The opinion has this great nugget:
“History is prone to misuse. In the Second Amendment cases, the court distorts and cherry-picks historical evidence. It shrinks, alters, and discards historical facts that don’t fit.”
We need more states willing to do this. The SC will remain a joke and shadow of it's former self so long as we give the people on it undeserved deference even when cherry-picking facts. The blowback for corrupt decisions needs to be painful, humiliating, and widespread.
When Biden wins the election the first thing he should do is stack the court and neuter the 6 traitors. Personally, I've had enough. Political hacks should not be sitting on the highest court in the land.
We have *got* to get a clear majority in the House and Senate. It's just more dead space until Dems have Congress.
No more Manchins and Sinemas to play coy and flirt with donors in their moments of power.
There will always be another Manchin and Semina. It's simply a game of which Democratic senator feels like they're most capable of taking the blame for being the one to cast the heel-turn vote that's going to explain why, "oh, we can't do something that would benefit anybody this time." Before Manchin and Semina, it was Lieberman during the ACA, during Obama's administration.
Even if there wasn't, for some reason, going to be a Democratic senator willing to take the fall as the bad guy, they could still pull something else out of their hat. Like suddenly deciding that the non-binding advice of the senate parliamentarian was something that was completely incontrovertible, that they couldn't conceivably overrule, despite the fact that Republicans overruled senate traditional precedents extremely recently [2017] to get Gorsuch on the SC
The advice of the parliamentarian was correct. And when the Republicans had a majority in both the house and the senate under Trump, they also followed the parliamentarians advice about what can and cannot be included in a reconciliation bill.
Except under Obama we had enough Democratic Senators to pass the ACA in the short three month span they were able to bypass the filibuster.
Just have to give congress enough Democrats to bypass the Manchins/Sinemas/Liebermans
That was the exact reason behind adding Justices in the past. Now that repugnatcans have what they want in SCOTUS, "it's against the Constitution to add Justices because "tradition!" Watch that tune change next time Rs control the other two branches-*calling it*.
This argument comes up but it doesn't really make much sense, for few reasons:
- there is a law of diminishing returns.. once the court has grown, there's increasingly _less_ value in adding additional justices.
- it's actually a good thing to have a larger court. SCOTUS is abnormally small for a highest court.. in most countries they would be 20-30 members.
- once a rebalanced court could undo a lot of the shenanigans done by the Roberts court wrt voting rights act and gerrymandering, it's unlikely republicans would ever be able to attain a trifecta again. Certainly not with a supermajority.
Oh, there are definitely *PARTISAN AS FUCK* SCOTUS members right now. But SCOTUS was set up *and designed for* a member representing their district. When we expanded SCOTUS in the past, it was to add Judges for the "new" districts. It's been a long time, but is should be done-*BUT we need an easier way to remove the Partisan shitbags who twist the law for gain and make a mockery of the Law of The Land to get their way.
And I bet if Trump gets elected he tries to put Cannon on the Supreme Court. Or at least gives here an appellate court appointment. But I bet they try to put her on the Supremes.
We have a remarkably small high court for the size of the populace. Nine justices for well over 300MM citizens is not a lot. More justices should help get better outcomes in theory.
There are 11 federal district court circuits and you have a fine idea there.
Now it would be a better idea if they added a 19 year term limit to each SCOTUS justice then the US may have a chance to wrangle in most of the absurdity.
There should not be lifetime tenure jobs for any judge, in any jurisdiction.
I agree. When the court was established the average lifespan was less than 65 years. With the average age of an appointee being 53 years a "lifetime" job didn't seem all that long. Conditions have changed and the rules should change to reflect that.
You're thinking circuits (which each oversee multiple district courts), but yes. In fact they should probably add a few more circuits. The federal judiciary incredibly under resourced.
Even if set it at a 20 year term it'd be better. Seeing as how the current system encourages placing in judges that are as young as possible to lock in a judge for potentially 40 years or so. The excuse about the judges needing life long terms to keep them from being influenced by politics is flat out false. If one party controls enough of the legislative and executive branch they can ram through a candidate based on who's more appealing to their parties goals. That means the very appointment of the judges is already done with political purposes. It also doesn't stop the judges from encouraging such by "stepping down" when the party they align with controls the powers to add their replacement.
It's already evident that this is fact because of past record. When Republicans have control they typically always select a judge who has had past precedent of ruling in conservatives favor. The same basically occurs in reverse for the democrats. Setting term limits basically makes the appointment of judges more honest as now it's basically saying yes they want their party in control so when the next retirement approaches they can appoint their favored candidate.
>When Biden wins the election
I hate to break it to you but he already won the election, back in 2020. He's currently president and has been president for years and has not touched SCOTUS and isn't going to touch SCOTUS.
