Potential Supreme Court ruling on the Second Amendment

[ThePug]

Indeed - in fact the phrasing of the question itself presupposes an individual right.

It presupposes that that an individual can have rights under the 2nd Amendment, not that those rights are independent of being in a militia. If someone in a militia (which is the NG under current jurisprudence, another laughable legal fiction) is denied the RTKBA, it would still be a violation of that "individual's rights". The scotusblog explains it in their write-up. Of course, the idea of a NG member being denied the RTKBA is absurd, but the possibility that that's the "individual right" is left open in the question. I agree the wording is indeed heartening, though.

[mvpel]

10 USC 311 specifies that the United States Militia consists of able-bodied males from 17 to 44, among others.  The New Hampshire Militia consists of all able-bodied resident US citizens age 18 and up, among others, per RSA 110-B:1.

If the right attains to only those who are members of a militia, it's a massive expansion of the existing scope of firearms rights in most places in the nation.  For example, the handgun purchase and carry ban imposed against those 17-20 years old could be challenged on Second Amendment grounds.

[ThePug]

10 USC 311 specifies that the United States Militia consists of able-bodied males from 17 to 44, among others.  The New Hampshire Militia consists of all able-bodied resident US citizens age 18 and up, among others, per RSA 110-B:1.

If the right attains to only those who are members of a militia, it's a massive expansion of the existing scope of firearms rights in most places in the nation.  For example, the handgun purchase and carry ban imposed against those 17-20 years old could be challenged on Second Amendment grounds.

That's the "unorganized militia", though, which if I'm not mistaken doesn't count as a "well-regulated militia" under the 2nd Amendment. It's a great argument, though. Of course, if accepted, that would leave open the possibility of the legislation defining the unorganized militia simply being repealed. It's a legal fiction, anyway. Aside from being part of the unorganized militia on paper, being in the defined group doesn't really mean anything under the current system (at least at the Federal level, I'm not familiar with the NH laws but it's probably a similar situation). Conscription and emergency call-ups are done under the Selective Service, which is based on the Article I, Section 8 power of the Congress to "raise armies", and has nothing to do with the Constitutional concept of a "militia". (SS is of course a violation of the 13th Amendment, but that's opening a whole other can of worms).

[mvpel]

Given that "well-regulated" means "properly functioning..."

There's a vast body of jurisprudence and scholarship supporting a broad individual rights interpretation, and one would have to be as foolish and disingenuous as the Ninth Circuit, the most overturned circuit in history, to ignore it.

[mvpel]

Someone 17 years old, even though a member of the Militia of the United States, can't buy any firearm at all on his or her own account, and 18-20 year-olds can't buy a handgun from a dealer.

[Seamas]

I am very optimistic.  I base this optimism on both my own reading of the Second Amendment and the writings of the founders on private firearms ownership.  Furthermore, legal scholarship has come to acknowledge this in recent years to the point where even liberal scholars such as Laurence Tribe are in agreement that it is an individual right, like the rest of the enumerated rights.  Check this out: http://www.nytimes.com/2007/05/06/us/06firearms.html.

As an example: "Professor Levinson published an article in The Yale Law Journal called "The Embarrassing Second Amendment."
"The Levinson piece was very much a turning point," said Mr. Henigan of the Brady Center. "He was a well-respected scholar, and he was associated with a liberal point of view politically.""

Basically, even liberal law scholars have come to the conclusion that the Second Amendment guarantees an individual right.  They may not like it (e.g. the "Embarrassing Second Amendment") but one has to give them considerable props for stating the truth despite their bias.  In the late 90's my (very liberal) ex-girlfriend was in law school and when I asked her about whether the Second Amendment applied to an individual right she said, "of course it does, but I don't like it."  QED.

The possibilities are:
1) The worst thing that could happen with this case is that the Supreme Court rules that the Second Amendment is about a collective right; in which case we are back to the status quo (seems unlikely, given that this is the status quo).
2) They make a narrow ruling that applies to the specific case.
3) They rule that the Second Amendment applies to an individual right - a huge win.
4) They rule that not only do Second Amendment rights apply to individuals but they apply to all arms normally held by the infantry (unlikely, but correct).

I'm not seeing a scenario in which Second Amendment supporters lose...

I'm optimistic. The ruling might be narrow, but there's little chance that it will be harmful. They'll still be deciding the question as to rather or not there's an individual right TKBA. If they uphold the Appeals Court ruling, that would be a huge victory. It wouldn't be like Roe v. Wade, instantly overturning laws across the country, but it would open the door to getting a lot of those laws overturned. That's normally how these things go- an initial court ruling that really only takes effect after later rulings begin building on it.

It also helps that the dissenting opinion in the Appeals Court ruling was based on some absurd and unfounded argument about how DC isn't a state.

[penguins4me]

Please note the "United States" in the definition above. This is NOT the constitutional government you may think it is, but rather and instead the CORPORATE GOVERNMENT. What follows is 28 USC 3002(15) Definitions which clearly identifies the "United States" as a CORPORATION ! Many call this deception, semantic subterfuge, I prefer to call it what it really is, Sedition by syntax!

