NJCSD Predicts Supreme Court Will Acknowledge 2nd Amendment as Individual Right

New Jersey Coalition for Self Defense ^ | 5/5/2008 | NJCSD President

[Publius6961]

For many years, anti-gun factions have argued that an earlier decision by the Supreme Court in US vs. Miller established that the 2nd Amendment implied a collective right, meaning that private citizens had no individual right to own or carry firearms for self-defense or home protection.

And for just as many years, it has been argued quite persuasively (from facts on the record, not 'opinions'), that the US vs Miller decision was based entirely on fraud on the prosecutions' part.

[Publius6961]

But I would also point out that the 5th Amendment does allow for the removal of rights (it specifically mentions life, liberty, and property) with "due process", suggesting that criminals may have their rights revoked constitutionally via due process. So I don't see a problem there.

Well, I do.
And I'm not a lawyer.

If the 5th amendment was intended to allow "due process" (as vague and arbitrary a phrase as can be invented) to cancel out all the other amendments, including itself, I can only quote Oliver Hardy and repeat, "What a revolting development this is!"

[Publius6961]

nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;

Every time I see this, I am reminded of the bulletproof wording of this Constitutional restriction. It allows NO qualifications whatsoever.

Yet, several instances of the federal government's gross violation of this right have occured, without challenge, where the feds allow the state court to try a crime and, if the verdict is "un-PC", to try the same crime, albeit it under a fraudulent different name in federal courts.

[vincentfreeman]

"that "keep" means retain ownership of, and "bear" means carry."

Maybe the definition has changed over the decades, but I thought "keep" originally meant "upkeep" or "maintain" and "bear" originally meant "to carry into battle".

Also, I thought that "keep and bear" was a phrase like "cruel and unusual" or "necessary and proper", and was not meant to have separate meaning. Maybe it does today.

[ops33]

Exactly, I do not think that “shall not be infringed” refers to a type of weapon, like a grenade or bomb, but rather to the right in itself.

While I grew up in South Carolina and have never been to Wisconsin, I have loved the Packers since I was a small boy. It has always been my dream to go to Lambeau for a homegame. I would love to see the Pack play the Bears sometime around the 2nd or 3rd Sunday in October. That would be heaven! Problem is, I don’t think I could ever afford the tickets. So what I will probably do is get tickets for an exhibition game instead. Still, it will Lambeau and the Pack!!

[Publius6961]

Maybe the definition has changed over the decades, but I thought "keep" originally meant "upkeep" or "maintain" and "bear" originally meant "to carry into battle".

Well, that's the sort of verbal legerdemain that the anti-gun hysterics employ.

I believe no such thing.

[devistate one four]

THAT’s The way I see it. Plain and simple. Don’t need a lawyer or judge to interpret any part of the 2nd

[B4Ranch]

>I AM a huge Packers fan —<

Unless you’re over 250 pounds, I’d say that you’re an average fan. Huge would need to be somewhere over 400 lbs.

[Question_Assumptions]

So you believe criminals should have a right to keep and bear arms in jail? Do you think prisoners in jail should be protected against unwarranted search and seizure? Do you think prisoners in jail should be given their liberty instead of being locked up? The Constitution recognizes that people convicted of crimes don't have the same rights as innocent people.

The Founding Fathers qualified many of the rights in the Constitution for a reason. Read it. There are conditions under which Habeas Corpus can be suspended. They can take private property for public use with compensation. They can deprive a person of life, liberty, or property with due process. It's a product of compromise and a pragmatic understanding of how governments work, not the magical libertarian document of absolutes that many people imagine it to be.

[Question_Assumptions]

Correct. My point is that a person could be denied the right to possess guns as part of a due process conviction but I agree that it can't constitutionally be denied to others.

[vincentfreeman]

"but I agree that it can't constitutionally be denied to others."

Even fundamental rights, like speech, may be reasonably regulated by Congress. The right to keep and bear arms is no exception.

Is there a reason why you think an exception for this right above all others should be made?

