A Win in Chicago vs McDonald

[LarryH]

Note the weasel-words in Kagan's response:

Kagan responded that "once a court decides a case as it did, it's binding precedent." And she said judges must respect a precedent unless it proves unworkable or new facts emerge that would change the circumstances of a case.

[bdickens]

What amazes me is that there are four illiterate people sitting on the Supreme Court.

[A-R]

Justice Thomas' concurring opinion is a splendid read for those "court geeks" among you. He writes extensively of the history of the 2A and its impact on black citizens. In the South after the Civil War, blacks, both slave and free, were denied the right to carry or even own firearms. The result was slaughter by groups supported by the states and enabled by the states' refusal to do anything about the slaughter. Thousands of blacks were murdered, and the murderers committed their deeds with the full support of the state. In that context, arming blacks would not only have been for self defense but for resistance against a government that refused to recognize their inalienable rights.

Cruikshank’s holding that blacks could look only to state governments for protection of their right to keep and bear arms enabled private forces, often with the assistance of local governments, to subjugate the newly freed slaves and their descendants through a wave of private violence designed to drive blacks from the voting booth and force them into peonage, an effective return to slavery. Without federal enforcement of the inalienable right to keep and bear arms, these militias and mobs were tragically successful in waging a campaign of terror against the very people the Fourteenth Amendment had just made citizens.
Take, for example, the Hamburg Massacre of 1876.There, a white citizen militia sought out and murdered a troop of black militiamen for no other reason than that they had dared to conduct a celebratory Fourth of July parade through their mostly black town. The white militia commander, “Pitchfork” Ben Tillman, later described this massacre with pride: “[T]he leading white men of Edgefield” had decided “to seize the first opportunity that the negroes might offer them to provoke a riot and teach the negroes a lesson by having the whites demonstrate their superiority by killing as many of them as was justifiable.” S. Kantrowitz, Ben Tillman & the Reconstruction of White Supremacy 67 (2000) (ellipsis, brackets, and internal quotation marks omitted). None of the perpetrators of the Hamburg murders was ever brought to justice.22

In reading that I had to wonder, how many dead black Americans was "justifiable"?

Tillman went on to not only become the longtime Governor of South Carolina but also a United States Senator. (Shades of the recently-departed Robert Byrd!)

Justice Thomas' exposition makes it quite clear that the RKBA not only allows home defense but is a necessary (and acceptable) prophylactic against abusive governments.

Actually just finished reading this paper entitled "The Second Amendment: Toward an Afro-Americanist Reconsideration", which I believe Thomas cited in his concurring opinion in McDonald. It's a worthwhile read and very interesting history.

http://www.constitution.org/2ll/2ndschol/12cd-r.pdf" onclick="window.open(this.href);return false;

[joe817]

Actually just finished reading this paper entitled "The Second Amendment: Toward an Afro-Americanist Reconsideration", which I believe Thomas cited in his concurring opinion in McDonald. It's a worthwhile read and very interesting history.

http://www.constitution.org/2ll/2ndschol/12cd-r.pdf" onclick="window.open(this.href);return false;

Phew. It's certainly a worthwhile read austinrealtor, but it's taken me one full hour just to get through the introduction(with family interruptions, of course). I've bookmarked it. Thanks for sharing. It's a fascinating read.

[LarryH]

Thanks for the warning on the length, Joe.

I saved the pdf to my hard drive for later reading.

[baldeagle]

Actually just finished reading this paper entitled "The Second Amendment: Toward an Afro-Americanist Reconsideration", which I believe Thomas cited in his concurring opinion in McDonald. It's a worthwhile read and very interesting history.

http://www.constitution.org/2ll/2ndschol/12cd-r.pdf" onclick="window.open(this.href);return false;

Thanks for the link. I just finished reading it. In my opinion the paper makes a very strong case that one of the purposes of the 2A is to protect the citizens from their own government or their own government's lack of action in the face of predation against them. Although it doesn't address it in detail, I think it also makes a strong argument that the purpose of the 14A was to apply the bill of rights, including the 2A, to the states through the privileges and immunities clause. Further, it points out that the Court has stedfastly ignored that argument because of racial reasons.

[A-R]

if y'all enjoyed that read, you'll LOVE Justice Thomas' concurring opinion in McDonald case. It is not only a scathing rebuke of the precedent that originally said 2A does NOT apply to the states (the Cruikshank ruling), but also of the horrible aftermath of that decision which allowed for nearly 100 years the subjugation of black Americans who could only look to the racist state government for protection (usually withheld) of their RKBA. He lays the blame for civil rights abuses against blacks right up to the Civil Rights Act of 1968 clearly at the Cruikshank ruling and is the only voice of the 9 justices who forcefully calls for overturning not just that precedent, but also restoring the original meaning of the Privileges or Immunities clause of the Fourteenth Amendment (which the plurality in McDonald did not endorse, instead going the "safe route" of again using the Due Process clause). About this, Thomas writes:

All of this is a legal fiction.