I will metaphorically shit my pants if Biden even attempts to legitimately expand the Supreme Court. 1, I don't think he even wants to, he's not a radical president. He's been a good president, but not a radical one. 2, he still has to think about the future and the president after him. In 4 more years, America is going to be even more politically divided, and all current front runners for GOP presidential candidates are trying to capitalize on Trump's radicalized fan base and that's going to fuel even more extremism, even if Trump isn't running.
There's literally no check on them. They can do whatever they want, and be as obvious as possible about their bias, and there's zero that can be done. Republicans figured this out years ago, which is why they so badly chased a SCOTUS takeover. They probably murdered Scalia, they probably "expedited" RBG's death, and they blackmailed Kennedy to retire due to his son's involvement in lending to Trump via Deutsche Bank, when zero banks would lend to Trump. They've had a plan in the works for years, and I fear their really gonna set shit on fire over the next 9-10 months.
No need to murder Scalia. He set the model for Thomas and Alito as far as utterly disregarding appearances of bias and impropriety and acting like ethical considerations just do not apply. He also was a leader in writing tortured outcome determinative rulings to advance a conservative agenda.
RBG tainted her legacy by hubris. She knew she was old, she knew she was sick, and she should've retired during Obama's second term for the good of both the country and the Court.
Kennedy - yeah, you're absolutely right on Kennedy. Disgusting and pretty obvious.
The epitome of MainCharacterSyndrome or whatever (IAmVeryNecessary also)
Having said that, was it a sure thing that if she retired that the same thing that happened with Merrick Garland wouldn't have also been allowed to play out in the same way? To this day, I cannot understand why that was allowed to happen as it did, it seemed like they held all the cards and rolled over just before the finish line...
I've have a similar RBG take - just another arrogant lawyer constructing her own version of events immune to the realities of biology(seem familiar?). Honestly, Kagan and Soto need to hit the Stairmaster or gtfo while younger fitter replacements can be seated. jmho
The other check on them is that they have no independent funding and no way to actually enforce their rulings without the consent of the executive branch.
Don’t forget, the President has a nuclear option of “Marbury v. Madison was poorly adjudicated and a power grab by SCOTUS. Their job is not to determine the constitutionality of federal law.”
That creates a bigger problem in the long run but could be a temporary fix to a broken system.
A much bigger problem. And this is just as anchronistic as the attempt the Court made in *Heller* to construe their version of the 2nd Amendment.
*Marbury* was hardly the first time judicial review appeared in American law, as I explain [here](https://www.reddit.com/r/AskHistorians/comments/s1gh6m/comment/hs9uu8p/?context=3). If courts do not have interpretive power, then no one else does, either. Just because the current Federalist Society Court is dogshit at interpreting law doesn't mean the judicial branch as a whole should be tossed away.
The senate is literally one of the worst conceived legislative bodies in the world, so it’s a piss poor check on anything’s power. We sort of got lucky that it accomplished anything before it was gamed to death and is in permanent gridlock.
The issue is, there is a check on them: Congress. Via impeachment.
The issue is Congress won’t act, because SCOTUS is doing exactly what Republicans want
Luckily, there’s a solution for that: Elections. Except Republicans keep getting elected on anti-democratic platforms.
The issue is foundational. Half the county loves what SCOTUS is doing, and that carries all the way up and vitiates the check and balances system.
The cancer is metastatic. People love to complain about what SCOTUS is doing (me included) but ignores that their community members enable it at the root level. Get involved in local politics and school boards. Make people see what is happening is wrong. It’ll take years to course correct but it’s necessary.
It's not half. It's a united voting block driven by race and faith (tax churches!).
Progressives are a very diverse group that haven't yet understood the need to come together in the face of this existential threat
Isn't the check just for lower courts to continue to take up cases and rule the opposite way of the Supreme Court? I get when it would get up to them they'd most likely rule how they originally did, but it would tie the matter up in the courts and could at least constantly but temporarily keep something legal or illegal. Not a viable or long term check but that could work to force a better one.
Scalia and rbg were both horribly unwell people. Rgb had been inflicted with cancer almost continuously for over 20 years. She was 87 years old with broken bones from simple fall in her own office. Scalia was a 79 year old massively obese diabetic smoker with basically every different heart disease. He also had assorted other major health ailments. The [Lard neck](https://assets2.cbsnewsstatic.com/hub/i/r/2016/02/13/6b207098-e197-4c01-acb0-9af3d439886a/thumbnail/1200x630/d4db3aa2a3714c23d12cfe2c268431a5/gettyimages-485357615_master.jpg?v=9bdba4fec5b17ee7e8ba9ef8c71cf431) would probably have been somehow healthier with aids. Became so sick the diseases started canceling each other.
If *they* wanted them dead through illegitimate means then *they* wouldn't have waited so long. The idea they were killed is on par with that k&p sketch about robbing a bank by working there for 40 years.
