Antonin Scalia getting ready to CRUSH the Freedom Haters

Diest TKO wrote:

I learned how to tolerate idiots like you years ago.

Wow! That's a REALLY impressive temper tantrum!

In 1934, Congress enacted the National Firearms Act, the first major federal firearms law.1 Upholding a conviction under that Act, this Court held that, "

Advocate wrote:

I haven't read the actual decision, but understand that it is limited to saying that an individual has a right to keep a handgun in his home. This doesn't seem to be a big deal.

Could someone please correct me if I am wrong.

It didn't put any hard limits on the right -- the boundaries are left to future cases.

I have high hopes of overturning bans on armor-piercing ammo and sawed-off shotguns based on the ruling.

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase "part of ordinary military equipment" could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller's "ordinary military equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same." State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973)). Indeed, that is precisely the way in which the Second Amendment's operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.25

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383-384 (1824); O'Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874). It may be objected that if weapons that are most useful in military service--M-16 rifles and the like--may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Conservatives are thrilled about the Supreme Court decision settling the 2nd amendment issue in favor of individual gun owners (versus the idea that gun rights are only within the framework of a well-regulated militia). They are celebrating the constitution today. God bless their hearts. I wish they did that more often and about more amendments.

I believe in gun control. I believe that guns do kill people. In fact, they are designed to kill things. It is indisputable that they make killing a lot easier. That's what they're made for.

But I believe my side has lost this issue for now in the court of public opinion and in the Supreme Court. There are actually two different issues here. One is the policy argument concerning how much gun control we should have. The other is the constitutional argument of what the second amendment means.

I think it is reasonable to disagree on the meaning of the second amendment. In fact, I'm torn on it. If I heard this case myself as a judge and ultimately came down against the majority decision (which is not a certainty at all, I think this presents an excellent and close constitutional question -- apparently the Supreme Court agreed since they split 5-4 on it), I still wouldn't find the majority position unreasonable.

So, I am happy to concede that we should follow the second amendment to the letter of the law (as interpreted in this case). Now, can conservatives find it in their heart to agree that we should also follow the fourth amendment to the letter of the law? And if they can't, what possible logical or constitutional arguments can they have for fervently defending one amendment and rejecting another?

The fourth amendment clearly states that the government needs a warrant with probable cause in order for it to conduct a search or seizure. The Bush administration has been in flagrant violation of this for seven years now. They refuse to get warrants to wiretap conversations of Americans speaking with or emailing people abroad. This is clearly illegal and unconstitutional. But here conservatives find the constitution a little more inconvenient.

Justice Scalia warned after the recent Guantanamo Bay case, that the majority had almost certainly caused the deaths of many Americans with their decision. I think that's absurd hyperbole. But what is entirely possible is that the second amendment decision written by Scalia will lead to many more American deaths. But I don't begrudge him that. If he thinks that's the correct interpretation of the amendment, then our only recourse is to pass another amendment overriding it (not going to happen). We'll have to live with the extra deaths. Freedom isn't free.

But here, I propose a very fair trade. I will trade the second amendment for the fourth amendment. If the Bush administration releases the fourth amendment that it is currently holding hostage, I'm happy to consider the Supreme Court decision on the second amendment final and decisive. You keep the second amendment, we keep the fourth.

That seems like the fairest possible trade. My guess is that conservatives won't bite. They will continue the party line about how crucial it is that we follow the constitution when it comes to the second amendment and how important it is that we ignore the constitution when it comes to the fourth.

Fourth Amendment - Search and Seizure


Amendment Text | Annotations
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

oralloy wrote:

Advocate wrote:

I haven't read the actual decision, but understand that it is limited to saying that an individual has a right to keep a handgun in his home. This doesn't seem to be a big deal.

Could someone please correct me if I am wrong.

It didn't put any hard limits on the right -- the boundaries are left to future cases.

I have high hopes of overturning bans on armor-piercing ammo and sawed-off shotguns based on the ruling.

Here are the two parts of the ruling that describe the boundaries of the right:

Quote:

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase "part of ordinary military equipment" could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller's "ordinary military equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same." State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973)). Indeed, that is precisely the way in which the Second Amendment's operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.25

Quote:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383-384 (1824); O'Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874). It may be objected that if weapons that are most useful in military service--M-16 rifles and the like--may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

By my reading, if you can show that a weapon is ideal for a legitimate civilian use (including self defense) then it is protected, otherwise not.

So the ultimate question is, what sort of weapons are ideal for self-defense?