Here's a great link to the entire McDonald opinion, two concurrences, and two dissents - all in HTML form that you can cut-n-paste from.

http://www.law.cornell.edu/supct/html/08-1521.ZS.html" onclick="window.open(this.href);return false;

Also read up on the Colfax Massacre that sparked the Cruikshank case ... absolute travesty that the convictions of the men responsible were overturned by the SCOTUS ruling ..... http://en.wikipedia.org/wiki/Colfax_Massacre" onclick="window.open(this.href);return false;

The publicity about the Colfax massacre and Supreme Court ruling encouraged the growth of white paramilitary organizations

[Dutch]

Choice pieces from Justice Stevens' dissenting opinion:
http://www.leagle.com/unsecure/page.htm ... 100628006t" onclick="window.open(this.href);return false;

First, firearms have a fundamentally ambivalent relationship to liberty. Just as they can help homeowners defend their families and property from intruders, they can help thugs and insurrectionists murder innocent victims. The threat that firearms will be misused is far from hypothetical, for gun crime has devastated many of our communities.

The practical impact of various gun-control measures may be highly controversial, but this basic insight should not be. The idea that deadly weapons pose a distinctive threat to the social order—and that reasonable restrictions on their usage therefore impose an acceptable burden on one's personal liberty—is as old as the Republic. As THE CHIEF JUSTICE observed just the other day, it is a foundational premise of modern government that the State holds a monopoly on legitimate violence: "A basic step in organizing a civilized society is to take [the] sword out of private hands and turn it over to an organized government, acting on behalf of all the people." Robertson v. United States ex rel. Watson, ante, at ___ (slip op., at 11) (dissenting opinion).

I do not doubt for a moment that many Americans feel deeply passionate about firearms, and see them as critical to their way of life as well as to their security. Nevertheless, it does not appear to be the case that the ability to own a handgun, or any particular type of firearm, is critical to leading a life of autonomy, dignity, or political equality: The marketplace offers many tools for self-defense, even if they are imperfect substitutes...

The handgun is itself a tool for crime; the handgun's bullets are the violence.

the Second Amendment differs in kind from the Amendments that surround it, with the consequence that its inclusion in the Bill of Rights is not merely unhelpful but positively harmful to petitioners' claim. Generally, the inclusion of a liberty interest in the Bill of Rights points toward the conclusion that it is of fundamental significance and ought to be enforceable against the States. But the Second Amendment plays a peculiar role within the Bill, as announced by its peculiar opening clause.[ 39 ] Even accepting the Heller Court's view that the Amendment protects an individual right to keep and bear arms disconnected from militia service, it remains undeniable that "the purpose for which the right was codified" was "to prevent elimination of the militia." Heller, 554 U. S., at ___ (slip op., at 26); see also United States v. Miller, 307 U. S. 174, 178 (1939) (Second Amendment was enacted "[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces"). It was the States, not private persons, on whose immediate behalf the Second Amendment was adopted. Notwithstanding the Heller Court's efforts to write the Second Amendment's preamble out of the Constitution, the Amendment still serves the structural function of protecting the States from encroachment by an overreaching Federal Government.

This history of intrusive regulation is not surprising given that the very text of the Second Amendment calls out for regulation,...

Finally, even apart from the States' long history of firearms regulation and its location at the core of their police powers, this is a quintessential area in which federalism ought to be allowed to flourish without this Court's meddling. Whether or not we can assert a plausible constitutional basis for intervening, there are powerful reasons why we should not do so.

[The Annoyed Man]

the Second Amendment differs in kind from the Amendments that surround it, with the consequence that its inclusion in the Bill of Rights is not merely unhelpful but positively harmful to petitioners' claim.

Is he high? Is he postulating that the RKBA would be better served by not having been included in the BOR? Does he seriously believe that if it had not, we would enjoy more gun freedom today and not less?

Yeah... he must be high.

[Dutch]

the Second Amendment differs in kind from the Amendments that surround it, with the consequence that its inclusion in the Bill of Rights is not merely unhelpful but positively harmful to petitioners' claim.

Is he high? Is he postulating that the RKBA would be better served by not having been included in the BOR? Does he seriously believe that if it had not, we would enjoy more gun freedom today and not less?

Yeah... he must be high.