It wouldn't suprise me terribly to find some or all of that to be true, but at this point, there is just far too much information and misinformation out there, and considering that I've not taken the time to start tackling it all, I don't have an informed opinion.

For the moment, it's easier and (I believe) just as effective to quickly show others just how far outside of legitimate authority fed gov't is operating, given that its SOLE source of authority is the Constitution (which is not by any stretch ideal - next on my study list is the Articles of Confederation).

[John Edward Mercier]

Unless something was found unconstitutional by the SC, how would government be operating outside its authority?

I don't remember seeing any individual rights mentions within the A of C. In fact, the original body of the US Constitution also did not contain these individual rights... they were amendments added to secure ratification.

[penguins4me]

Unless something was found unconstitutional by the SC, how would government be operating outside its authority?

The federal government's sole source of authority is the Constitution, which is a document listing enumerated powers. If a power is not *explicitly* granted to the federal government, the federal government cannot legitimately assume that power. Whether or not an arbitrary number of black-robed humans agrees with that does not change the matter that it is a fact.

I don't remember seeing any individual rights mentions within the A of C. In fact, the original body of the US Constitution also did not contain these individual rights... they were amendments added to secure ratification.

... because few states trusted the Constitution. The constitutional conventions were called to fix a few minor issues with the AoC, but the conventions ended up producing an entirely different governmental beast - would YOU not be wary of such an obvious bait-and-switch tactic?

[KBCraig]

I don't remember seeing any individual rights mentions within the A of C. In fact, the original body of the US Constitution also did not contain these individual rights...

Such rights were thought to be so fundamental, and so universally understood, that many considered it redundant to list them. Some wished to add a BoR because they understood that government grows and forgets its limits; others fought against it, because they feared that future generations might construe the Constitution to be granting the rights, and forget that those rights enumerated were not the only rights we have. Both groups turned out to be correct.

As you note, the Constitution could not be ratified without the BoR, so it was added.

[John Edward Mercier]

I don't remember seeing any individual rights mentions within the A of C. In fact, the original body of the US Constitution also did not contain these individual rights...

Such rights were thought to be so fundamental, and so universally understood, that many considered it redundant to list them. Some wished to add a BoR because they understood that government grows and forgets its limits; others fought against it, because they feared that future generations might construe the Constitution to be granting the rights, and forget that those rights enumerated were not the only rights we have. Both groups turned out to be correct.

As you note, the Constitution could not be ratified without the BoR, so it was added.

The US Constution granted all powers not reserved for Federal, or individual, to the States (10th). NH citizenry thought it necessary to add individual rights to their Constitution... maybe we're not as trusting.

[John Edward Mercier]

Unless something was found unconstitutional by the SC, how would government be operating outside its authority?

The federal government's sole source of authority is the Constitution, which is a document listing enumerated powers. If a power is not *explicitly* granted to the federal government, the federal government cannot legitimately assume that power. Whether or not an arbitrary number of black-robed humans agrees with that does not change the matter that it is a fact.

I don't remember seeing any individual rights mentions within the A of C. In fact, the original body of the US Constitution also did not contain these individual rights... they were amendments added to secure ratification.

... because few states trusted the Constitution. The constitutional conventions were called to fix a few minor issues with the AoC, but the conventions ended up producing an entirely different governmental beast - would YOU not be wary of such an obvious bait-and-switch tactic?

My understanding is the law is enacted... then SC reviewed... then if found unconstitutional struck down. But if the SC does not review a law, that it stands until such time as it does.

[MaineShark]

Unless something was found unconstitutional by the SC, how would government be operating outside its authority?

The federal government's sole source of authority is the Constitution, which is a document listing enumerated powers. If a power is not *explicitly* granted to the federal government, the federal government cannot legitimately assume that power. Whether or not an arbitrary number of black-robed humans agrees with that does not change the matter that it is a fact.

The Federal government's source of authority is thugs with guns.  Nothing more.

The US Constution granted all powers not reserved for Federal, or individual, to the States (10th). NH citizenry thought it necessary to add individual rights to their Constitution... maybe we're not as trusting.

The 10th Amendment doesn't "grant" powers to the States.

Joe

[John Edward Mercier]

Unless something was found unconstitutional by the SC, how would government be operating outside its authority?

The federal government's sole source of authority is the Constitution, which is a document listing enumerated powers. If a power is not *explicitly* granted to the federal government, the federal government cannot legitimately assume that power. Whether or not an arbitrary number of black-robed humans agrees with that does not change the matter that it is a fact.

The Federal government's source of authority is thugs with guns.  Nothing more.

The US Constution granted all powers not reserved for Federal, or individual, to the States (10th). NH citizenry thought it necessary to add individual rights to their Constitution... maybe we're not as trusting.

The 10th Amendment doesn't "grant" powers to the States.

Joe

Sorry, Late night. Powers not delegated to the Federal government are reserved to the States.

[J’raxis 270145]

My understanding is the law is enacted... then SC reviewed... then if found unconstitutional struck down. But if the SC does not review a law, that it stands until such time as it does.

This is true, but it's important to note that it's only as a result of the Marbury v. Madison case. The Constitution doesn't authorize the SC to review laws.