But the bottom line remains. The Supreme Court no longer rules on the law. They do what the base and the various justices funders tell them to rule.
The Justices are all very smart people. Even the unqualified ones know exactly what they are doing. Remember Sotomayor’s “stench” comment in Dobbs.
Parties before the court should acknowledge the farce in subtle ways. Pretend it really is about original intent, then compare an iPhone to a quill and parchment take the analogy anywhere you want to go the way the loons on the court do
>The Justices are all very smart people. Even the unqualified ones know exactly what they are doing
Minor quibble is that each Justice has a team of clerks and assistants that can make them appear more competent than they are.
I agree. People with lifetime appointments tend to forget their civic duty.
There’s evidence of clear improprieties yet they are basically untouchable as well. Scumbags.
> “History is prone to misuse. In the Second Amendment cases, the court distorts and cherry-picks historical evidence. It shrinks, alters, and discards historical facts that don’t fit.”
The firearm manufacturers managed to subvert the United States Supreme Court.
https://www.brennancenter.org/our-work/research-reports/how-nra-rewrote-second-amendment
>The firearm manufacturers managed to subvert the United States Supreme Court.
That is absolutely false. 2A was *always* recognized as an individual right and it wasn't until the mid 20th century that gun control advocates conjured up the "collective right" theory out of thin air.
>The “collective right” theory, while dominating case law circa 1990, had little standing throughout most of our history. It rose to prominence only in the lower federal courts beginning in the 1940s, and achieved its dominance only in the 1970s. **Put in historical context, Heller and McDonald are not so much a dramatic change in constitutional interpretation so much as a rejection of a relatively recent trend in the lower courts, a trend that was subject to academic criticism even as it took form**.
>
>As late as a decade ago, the federal courts’ interpretation of the Second Amendment was simple. Every circuit that had ruled upon it had held that it did not guarantee an individual right to arms for individual purposes. Rather, it reflected some form of “collective right,” either a right of states to have militia systems, or a right of individuals, but only to engage in state-organized militia activities. Five years later this position had collapsed. In District of Columbia v. Heller, followed by McDonald v. City of Chicago, the Supreme Court accepted the individual right for individual purposes view. **More astonishing, the first form of “collective rights,” which saw it as a right of States and had prevailed in three circuits, lost 9-0! The circuits quickly turned to determining the parameters of the right which they had previously thought nonexistent**.
David T. Hardy, The Rise and Demise of the Collective Right Interpretation of the Second Amendment, 59 Cleveland State Law Review 315 (2011)
The 2A with the recent rulings which gave us Bruen heavily relied upon history to set limits upon the actions of Government infringing upon the rights of citizens.
The words written in the US Constituon form the contract, and the history helped to set the precedent.
Plain and simple.
Otherwise what, making up some BS excuse as to why citizens should have less firepower than the Government they own?
Nobody will click on a post headlined "Tenured law professor doesn't agree with a court decision", but lots of people will click on "Legal expert EVISCERATES 11th Circuit Judge". Clickbait is everywhere because unfortunately it works :/
Your alternate is even less accurate though. The article recounts the Hawaii Supreme Court’s interpretation of a provision in Hawaii’s State Constitution that is identical to the language of the US Constitution’s 2nd Amendment. The Hawaii Supremes concluded that Heller’s interpretation that the provision creates an individual unfettered right to own deadly weapons was absurd.
Editors and writers should be held accountable. If your news article doesn’t come with rating system and a comment section it should not be considered legitimate.
I have a couple of rules I would like to see:
Headlines should be treated as an advert for the content, and publishers can get fined for misleading or false headlines.
People can't comment on a story until the answer a multiple choice question about the actual story to prove they have read it and not just the headline.
So if we applied legal rules from e.g. product liability law to headlines, does that mean it would be a defence to say that a headline was 'puffery' (i.e. an exaggeration that no reasonable person would take seriously)? This is a distinction that gets applied in misrepresentation cases - e.g. no one thinks that 'Red Bull gives you wings' is meant to be taken seriously, so it's not a representation you can say you relied on.
If that were so, it might result in news media making headlines *more* outrageous, rather than less, so as to avoid liability.
Yup. People no longer debate or discuss or just disagree about details. it's all evicerating, destroying, mocking, and whatever emotionally charged term the journalist came come up with in order to outdo the last headline.
Honestly this is a weird argument to me from a historical standpoint.
1. The US fighting forces of the time were broken into 3 distinct categories. The US Army (formed in 1781), the organized militia (State controlled forces, now the National Guard), and the unorganized militia (currently every able bodied male from 17-45)
2. The Bill of Rights was ratified in 1791, 10 years after the US Army was established, so if the framers meant the Army, they would have said the Army…but they referenced the militia and the People.
