of the community/colony.
_____

*Christianized Injuns then took the colonial leadership aside and said, "Yo, let me 'splain some stuff to ya. Hide behind trees and bushes in AMBUSH!" THEN the colonists began winning.
_____

In other instances, when the threat was sufficient, and there was a (perceived) shortage of guns, PRIVATE arms were taken BY THE COMMUNITY for defense OF THE COMMUNITY. Even the Founders/Framers themselves did so, as I've detailed in this or another thread on the issue.

It is not controversial: when the rights of the community -- to, say, survive -- are in conlict with those of the individual, the LATTER, not the FORMER, will give way. Thus one sees in New-Plimoth Colony law the routine regulation of alcohol, tobacco, and shot & powder. Then a law banning sale of alcohol to Injuns. Huh? why?

Then banning of sales of shot & powder to Injuns.

Huh? why?

If one steps out of the law at that time one finds oneself in the midst of an Injun war.

And in MA-Bay law, prohibiting blacksmiths from repairing Injun's guns.

Yes: the exchange, by barter or sale, between PRIVATE individuals and -- in these examples -- Injuns was regulated both routinely and as a protection of public safety.

There were even statutes prohibiting the shooting of guns near highways -- people on the highways tended to get hit by "stray" bullets.

And prohibitions against PRIVATE gun owners shooting at night, because the safety of the COMMUNITY included statutes which stipulated gun shots -- how many -- as SIGNALS of possible attack on the COMMUNITY.

What most surprised when I read all that law is how familiar all the regulatin' was -- and it didn't change from 1620 to, during, and after, the "revolution"; or to, through, and after ratification of Articles, and then ratification of Constitution and Bill of Rights.

There has all along been -- even under the theocratic tyranny in MA-Bay -- individual ownership of guns. Making claims -- unfounded at that -- about the Founders/Framers position on private ownership is an exceedingly narrow slice out of the long and consistent regulation of dangerous substances and objects by communities for their own safety. And that includes the communities of the Founders/Framers.

Parallel, but separate, is militia law, which has existed since the outset, and is at core the same today as it was then; regardless whether the gov't was a "tyranny," the militia was not a free-roaming armed band of "citizen volunteers" "defending against" their own gov't. The whole point of militia law, in essence, is to protect the CIVILIAN gov't from armed overthrow. Thus "well regulated" doesn't mean "being able to march in a straight line"; it means UNDER LAW.

Individual right? When the Founders/Framers themselves saw a shortage of guns with which to fight their "revolution," they seized those of private citizens and put them to use in "the cause" by providing them to the Continental Army, the "local" well regulated militia, or others (see "Committees of Safety and Supply" as example) AUTHORIZED to play an ARMED role in "the cause".

"They, unlike Scalia, don't want us to "just forget about" such things, since "it happened a long time ago" etc. They didn't use per curiam rulings w/o their names, twist the law for one case, only apply it to that case, etc."

It reamins the fact that the Second Amendment has nothing whatever to do with "individual" anything -- and that has been the fact since the Congress voted DOWN the "conscientious obejction" clause, which read:

"no person religiously scrupulous of [against] bearing arms, shall be compelled [INvoluntary] to render military service [in the militia] in person."

"As to what "gun nuts" etc. think, the point here is what Heller said. Heller allows many regulations. It cuts the legs underneath those with more 'extremist' views when Thomas and Scalia join such a ruling."

It is the camel's nose in the tent.

""Regulate" not "ban" basic arms."

AGAIN: even the Founders/Framers BANNED possession of guns, by specific persons -- and that wasn't limited to "felons, and the mentally ill".

"As to tasers, many want to ban them too btw."

As they should be, if they cannot be made safe as NON-letahl weapons.

"The Stevens side would likely not support some constitutional right to own tasers."

The point is this: the Second Amendment has NOTHING WHATEVER TO DO WITH "INDIVIDUAL ANYTHING," not the relative or respective positions of those who FALSELY found OTHERWISE.

"I have read various sources on the history of the 2A, and simply put, by the mid-19th Century (if not long before), it was understood that it protected some sort of individual right (esp. as seen thru the lens of the 14A)."