He is just backing up his claim from the Heller decision that the preamble to the second amendment is more important than the rest of it. "A well regulated Militia, being necessary to the security of a free State"

His assertion is that this should mean that in the Federalist system, a State cannot be stripped of its right to form a well regulated militia. He does not believe the right to bear arms is an individual right.

This is important because the 14th amendment makes the the other first 8 bill of rights applicable to the states "inclusion doctrine". The question in this case is whether or not the 2nd amendment applies to the states or do the states have the right to regulate the ownership of guns.

He basically says that the word "regulated" in the second amendment is actually harmful evidence against the petitioner's claim.

[The Annoyed Man]

the Second Amendment differs in kind from the Amendments that surround it, with the consequence that its inclusion in the Bill of Rights is not merely unhelpful but positively harmful to petitioners' claim.

Is he high? Is he postulating that the RKBA would be better served by not having been included in the BOR? Does he seriously believe that if it had not, we would enjoy more gun freedom today and not less?

Yeah... he must be high.

He is just backing up his claim from the Heller decision that the preamble to the second amendment is more important than the rest of it. "A well regulated Militia, being necessary to the security of a free State"

His assertion is that this should mean that in the Federalist system, a State cannot be stripped of its right to form a well regulated militia. He does not believe the right to bear arms is an individual right.

This is important because the 14th amendment makes the the other first 8 bill of rights applicable to the states "inclusion doctrine". The question in this case is whether or not the 2nd amendment applies to the states or do the states have the right to regulate the ownership of guns.

He basically says that the word "regulated" in the second amendment is actually harmful evidence against the petitioner's claim.

Unfortunately for his claim, if he's going to make statements about the Founders' intent, then he has to assign their words the exact same meaning they had when the Founders used those words. In the context of the Founders' use and understanding of the English language in the late 18th century, "regulated" had a meaning more akin to our use of "standardized" today, rather than "controlled;" and the intent was to make sure that the militia could be standardized as to choice of weaponry - which has the subtext that the citizenry were expected to be able to purchase and keep military grade weapons in the event the militia was called up. Where is my M16?

I read an interesting book a year or so ago called The Founders' Second Amendment: Origins of the Right to Bear Arms by Stephen P. Halbrook. One of the things he wrote about, of which I was previously unaware, was the debate between the Federalists and the Anti-Federalists on whether or not there should even be a Bill of Rights included into the Constitution. Interestingly, the crux of the Federalist argument was that inclusion of a Bill of Rights would simply give government a list to chip away at, because that is the nature of government. They argued that the natural rights of man, which included the RKBA, were commonly known to all, and it was not necessary to list them for people to know what their rights were/are. The Anti-Federalist argument was basically that, if the rights were not enumerated and amended into the Constitution, that government would insidiously and gradually refuse to acknowledge them.

In hindsight, both were right. At the time, citizens did know their rights, and they didn't need a list of them to remind them. Furthermore, their government, having just recently obtained those liberties as well as independence from England on the citizenry's behalf, held those values in high esteem and was not inclined to abrogate them. The Federalists were right. However, the intervening 200 years teaches us that our government has lost its way, and it has chipped away at the expression of our rights. It is not credible to believe that our rights would be in better shape today if we had not had a Bill of Rights amended into the Constitution.

[Dutch]

Unfortunately for his claim, if he's going to make statements about the Founders' intent, then he has to assign their words the exact same meaning they had when the Founders used those words. In the context of the Founders' use and understanding of the English language in the late 18th century, "regulated" had a meaning more akin to our use of "standardized" today, rather than "controlled;" and the intent was to make sure that the militia could be standardized as to choice of weaponry - which has the subtext that the citizenry were expected to be able to purchase and keep military grade weapons in the event the militia was called up.

Then you'll love the Breyer dissenting opinion with Sotomayor and Ginsburg joining:
http://www.leagle.com/unsecure/page.htm ... 100628007t" onclick="window.open(this.href);return false;

And subsequent scholarly writing reveals why disputed history provides treacherous ground on which to build decisions written by judges who are not expert at history.
...
The Court based its conclusions almost exclusively upon its reading of history. But the relevant history in Heller was far from clear: Four dissenting Justices disagreed with the majority's historical analysis. And subsequent scholarly writing reveals why disputed history provides treacherous ground on which to build decisions written by judges who are not expert at history.

[jester]

Bloody fascists.

"the right of the people peaceably to assemble"
"the right of the people to keep and bear Arms"
"The right of the people to be secure in their persons, houses, papers..."

[bdickens]

Libtards like them routinely display an apalling level of illeteracy.

Hey, Breyer, Ginsburg and the rest of you! Check this out: http://www.rif.org/" onclick="window.open(this.href);return false;