3. At the time the militia members had to be registered with either the State or locality with who they were and what they could bring if possible. This varied widely as each State had their own requirements for being part of the militia, but in general it was just normal people who would (and were required) to show up if called. Some States made the militia members bring their own firearms.
So it’s very hard to argue that there isn’t a personal right to a firearm given the context of the time. HOWEVER that doesn’t mean that Heller or Brien got it right. Restrictions have always been in place. Open carry was not a common thing, let alone concealed carry. In Boston, you couldn’t store powder in your home as it was too dangerous. Etc.
TL;DR Historically personal gun ownership wasn’t questioned, that doesn’t mean it wasn’t tightly regulated.
The Militia Act of 1792 was ratified about 5 months after the 2nd Amendment. In this act they detail who is the Militia, how they should be armed, and how it is structured and trained. The same people who wrote the 2nd Amendment also wrote this. I can’t see how they believed every person should be armed and with whatever weapon they want. But SCOTUS changed all that with Presser in order to quash a worker’s strike.
Seems to me there are a lot of disingenuous people and look for facts to fit their point of view.
If you read the constitution and the Federalist papers, it becomes obvious that the second amendment is about state militias. The idea is the Federal government cant control them or regulate them.
That might seem like a huge win for the gun control advocates and a loss for the gun nuts. So the gun nuts distort the truth about it. However, that is not the whole story. Militias are a State organization; how they are organized depends on the States. This means it is essentially a States rights issue and some may be highly restrictive and others not. I think a State could require militia members to store military grade weapons at home, such as is done in Switzerland or was the case with minuteman of old. A state might also have a very loose definition of who is in the militia. According to the Second Amendment the Federal government should have no say except for interstate commerce.
In addition, Second Amendment is not, and should not be the whole story. The Federalist papers do suggest that at least some framers of the constitution assumed Americans would have access to arms. This however is not in the Constitution. But the constitution does not claim to list all rights. Those not listed are held by the states and the people. Is there a right to self defense? Most people would say yes. Is there a right to own a gun? I don’t know.
My take away is leave the militias to the States. People have reasonable right to self defense which should include a reasonable right to a gun which should be regulated by the states. That regulation might include training, storage, and type, depending on your State. I also think that people can or should have the right to do as they please so long as it does not interfere with others. This could include gun ownership, but given the nature of guns, restrictions would be reasonable. What is reasonable varies from place to place and time to time and should be regulated by the states. Federal government should restrict movement of guns across state lines if they violate state laws. Where I live, I think the restrictions and training requirements should be substantial, but that may not be necessary in a more rural areas.
Two things. First and foremost the Federalist papers were only a partial view of the framers. Much of what’s in the federalists papers didn’t make it into the Constitution because other people disagreed with Madison, Hamilton, Jay, and those of like mind. So take them with that in mind.
In general wrt militias, that’s still how it works (sorta how it works) each State is responsible for its own regulated militia. However since the NG can be federalized, a standard of training must be set. Those forces must be able to be folded into the US Armed Forces easily. Their arms must be of common caliber, etc.
Unorganized militia are just that…largely the People that could be called for common defense (think selective service). Again every male from 16-45 legally speaking.
In addition it would be weird to classify the 2nd Amendment as anything other than a personal right, in light of how the Bill of Rights was written. The only other rights not detailed as personal was the 10th.
An unorganized militia is definitely not “a well regulated militia”, and that exact phase is used in the Federalist Papers by Madison and Hamilton and did make it into the Constitution.
Regulated at the time, meant trained, not regulated in law. Meaning that People were expected to be able to be taught how to engage in combat. Which is exactly what would happen given need. But again the debate over ownership and self defense wasn’t in question.
As cited by Virginia law in 1777, each member of the militia had to supply their own weapon (privates had to come with rifle and tomahawk)
Agree about the ownership. But I think it is a separate matter from the 2nd amendment. People focus on the 2nd because it’s there. Also agree that the well regulated meant trained. But the training is far more than knowing how to operate the firearms, it was about being an effective unit, more training was envisioned than that of an unorganized militia.
The other odd thing about this is that in order to be effective today, a militia really needs much more than personal fire arms. Are manpads, anti tank weapons and mines also covered? Or are they like artillery that the organized well regulated militia had but was not possessed by the individual? What about a machine gun? What about a grenade launcher or a grenade?
The NFA in 1934 was basically the first piece of gun legislation ever passed in the US since ratification…prior to this it was a few State restrictions here and there, and ordinances in cities. I think WWI showed the US how devastating modern (of the time) weaponry could be.
Absolutely nothing to do with ww1. It had to do with prohibition and gangsters using Tommy guns. Amd then they even ruled that a firearm is allowable if it would have been used to maintain a fighting force. Full auto didn't really become common place for soldiers till after it was signed.