Nonsense. The Second Amendment was intended to enaure the STATES that they could keep their militia. It was a STATE RIGHT from the outset; it needs no "incorporation" through the 14th.

It is the NRA who pushes the nonsense to which you refer. READ THE DEBATES BY THE WHO WROTE THE AMENDMENT. THOSE are LEGAL AUTHORITY.

"Fine if you disagree, but this is accepted by people across the spectrum, including those whose legal and historical expertise matter much more than mine."

You've seen mine, and it exceeds that of many who hold themselves out as "constitutional law scholars" and even professors. Have they read the debates, which occurred in the first Congress, of those who WROTE the Bill of Rights/Second? Doing so is so basic one should not have to ask that question.

"It simply is not comparable to Bush v. Gore "law.""

Both decisions are about reaching a previously-decided conclusion; the only problem was the intellectually dishonest workings out of arriving at the conclusion.

"As to the ruling aiding and abetting the crazies, which seems to be your concern, as noted, it hurt their cause by having the likes of Thomas agreeing to loads of regulations."

They had no real choice but to agree that the Second does not "protect" FROM the rule of law -- unless they were to ignore the Militia Clauses in the body of the Constitution -- with the "Militia Act"/Title 10 staring them in the face.

What they DIDN'T do is READ THE DEBATES Of THOSE WHO WROTE THE AMENDMENT.

"If that won't matter, they will act how they will act anyway, with or without a ruling that seriously hurts their case."

And there we have OK City: profoundly wrong Tim McVeigh murdered over 100 people at the behest of the false propaganda spewed by the NRA.

"Or, I might not get it."

Set aside what you've been told about the 19th century and the 14th Amendment -- as a beginning. THEN read the debates of the Bill of Rights of those who WROTE it.

Creating the Bill of Rights: The Documentary Record from the First Federal Congress (Baltimore: Johns Hopkins, 1991), Ed. by Veit, et al.

The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties (Madison, WI: Madison House, 1992), Ed. by Conley and Kaminski.

The Complete Bill of Rights: The Drafts, Debates, Sources, & Origins (NY: Oxford, 1994), Ed. by Neil H. Cogan.

And for some of the essential basics not merely overlooked but unknown to so many "constitutional law experts" and "scholars":

The Birth of the Bill of Rights 1776-1791 (numerous publishers -- in print), Robert Allen Rutland.
 

As to JN's 'nonsense'

Several state supreme courts in the early 18A recognized it [2A provision] as an individual right as did key framers of the 14A. As did others earlier on. Lots of belief in "nonsense." It simply is not a clear question.

Putting aside what was thought in 1789, and only for the sake of argument, the understanding changed to some degree. This is also true of the 1A etc. This is my key beef with the overfocus of 1789 in Heller.

Oh, and Heller allows local gov'ts to deprive people who aren't trained, don't have proper licenses, and also many types of guns. And, in many areas too. Of course, 1789 and today is quite different, so what they did then only takes us so far anyways.

As to depriving all people of all guns in 1789, I would surprised if that was standard practice, and if it was, local laws also limited other rights more than we allow now too.

I can list various sources that support my side too. As to only allowing non-lethal weapons, nice trick. A knife is lethal (and less useful than a gun in various ways). A common law right to self defense of ancient origin includes some measures that might be lethal.

But, my bottom line, is even if I'm wrong, your over the top tone doesn't match the divided question.
 

Anyway, as addressed in another post on this site and elsewhere, some right to own a firearm at home is not limited to the 2A.

The 9A and 14A also, quite aside from the 14A, provides a good source for regulated use of firearms. And, I think they would be better sources for Heller, though the end result would be basically the same.

Best.
 

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Sandy:

In one of my other replies, I mentioned the Newdow decision in 2004, where I both a) thought that the Supreme Court fabricated a “preposterous” standing doctrine to avoid affirming the clearly correct Ninth Circuit decision invalidating “under God” in the Pledge of Allegiance; and b) was immensely relieved that the Court had avoided a decision that would have created a tremendous backlash that would undoubtedly have helped Republicans and hurt Democrats.


Why would an SC decision “affirming the clearly correct Ninth Circuit decision invalidating "under God" in the Pledge of Allegiance, have “undoubtedly helped Republicans and hurt Democrats?”

