Guns and the Supreme Court

Perhaps it is, McTag, but it's not listed in the US Constitution. Nor do I have any recollection of reading of it in Bagehot's trusty old tome....

In Cruikshank, the Court held that the Fourteenth Amendment did not apply because it binds the States to assure due process, but it does not bind individuals, and the defendants were individuals, and not agents of the state. That case was in 1875, just seven years after the Fourteenth Amendment had been ratified. In Presser, the Court held that the defendant was in error to cite the Fourteenth Amendment, and held that it was: . . . so clearly untenable as to require no discussion.--which you would have known if you had bothered to read my post, or to actually look the cases up.

Both Cruikshank and Presser were cases in which a violation of the Fourteenth Amendment was alleged, and was rejected by the Court on both occasions--it was no accident that i alluded to those two particular cases. If you had bothered to look up and read the decisions, you would not now continue to make a fool of yourself.

The only basis for the concept of incorporation with regard to individual rights arising from the Fourteenth Amendment is the denial of due process and equal treatment under the law. So long as a State's statutes deny a class of weapon to all persons, it is ludicrous to allege either a lack of due process or of unequal treatment under the law.

Incorporation was not a case of someone simply stating that all the rights accorded to the People in the Constitution were now incumbent upon the States to assure because of the Fourteenth Amendment. Incorporation only works to the extent that a plaintiff or defendant can successfully argue that his or her right to due process and/or equal treatment before the law has been infringed, which then violates the Fourteenth Amendment.

Do some reading, you're just making yourself look more and more foolish.

Set, you really across as a garrulous, pedantic, fool. An extension of your logic is that A14 does not extend to individuals rights provided in A4, etc. Again, no matter how many words you spit out, you have not refuted my statement regarding the relationship between A2 and A14.

oh, the irony of it all;

You make a bigger fool of yourself with each post--and now you're erecting a straw man argument. At no time did i claim anytbing remotely resembling this drivel: " . . . A14 does not extend to individuals rights provided in A4, etc."

I pointed out that in The United States versus Cruikshank, the Supremes rejected the Fourteenth Amendment portion of the indictment, because the defendants were individual, private citizens, and they pointed out that the Fourteenth Amendment binds the States, and not individuals. Specifically--as you would find if you actually read the opinion (which i am unable to link, but which even a child could find online) rather than shooting off your mouth like a hot-head--what was written in the majority opinion was: "The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another." At no time did i make an allegation as stupid as you have attributed to me above. This is especially poor work on your part, and if your screen name implies that you intend to practice law, i pity any client who has the misfortune to retain your services.

If you intend to continue to bray like a jackass, without bothering to read the case law to which i have consistently referred, don't expect any more responses from me. I'm sick of your attempt to vilify me because of your ignorance.

We need some joined-up thinking here, and I don't think the answer to the problem will be found in old case law. We need a fresh start, break new ground.

Here's my argument: Guns in the wrong hands is a social evil. We've seen lots of examples of that quite recently, so no need to labour the point.
Once the weapons are out there, both suitable and unsuitable people can get their hands on them. There is no way the law enforcement agencies can ensure the "wrong hands" are not involved until after another tragedy has taken place.
This leads to the conclusion that either gun or ammunition supply has to be curtailed to reduce the level of gun slayings in society (assuming that society at large thinks this is a good idea)

Would this be easy or popular? No to both, emphatically. Is it worthwhile? Of course.

Take the nuclear weapons problem. America thinks (with excellent reason) that Iran is not a suitable country to posess nuclear bombs, and will do everything in its power to prevent it getting the technology and materials.
The analogy seems stark. Why will the Administration not use the same logic with regard to guns in society? I think it should.

I dispute the notion that fewer guns will lead to dramatically fewer deaths. Fewer gun slayings, yes, but that will be compensated for by more non-gun slayings.

However, even if it were actually established that fewer guns would result in a lot of lives being saved, the freedom to have guns is far more important to me than saving lives.

(But I'm all for saving lives if it doesn't mean taking guns away from people.)

That's the nub of the problem, isn't it. It's always other people.

Because a rancher in Montana "needs" a rifle, a youth in Chicago can get a pistol, and a kid anywhere can order an army assault rifle.

Seen from this distance, it's a ludicrous situation.

Only question is, are you ready to die trying to establish such a state of affairs? The second ammendment is about the only thing which let me and millions of others feel safe enough to stay in the US during the eight years of the KKKlintler administration; you can be utterly certain that we will not give it up without a fight.

Other than that, if you can't keep guns and drugs out of America, how do you plan to reduce the supply of ammunition. All that would do is create a black market in ammo and the criminals would still have it.

In fact it's really only people involved in shooting SPORTS who go through ammo in any quantities. 200 rounds of 9mm ammo would be a lifetime supply for most criminals and most of them likely have that much stashed as of now.

That's the most compelling argument I've ever seen for repealing the second amendment.

The term "need" always makes me uncomfortable. I want to live in a country where people can buy a gun if they "want" one, regardless of whether they need it.

It is reasonable for some restrictions on kids with guns, though that shouldn't be taken to an extreme. A lot of kids hunt. My high school always had to close for the first two days of deer season because most of the kids were out hunting deer.

I understood, as gunga hints, that the American people do not trust their government once it has them disarmed. They left Europe to get away from untrustworthy governments.

The collateral damage is a price they seem willing to pay possibly because they see it in relation to future deaths in less auspicious circumstances.

You got it.

I concur, especially with GWB in office. I need all the protection against him I can get.