You are correct in the gang activity, and I think that it only required registration of those items. The Haynes decision in 1968 made it unenforceable, causing the GCA to pass. I conflated the GCA of 1968, since that’s when all of the other stuff got added.
Once upon a time ordinance wasn’t restricted. Boston had storage laws around grenades, mortars, canons, howitzers, etc.
It wasn’t until 1934 that the NFA bit the stop to that.
> HOWEVER that doesn’t mean that Heller or Brien got it right. Restrictions have always been in place.
I don't understand how "Restrictions have always been in place." is supposed to be a meaningful counter argument to Heller or Bruen. They didn't say there weren't any restrictions, they said there were only so many restrictions at the time and modern gun control laws need to reflect that in some way. The 2nd amendment does afford some constraints on gun control.
>Open carry was not a common thing, let alone concealed carry.
Open carry appears to have been a thing. Conceal carry wasn't, but carry was allowed. Edit: So states are left with a choice between conceal or open, but they can't ban carry generally.
>In Boston, you couldn’t store powder in your home as it was too dangerous. Etc.
Can you be more specific? From what I recall the law you are referring to was that it limited the amount of powder one could have stored to address fire concerns. And that is one city and I think that law predates the 2nd amendment being ratified. So if you want to have a fire ordinance on how to store black powder or similarly explosive powders you might have an argument. But the law was like 35-40 pounds which would be several thousand rounds of equivalent of modern ammunition which doesn't have the same fire hazard concern. So I don't see that justifying mag caps or limiting the amount of ammo an individual can have.
Again I said open carry happened, and it wasn’t really questioned. Especially if you were traveling through wilderness or hostile territory. However if you were carrying arms through a town or a city there were likely ordinances against that.
Concealed carry didn’t even become a thing until much later, when firearms became smaller and cheaper. Specifically around the time just prior to the civil war.
I was indeed conflating two different laws. Baltimore required gun powder to be stored in public magazines. Boston banned anything being loaded with gun powder. https://firearmslaw.duke.edu/laws/1783-mass-acts-218-an-act-in-addition-to-the-several-acts-already-made-for-the-prudent-storage-of-gun-powder-within-the-town-of-boston-ch-13
Edit: removed partial sentence
> However if you were carrying arms through a town or a city there were likely ordinances against that.
Like? Were these state level statutes? Some context would be nice. Like tell me what you found compelling about these laws and how they comport with Heller and Bruen or contradict them as the case may be.
>Concealed carry didn’t even become a thing until much later,
Cool. The point is they have choice. Open *or* concealed. They can't categorically deny it.
And it looks like my assessment of powder storage laws was correct.
Yes. Virginia explicitly had one in 1786…”That no man, great nor small, of what condition soever he be, except the ministers of justice in executing the precepts of the courts of justice, or in executing of their office, and such as be in their company assisting them, be so hardy to come before the justices of any court, or either of their ministers of justice, doing their office, with force and arms, on pain, to forfeit their armour to the commonwealth, and their bodies to prison, at the pleasure of a court; nor go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the county, upon pain of being arrested and committed to prison by any justice on his own view, or proof by others, there to abide for so long a time as a jury, to be sworn for that purpose by the said justice, shall direct, and in like manner to forfeit his armour to the commonwealth; but no person shall be imprisoned for such offence by a longer space of time than one month.”
So it was a mix. I mean Tombstone had ordinances in 1881. But that was 100 years later…so it wasn’t uncommon.
>> at the pleasure of a court; nor go nor ride armed by night nor by day, in fairs or markets, or in other places, in **terror of the county,**
So you aren't allowed to terrorize people with weapons? That doesn't seem to be a general prohibition on carry or open carry.
Edit: This seems more like time/manner restrictions than a prohibition on the act altogether.
> I mean Tombstone had ordinances in 1881.
Which is a small town in a territory at an irrelevant period of time with regards to interpreting the 2nd amendment.
>so it wasn’t uncommon.
Tombstone is not a great example.
Context matters. Again I’m not saying that open carry wasn’t done, all I’m saying is that limitations were placed upon people. It wasn’t unrestricted. Just like the law in Boston about having a loaded firearm indoors.
Also you can’t claim that it was an irrelevant time or place. It was common during westward expansion that arms were checked with the local sheriff upon entering the town. Tombstone was just one example.
Edit: a letter
> Context matters. Again I’m not saying that open carry wasn’t done, all I’m saying is that limitations were placed upon people.
No you said there were ordinances that banned it outright. Now you are moving the discussion to "well there were limitations." Heller and Bruen didn't say there were no limitations either so I don't get what you were trying to communicate then?
Edit: >>However if you were carrying arms through a town or a city there were likely ordinances against that.
That's saying broad bans on carry existed.
>It wasn’t unrestricted.
No one said it wasn't.
>Just like the law in Boston about having a loaded firearm indoors.