Newdow himself was the driving force behind the litigation. Whatever institutional support he had, it didn’t include the Democratic Party, or any subsection thereof. When the 9th Circuit decision came down, prominent Democrats denounced it as vehemently as their Republican counterparts, and with arguments no less extra-legal and demagogic. If the Democratic Party had ever officially associated itself with the proposition that the Pledge should be revised, it has escaped my attention. Why or how the an affirmation by the SC of the 9th Circuit decision could be blamed on the Democratic Party, let alone “undoubtedly” hurt the Dems and helped the GOP is not apparent, at least not to me.

All the best,

Tom Doyle
 

At a logical level, Tom Doyle is no doubt correct. My analysis is based on the fact that the justices voting to uphold the Ninth Circuit (in this counterfactual) would have been tarred as "secular liberals" likely to be appointed by Democrats (as Ginsburg and Breyer were). Also, a Democratic candidate would have alienated at least some of his/her base by denouncing such a clearly correct decision and explaining why it's all right for the state to push a controversial theology on impressionable students.
 

Also, let's not forget the "energize the base" effect of the Constitutional Amendment which the Right would have introduced to permit the use of God (not just in the flag salute but in other ways also). Since that Amendment would likely have passed Congress, there may well have been increased turnout in many states in order to affect the state legislatures which would vote on ratification.
 

"Joe" --

"As to JN's 'nonsense'

"Several state supreme courts in the early 18A recognized it [2A provision] as an individual right as did key framers of the 14A."

Which controls? US Constitution/SC, or state courts?

As for the 14th Amendment: you'll have to point th what you're getting at. The ost you seem to be saying is that there were those involved with framing the 14th Amendment who didn't read the debates either -- sorta like "Originialist" Scalia, and Clarence Thomas.

"As did others earlier on."

I still see no names.

"Lots of belief in "nonsense.""

That a significant number of any generation will believe nonsense is not news.

"It simply is not a clear question."

It isn't if you dismiss out of hand the words of those who WROTE the Amendment in preference for those unnamed who said something or other about the Second Amendment while near the room in which the 14th Amendment was allegedly framed.

"Putting aside what was thought in 1789, and only for the sake of argument, the understanding changed to some degree."

"[O]nly for the sake of argument"? Okay: now you've sufficiently clarified. As for sufficient distinguishing . . .

"This is also true of the 1A etc. This is my key beef with the overfocus of 1789 in Heller."

Right: who would have though that "Originalist" Scalia would focus on 1789, but not manage to find his way to the debates of those who wrote the Second.

"Oh, and Heller allows local gov'ts to deprive people who aren't trained, don't have proper licenses, and also many types of guns."

Good. Then the same result could have been arrived at outside the Second Amendment. But the result was only part of the goal: the other was to insert an "individual" right where none had ever been before.

"And, in many areas too. Of course, 1789 and today is quite different, so what they did then only takes us so far anyways."

What they did in 1789 had been done for centuries. Some things don't change: guns killed then, they kill now. Socieities acted then to protect public safety. They act now to protect public safety -- when they have their heads on straight.

"As to depriving all people of all guns in 1789, I would surprised if that was standard practice, and if it was, local laws also limited other rights more than we allow now too."

That isn't waht I said, is it? The ROUTINE practice was gun-control regulation. And those laws covered the range from legitimating ownership (the colony gov'ts tended to know where every gun in tow was located), to confiscation, to prohibition. All of those are normal in various areas of law, not only as concerns guns. Same is done with dangerous substances, such as chemicals.

There is simply nothing new under the sun as means and degrees of protecting public safey -- and stability of laws and gov't.

"I can list various sources that support my side too."

In keeping with Heller? Or at odds with it?

And, no: I don't think you'll find in the debates of those who WROTE the Second an "other side" which supports your "view". IT ISN'T THERE. The Framers were concerned with standing armies as threats to freedom and free gov't. Their alternative, after lengthy -- extensive -- debate -- which continued from the Constitutional Convention -- was the militia.

In NONE of that debate is there any mention or discussion of an "individual right" -- because the issue was protecting public safety and the nation. And the Constitution and rule of law.