[Amendment10]

The referenced article wrongly ignores the history of the 14th Amendment. Although DC v. Heller is not a state power issue, most people are ignoring that John Bingham and the 39th Congress clarified that the 2nd A. is a personal right. So DC v. Heller was actually decided in Heller's favor when the 14th A. was made.

See the 2nd A. in the middle column of the following page from the Congressional Globe, a precursor to the Congressional Record.

http://tinyurl.com/y3ne4n

The page referenced above is one of Bingham's discussions of the 14th A., Bingham being the main author of Sec. 1 of that amendment.

Given that the USSC actually decides DC v. Heller in favor of DC, then the USSC is due, actually long overdue, for a peaceful overthrow. Lincoln put it this way.

"We the People are the rightful master of both congress and the courts - not to overthrow the Constitution, but to overthrow the men who pervert the Constitution." --Abraham Lincoln (Political debates between Lincoln and Douglas), 1858.

[Stat-boy]

I understand your point, but to be precisely true:
Fundamental rights are subject to a strict scrutiny standard, not just a reasonable standard. This means [from Wiki]:

To pass strict scrutiny, the law or policy must satisfy three prongs:

1. First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.
2. Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (over-inclusive) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.
3. Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this ‘least restrictive means’ requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.

I would be very, very happy—would probably jump for joy—if the SC held that the right to keep and bear arms is a fundamental right [which it should do].

[Question_Assumptions]

Read the working of the various amendments. The second is unqualified in scope or range and fairly strongly worded. The First was limited to Congress, the assumption being that the states would regulte things like obscenity and slander. Please note that I'm not saying how I think things should be and I can certainly see the justification for some regulation. I'm simply pointing out that, as worded, the second amendment isn't qualified and if we want to qualify it, we should actually amend the Constitution rather than just pretending it says things that it doesn't or doesn't say things that it clearly does.

[vincentfreeman]

"The second is unqualified in scope or range and fairly strongly worded."

Correct. The founders wanted to protect the state Militia from federal infringement in no uncertain terms. There are no limitations or restrictions in the second amendment and none are necessary.

However, if one interprets the second amendment as protecting an individual right outside of the Militia, well, that leads to the discovery of limitations and restrictions on arms and keeping and bearing that I don't see.

I agree with you. The second amendment should be formally amended if, for example, "arms" are to be limited to semi-auto rifles, shotguns and hanguns.

[Question_Assumptions]

I don't think the argument that the 2nd Amendment was intended to be limited to militias only is supportable either by the wording of the amendment (which clearly places the right with "the people") nor the early drafts or sources of the Bill of Rights (for example, if you look at early drafts of the 1st Amendment, they include explanatory clauses, like the militia clause, explaining why freedom of speech is important. I think it's hard to read "people" as anything but an individual right.

[vincentfreeman]

"I would be very, very happy—would probably jump for joy—if the SC held that the right to keep and bear arms is a fundamental right [which it should do]."

If they did, then they'd probably incorporate it and make it applicable to the states -- something we might regret.

Once incorporated, the SC interprets it for all states. For example, the first amendment is incorporated. The SC said nude dancing is "speech" and is therefore protected. All states must honor that interpretation. Ditto abortion -- allowed. Flag burning -- allowed. Under God -- nope. Nativity scenes at Christmas Winter Festival - nope.

Now, imagine 5 liberal justices on some future SC stating that "arms" don't include handguns. Or "bear" doesn't include concealed carry. Or "keep" means in a state armory.

Hey, if they can find abortion in a penumbra of an emanation, they can find anything.

[vincentfreeman]

"which clearly places the right with "the people"

It clearly does. Not with "the citizens". Not with "all persons".

"I think it's hard to read "people" as anything but an individual right."

Let's accept that. Then how do you read "arms" for these individuals? I see no limitation.

[Question_Assumptions]

I think I would limit it to arms that a person could bear but would have to look at the 18th Century meaning of "arms" to be certain. It would also not cover any arms prohibited to the US by treaties, since Article VI makes treaties the "supreme law of the land" along with the Constitution and laws passed at the federal level.

[clee1]

“Abridged” deals with words.

“Infringed” deals with actions.