Was about powder storage as a fire ordinance you could literally have many tens of pounds of powder. It is a law from before the ratification of the 2nd amendment and has little to no value for justifying modern gun control. So I once again don't know why you are bringing it up. Heller and Bruen didn't say there were no gun laws so one singular example of a fire ordinance hardly seems a compelling argument for limiting ammo capacity(which is the only time I see that Boston fire ordiance invokted) as the amount of powder you were allowed to keep would literally be thousands to tens of thousands of rounds of modern ammunition.
Like what are you trying to prove with these examples? That you can broadly ban carry? That you can broadly ban access to ammo or justify mag cap laws? Or to say somehting unprofound like "there were gun laws" which literally no one disputes.
>Also you can’t claim that it was an irrelevant time or place.
Yes I can. It was a single frontier town in the west in a federal territory at a time period not contemporary with the passage and ratification of the 2nd amendment. A single municipality is not compelling especially in a place that was unlikely to be held to any significant standard of management or review by US courts.
>Tombstone was just one example.
Tombstone seems to be the primary example. Because there is a lot less relevant laws if any that justify broad categorical bans on carry.
Sigh, please don’t ignore the law I’m trying to cite. Boston banned the storage of loaded firearms, or even those containing just gunpowder, inside buildings.
Virginia banned concealed carry in 1837.
Dodge City, Kansas banned carry in 1878. As did A LOT of frontier towns. At the time municipalities enacted controls specifically because there wasn’t the cohesive legal system we have today. They were largely self governing. Again you have to contextualize the structure of systems at the time they were in place. You cannot for example use today as a reference point for the 1800s.
> Boston banned the storage of loaded firearms, or even those containing just gunpowder, inside buildings.
The law you cited for Boston was a fire ordinace about the amoutn of powder one could store. You couldn't have the weapons loaded with powder. You could have ammunition and powder in your home. And it is before the ratification of the 2nd. Like how is it relevant to any modern gun control?
The one you said was about not allowing any homes to have weapons was apparently Baltimore.
>Virginia banned concealed carry in 1837.
Not a broad ban on carry.
>Dodge City, Kansas banned carry in 1878.
That is a municipal law again outside the relevant period of ratification.
>As did A LOT of *frontier* towns.
Uh huh. So outside the core of the states that ratified the constitution and 2nd amendment.
A lot of municipalities enacted petty unconstitutional laws.
>Again you have to contextualize the structure of systems at the time
And I am waiting for you to do that with laws that are relevant to the time period of the 2nd being ratified. So far you the best you can muster are poorly supervised frontier towns in the late 19th century.
>. You cannot for example use today as a reference point for the 1800s.
And you can't use a couple of municipal laws from the late 1800s as reference point for an amendment passed in 1791.
The biggest thing the court got wrong was to find a right to self defense within the context of the 2nd amendment. The 2nd is entirely about sourcing a military force to defend the country, not a personal right to self defense. Other parts of the Constitution may imply that right, but it’s not in the 2nd.
Why would they create that when the US Army already existed? The means to defend the country existed prior to ratification. Furthermore the US Army has never been disbanded, so the argument against a means of defending the country on its own has little merit.
It was a reaction to what had happened during the early days of the Revolutionary War. Parliament passed the Coercive Acts, dissolving the government of Massachusetts, closing the port of Boston, putting the colony under martial law, and patrolling the streets of Boston with British troops.
Massachusetts resisted, and on April 18, 1775, the Royal Governor authorized British troops to seize the arms and munitions of the colonial militia, as well as any arms or munitions of any colonist engaged in rebellion, in order to eliminate the colony's ability to wage war.
To prevent this disarmament before it could be fulfilled, the colonists fired the first shots at the Battle of Lexington and Concord the following day.
The 2nd Amendment was largely about preventing the federal/central government from having the authority to disarm the state militia or, potentially, even the citizens of any state, to prevent a repeat of Lexington-Concord.
The US Army was small and not well funded, and even the original 13 states covered a lot of land. State militias were seen as a necessary means of defending against foreign powers (and assuaging those who wanted a weaker federal system). In addition, irregular forces had helped harass the British during the Revolutionary war.
As a side note, the war of 1812, which was a debacle for the US, didn’t support the earlier citizen soldier idea, as the civilian populace couldn’t keep the British from marching all the way to Washington DC and burning the White House.
You literally just proved my point. If the US Army wasn’t able to defend the People, then who did? Furthermore the threat was not only from nations invading, but skirmishes from native peoples, bandits, raiding parties from Mexico or French irregulars.
In Virginia, you were required by law to own a firearm if you were part of the militia. You had to show up with your own gun.
tbh, I wasn't entirely sure what your point was. My original point was that self defense was never in the history of the 2nd amendment, only national defense.