The private, individual right was a LOCAL issue, as the VT constitution -- adopted in 1776-77 -- demonstrates: it has a Militia Clause, which incorporates the phrase, "right of the PEOPLE to keep and bear arms"; and a wholly separate clause securing the right of the private individual to "fish and fowl" -- which DOES NOT incoporate the phrase, "right of the PEOPLE to keep and bear arms".

You have "other sources" that support your "side"? You cite NONE. And I'll bet ZERO of them have legal authority.

"As to only allowing non-lethal weapons, nice trick. A knife is lethal (and less useful than a gun in various ways)."

Right: there are knicves -- which have the advantage of not needing to be reloaded -- and there are guns.

Let's imagine they are fire, and that we want to put out that fire: let's pour GASOLINE on it.

"A common law right to self defense of ancient origin includes some measures that might be lethal."

The "common law" right of self-defense is not premised upon what kind of weapons can or cannot be used in self-defense, or whether they are lethal. It is premised upon "proportionality" -- one is limited to no more than the amount of force necessary to one's self-defense. If someone breaks into your house, you yell, "I've got a gun!" and the intruder turns and FLEES, you do NOT have the right to shoot him in the back, as at moment he turned and ran he CEASED being a threat.

Why is the right of self-defense LIMITED? For a very simple and plain reason that gun-nuts always ignore: the OTHER person ALSO has rights. Add in that the "right" of self-defense is not a license to take the law into one's own hands.

"But, my bottom line, is even if I'm wrong, your over the top tone doesn't match the divided question."

The debates of those who WROTE the Second Amendment is NOT a "divided question". It is only a "divided question" since about 40 years ago, when the NRA started asserting its Second Amendment lie. Before then, there was never any confusion about what the Second Amendment was about, or how intended. And there wasn't a rejection of the debates in order to IGNORE the fact that there is NOTHING in the Second, debates or otherwise, concerning PRIVATE anything.

You need't take my word for it: research colony law from 1620ish forward, to any point you want: you won't find any insteance, let alone any legalization, of "militia" outside the rule of law. One either FORMALLY ENLISTED, or one was NOT a member of the legal militia.

Nor will you find any point in time, uincluding the "revolution," when there was no gun-control law, no regulation of the private, individual right. PUBLIC SAFETY, and stability of laws and gov't, OUTWEIGH that individual right.

Begin here:

The Compact with the Charter and Laws of the Colony of New Plymouth: Together with the Charter of the Council at Plymouth, and an Appendix, Containing the Articles of Confederation of the United Colonies of New England, and Other Valuable Documents (Boston: Dutton and Wentworth, Printers to the State, 1836; Buffalo, NY: William S. Hein Company, 1986), Williwm Brigham.

"The Articles of Confederation of the United Colonies of New England" are a major clue on the points I've been making.

Or you can always go to the MA-Bay Colony laws, and Records, beginning circa 1628, and begin reading. You'll almost immediately find establishment of the "Ancient and Honorable Artillery Company," and won't read very far before encountering regulation of such things as alcohol, tobacco, and firearms.

Or jump ahead to the colony laws leading into and during -- and following -- the "revolution" as concerns regulation and governance of the militia, and regulation of private ownership of weapons.

It isn't complicated: there has never been a society which was so "free" -- or stupidly irresponsible -- that it didn't regulate threats to its own survival, or to public safety.

"Over the top" about Heller? What is not over the top about ignorning the words of those who WROTE the Amendment?
 

"Joe" --

"Anyway, as addressed in another post on this site and elsewhere, some right to own a firearm at home is not limited to the 2A."

And as I've made clear -- simply talking around that fact doesn't nullify it -- "some right to own a firearm" is EXCLUSIVE to the Second Amendment, as the Second is EXCLUSIVELY about MILITIA.

Are you allowed to have a militia? In your home?

"The 9A and 14A also, quite aside from the 14A, provides a good source for regulated use of firearms."

I have no idea where you get that idea, as I don't see any mention of guns in either. What is the paranoia that urges one to seek a Federal right when it was left as a local matter by those who framed the Constitution and Bill of Rights?

"And, I think they would be better sources for Heller, though the end result would be basically the same."