Fantasy Land, so common sense will not apply.

I'm not clear whether a majority of voters in the USA even want a ban on firearms.

Much of the torturous nature of the argument over gun control hinges on a distinction which the more fanatical opponents of gun control are usually unwilling to acknowledge--that is the distinction between hand guns and "long" guns, or rifles. While one could hunt deer with a pistol, it is not reasonable to assert that it is as effective a weapon for that purpose as a rifle or a shotgun. I don't have a problem with people possessing rifles or shotguns, either for the purpose of hunting or putatively to provide them self-defense in their homes. The problem with the proliferation of firearms is a problem of hand guns, "on the street." The ability to obtain a handgun cheaply and easily, and then to secrete it upon one's person is the only reasonable basis upon which to assert that the possession of firearms makes us "unsafe."

For my own part--although discussions of this type usually don't leave an opportunity to bring this up--i don't have a problem with the notion that people have a constitutional right to own firearms, nor do i have a problem with the right of either the States or the Federal government to regulate firearms. In two of the cases to which i referred above--Presser versus Illinois and The United States versus Cruikshank--the Supremes stated that the Second Amendment binds the Federal government, and not the States. To that extent, one may infer that, at least so far as the Court is concerned, there are no constitutional restrictions on the right of the States to regulate firearms.

As well, in The United States versus Miller (307 U.S. 174, 1939), in upholding the 1934 National Firearms Act, the Court commented: In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. The Court then alluded to the authority of the Congress to call out the militia (Article I, Section 8: [Congress shall have the power:] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;), and commented: With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. I find no plausible reason to object to that interpretation of the Court.

Immediately after the elucidation of the power of Congress to call out the militia, a further power of Congress is articulated, to wit: [Congress shall have the power:] To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress. Given that the Congress may provide for arming the militia, i see no plausible basis upon which to deny that the Federal government may regulate firearms.

Some opponents of gun control have pointed out that shotguns, including those with a barrel of less than eighteen inches in length, have been used by military forces. That argument does not alter or negate the right of Congress to arm the militia. The military does not uniformly arm soldiers and Marines with shotguns having a barrel of less than eighteen inches in length, and the Dick Act of 1905, which created the National Guard, provides a framework within which the Congress can stipulate how the "militia" may be armed, in terms of the National Guard. As the Dick Act also recognizes the existence of an "unorganized militia," which one infers are those citizens with the right to bear arms who are not members of the Army National Guard or any of the uniformed services Reserve organizations, i see no reason not to assume that Congress retains the right to provide for arming the unorganized militia. Those who have objected that traditionally, the militia were expected to provide their own firearms, apart from ignoring that both before and after the revolution, the militia were provided with military style of firearms, that is to say, muskets, are not advancing a reasonable argument against the right of the Congress to stipulate what firearms are acceptable as the equipment of a "well regulated militia."

Just as shotguns with a barrel of less than eighteen inches are not commonly the equipment of an efficient military force, so handguns are not commonly the equipment of an efficient military force. Commonly, handguns are the equipment of officers. As can be seen from the language of Article I, Section 8 as quoted above, the right to appoint officers is reserved to the States. Therefore, it is perfectly reasonable to assert, on that basis, that the States could, if they so chose, restrict handgun ownership to officers of the militia, and the police forces.

Sadly, far too many opponents of gun control, and especially those who richly deserve the epithet "gun nuts," choose to read the Second Amendment far differently than it is written. They ignore altogether the initial dependent clause: "A well-regulated militia, being necessary to the security of a free State . . . " They then focus on the second clause, and render it as: " . . . the right of the People to keep and bear any goddamned firearm I want shall not be infringed."

I suspect that no one else, who is being honest, knows whether or not the majority of voters want a ban on firearms. But that is to oversimplify the issue, which was what i was pointing out in my last post. The question more properly would be whether or not the majority of voters consider that the States and the Federal government have a right to regulate firearms. Of course, partisans on either side of this issue are likely to claim that they have statistics which support their position (and everyone knows that statistics are the leading cause of cancer).

If you simply posed the question as whether or not the electorate want a ban on firearms, i suspect that your response would be overwhelmingly no. But if you made the question more subtle (and realistic), i'm not sure that the majority of the electorate would oppose all gun control legislation. A complete ban on firearms and the regulation of firearms are not the same thing at all.

Firearm violence, and fatal accidents with firearms overwhelmingly result from handguns.

....and are dwarfed by other larger problems that our politicians should be focusing more of their time on.

Re: Guns and the Supreme Court

I don't know, but I have a feeling that justice Kennedy will write the opinion for the 5-4 majority. What this opinion will say depends on who the other four justices are.

If it's the four justices to the liberal side of Kennedy, and if they are smart, the opinion will establish a fairly narrow reading of the amendment, but find that DC's outright ban won't pass even this narrow reading. Scalia or Thomas will write a passionate dissent to such a ruling, which Roberts and Alito may or may not join.

Another outcome I can see is Scalia writing the majority opinion, striking down the ban and establishing a much broader reading of the amendment. Thomas, Roberts, and Alito, and perhaps Kennedy will join. If Kennedy doesn't join in this scenario, he will write an opinion concurring in part and concurring in judgment.

Either way, this won't be Supreme Court's last word on the Second Amendment within the next five years.

(I'm responding directly to AU's initial post here. If I happen to repeat what others have said, I apologize for the plagiarism.)

Personally, I expect that the Supreme Court majority opinion will find some way to avoid interpreting the second amendment.