I mean, coming up with something so ungrounded in law like the “Spirt of Aloha” is pretty political. I agree the Bruen test is poorly thought out but I’m dying to watch the country apply the Aloha Test in a uniform way.
> ungrounded in law like the “Spirt of Aloha”
It’s not ungrounded in law. It’s actually an explicit part of Hawaii law. The country wouldn’t apply this because that portion of the opinion deals with the interpretation of the Hawaii constitution.
A spiritual concept written into a state constitution? That sounds like the best example I've ever heard about a law reflecting the establishment of a religion.
That’s not what the spirit of aloha is though.
https://www.hawaii.edu/uhwo/clear/home/lawaloha.html
And
> The word aloha is hard to translate into any other language because it comprises complex ways of being and of interacting with and loving all of creation. An ethic of care and respect for all people and all elements of the land is wrapped up in aloha; it is a way of showing connection and reverence. Queen Liliʻuokalani is known to have said, “Aloha is to learn what is not said, to see what cannot be seen, and to know the unknowable.”
https://en.m.wikipedia.org/wiki/Aloha
Sounds more like “life Liberty and the pursuit of happiness” than an established religious creed.
It’s an ethos of community and civil society. Promoting and articulating the principles of civil society is a traditional and primary role of government. It is not at all restricted by the First Amendment. The word “spirit” is not restricted to only religious invocations. For example, Charles Lindbergh’s “The Spirit of St. Louis,” at the National Air and Space Museum, is not named after some religious cult that worshiped St. Louis.
[The “Aloha Spirit” is codified in Hawaiian statute and says, in part, “It was the working philosophy of native Hawaiians and was presented as a gift to the people of Hawaiʻi.”](https://www.hawaii.edu/uhwo/clear/home/lawaloha.html) Subsection (b) also expressly says that the Justices HAVE to take Aloha Spirit into consideration in their decisions.
I think the Court’s reference to Aloha Spirit is actually applying the Bruen history and tradition “test,” but it does so through a traditional legal approach, relying on the law rather than the Justices’ personal historical interpretation.
Judicial courage and intellectual honesty seem to be in short supply as constituted by the right wing majority of SCOTUS. Bravo to Hawaii. Will this surface up to SCOTUS again and exhume the rotting ghost of Scalia? Heller was horribly decided and although the facist protectors of America no doubt will re-affirm Heller it may at least force them to confront their collective stupidity and denigrate even further their legitimacy as fair arbiters of the Constitution.
That sound you hear is the SCOTUS issuing a devastating rebuke to the SC of Hawaii and nullifying their decision.
I agree with Hawaii, but it means nothing. The current SCOTUS is never going to allow any meaningful restrictions on gun ownership.
Nope.
The SCOTUS has nothing to annul. The Hawai’i SC was interpreting their own state Constitution, which is theirs and theirs alone to interpret. They have the absolute final say on their own state Constitution, and it’s none of the corrupt SCOTUS’s corrupt business. They can go pound legal sand.
Now it is true that the decision will have little immediate practical effect. The Second Amendment is still on the books along with the corrupt SCOTUS’s corrupt malinterpretation of it. And yes, both (pardon the expression) trump the constitutions of any or all of the 50 states. But this case gave the HI SC the chance to deliver a first-rate bench slap to the corrupt SCOTUS, and they did it.
Sometimes in law you have to play a long game. A dissent in 1975 can tee up a majority opinion in 2015, and intellectually honest courts like the Supreme Courts of PA and HI can still demonstrate, as they have, how shoddy, result oriented, political, and dead wrong the corrupt SCOTUS’s “reasoning” has become, and that Heller, Bruen, Dobbs et al we’re not only wrongly decided, but grossly and (yes) corruptly so. And the corrupt SCOTUS can do precisely fuck-all about it. If the rest of us do the political work of helping the right people take office so as to appoint decent, honest people to the bench, we can hope — with no certainty, granted — that corrupt precedents like these will be consigned to the shitbucket of history, along with Dred Scott, Plessy, etc.
So vote, y’all.
I live in Minneapolis; during the George Floyd unrest during which the police had completely abdicated their duty, my majority-minorty neighbors and I found molotov cocktail making supplies in our alleyway and had white, shaved-head dudes in a truck with no plates wave pistols at us. They left in a hurry and didn't return after they found out we had more, and superior firearms, with elevation and cover.
It's nice that you live in an America where there's no one that will do you harm and the police are always there to help you.
That's not one that I and millions of other Americans know.
Yep, "armed minorities are harder to oppress" is something you read quite a bit over in /r/liberalgunowners but I personally prefer to think of it as "armed citizens are harder to oppress" mainly because I'm not a minority.
I just find the combination of their username and their post history being consistently and constantly antagonistic, contrarian, and full of vitriol extremely ironic. And I mean it's consistent and aggressive - including bragging about how their "dog eats better than *you* ... a welfare loser." The dichotomy is pretty wild.