The Second isn't the correct source. Neither are any of the other Amendments, because the matter was left as a LOCAL issue by the framers. That's why it is expressly stipulated in the VT constitution.

Ultimately, I don't understand the fetish for finding in the Federal Constitution a protection of a private, individual right which has not in fact been theatened by anything other than the ginned-up politics of paranoia spewed by the gun industry-front NRA. There has been gun-regulation, without letup, for as long as there have been guns; there is gun-regulation now; and there will always be gun-regulation. Screaming hysterically about boogeymen which never show up in defense of a right that isn't threatened, and as excuse to have so many guns they're coming out of one's ears, gets real old real fast.
 

Ok, JN, I get it: You're not 's sock puppet, you just share his mania: You're not just right, you're so obviously right that it's insane to disagree with you.

Lotta insane people in this world, happily, some of them helped write the Constitution. ;)
 

"Brett" --

"Ok, JN, I get it: You're not 's sock puppet, you just share his mania: You're not just right, you're so obviously right that it's insane to disagree with you."

It must be so: disagreeing with you makes one insane, becaues you're even more obviously right than I.

But you needn't take my word for any of this: you can read the debates for yourself and ask yourself who's insane: you, or the debaters.

Or you can take the word of the non-official non-law-making private non-profit special interest gun industry-front NRA.

"Lotta insane people in this world, happily, some of them helped write the Constitution. ;)"

I have no idea what that is intended to mean.

Meanwhile, I've noted that the SC didn't only lie an "individual" right into the Second, it also injected into it the same regulatory parameters as had already existed outside the Second. The very regulations the gun-nuts wanted to eliminate altogether.

It's my hunch Scalia is being incrementally insane in this instance.

Elect Papoon! He's not insane! -- Firesign Theatre
 

Jkat:

i'm really not too worried about the montana militiamen invading DC tomorrow though ..

Oh, they have some formidable obstacles to actually taking over the gummint (as they'd like and as they fantasise), but they can cause a lot of difficulty along the way. See, e.g., the above named McVeigh and Nichols, that little contretemps in the 1860s, the rustlings of such in the 1950s, and such.... As Joe Conason said, "It Can Happen Here" and even if not successful, hardly a beatific prospect.

Cheers,
 

Joe:

Several state supreme courts in the early 18A recognized it [2A provision] as an individual right....

What do state courts have to do with the price of tea in Sri Lanka?

Cheers,
 

Brett:

"sock puppet" used on a Heller thread should, of course, bring to the fore (particularly in the context of "scholarship") the one and only proven "sock puppet" around, that is to say "Mary Rosh" (a/k/a "John Lott"). If I were you, I wouldn't be bandying that phrase around; it just emphasises the quality of the "scholarship" (and the level of honesty) on the respective sides here.

Cheers,
 

Tom Doyle:

Newdow himself was the driving force behind the litigation. Whatever institutional support he had, it didn’t include the Democratic Party, or any subsection thereof. When the 9th Circuit decision came down, prominent Democrats denounced it as vehemently as their Republican counterparts, and with arguments no less extra-legal and demagogic. If the Democratic Party had ever officially associated itself with the proposition that the Pledge should be revised, it has escaped my attention. Why or how the an affirmation by the SC of the 9th Circuit decision could be blamed on the Democratic Party, let alone “undoubtedly” hurt the Dems and helped the GOP is not apparent, at least not to me.

Tom. Tom. You misnderstand the nature of the RW "Mighty Wurlitzer" attack machine. Silver and Bronze Medal recipient John Kerry was slimed as a coward and shirker (and accused of shooting himself to avoid combat), while Dubya's esablished AWOL status was overlooked, and Bronze Medal Max Cleland was branded as friends of Terraists and an appeaser by his "trick knee" opponent Saxby Chambliss. This all worked with the lizard brains and rubes, enough to make a difference. I hoep they're getting smarter, but the SCLM is not helping in this....

Cheers,
 

"What do state courts have to do with the price of tea in Sri Lanka?"

It provides insight in what was understood at the time as a right of the people and its contours including the right to own firearms for self-defense. Determining, e.g., if "x" was a right retained by the people per the 9A could entail seeing what state courts recognized.