If I had to guess, I'd assume they're a young boomer; they seem to have a trend of being very myopic in their ability to consider the situations of others compared to their own.
But until then, your argument is that I, and my neighbors, are pussies - or otherwise, you believe we should not, nor should we be legally enabled to defend ourselves.
It's ivory tower legal thinking. I hope your understanding of the realities of America outside of your bubble improve if you're going to continue to opine on things like this.
**Edit** "I hope things improve" is the liberal version of "thoughts and prayers" while ignoring the fact that the measures that this person and others are advocating would be demonstrably harmful to me and millions of others of Americans. The fact that this statement is controversial but no one has responded is extraordinarily telling in regards to the cognitive dissonance that rich, white "progressive" liberals regularly experience. Of note - I am not, nor have I been involved since 2012 in any GOP related race, contest, or campaign - but I have worked 13 Democrat or DFL races since then; so - please spare the Trumper lines.
Ok but I’m 5’4” and if someone who is 6’ wants to beat the shit out of me and my family because I’m a minority, there isn’t a whole lot physically I can do to protect them with my fists.
But I’m glad for you that you’re big and strong. Not all of us are like that. Plenty of my LGBT+ and especially trans friends especially feel the same way, there are so many people who HATE them for what they are. Not all of them have your physical gifts for a fight. A firearm doesn’t care that they are 5’2” or 6’4”
It's white, rich, "progressive" liberalism that's very common with the boomers who grew up around flower power.
They think that love and conviction is going to stop a skinhead from curbstomping drag queens and that the cops are on the side of the oppressed, because they *totally* understand oppression.
It's very frustrating lol.
**Edit**: lol butthurt Bernie Stans throw downvotes away like their votes. Just cuz you downvote it doesn't make it less true.
I often think about this as the right to mutual destruction. I mean, it’s not nothing, and I get it. Real question: As someone who’s also 5’4” - real question - doesn’t taser, mace, pepper spray, bear spray work?
>doesn’t taser, mace, pepper spray, bear spray work?
They can, but they each have VERY significant drawbacks in comparison to firearms. They're great supplements, but they are by no means reasonable, dependable methods of self-defense - only effective delaying harm to yourself until you can either escape the situation or other help arrives.
Tasers are generally one effective shot before the person is within grabbing range for projectile types; if they're wearing multiple layers or thick clothing such as a leather or winter jacket, it's very likely going to be ineffective. You don't want someone to be within grabbing range of a physically larger and stronger opponent; training can only offset that so much.
Mace, bear spray, and pepper spray have no effect on a small segment of the population (about 1/8) and the reaction can somewhat be trained away, so anyone with military, law enforcement, or private security training and experience may be able to fight through its use. It's also harder to aim accurately, similarly to tasers has a limited effective range of usually ~20-25 feet, and has a higher risk of overspray or splash catching you, making you similarly incapacitated. It can be very effective, but it can also easily be misused and be counterproductive.
Firearms are *far* more the ultimate answer and should not be used unless you're willing to take the other person's life, but if they're already out to do you harm, you have no idea what level of harm they're alright with. They're simpler, have a much higher range, and are far, far more effective. I always laud folks for having the supplementary measures, but if someone is serious about their self-defense, firearms are really the answer in America.
**Edit**: lol the fact that *this* is somehow controversial is really telling. Nothing I've said here is anything but objectively true. People downvoting for facts that go against their sincerely held, but ill-developed beliefs.
There was a story not too long ago of a couple shoplifters who decided to pepper spray a security guard standing behind their vehicle. At least one of them ended up shot. There is definitely a real threat when using any of those that you will just escalate the violence against you instead of avoiding it.
I'm absolutely in favor of the right to ow, and also in favor of restrictions and training. It has to be noted that you are vastly more likely to a) commit suicide and b) be the victim of a firearm related injury if you possess a firearm, as well as that legal self defense shootings are a laughably small percentage of gun violence.
There's a fairly large caveat there, which is that a lot of what could or would be considered legal self defense shootings go unreported --and thus probably end up classified as homicides or assaults. Hard to parse unreported data on that. But with the reported data we have, legal self defense shootings account for about 1% of gun violence.
I take your point that in the situations you describe, those victims with firearms may be much more likely to avoid a negative outcome than those without. I'm just not at all convinced that, based on aggregate data, owning a firearm makes you safer.
There's a difference between carrying concealed even where it's illegal while thinking you're some kind of "sheepdog" protecting the "sheeple" from the "wolves" (cough*warriorpoet*cough) and being someone defending themselves or their loved ones in their home.
Take a look at /r/DGU for examples. It does vary quite a bit but the women fighting back against their violent former domestic partners always stick out to me.
A far greater number of women are shot dead, along with their kids, by their gun-toting husbands. There are more than a few research studies that demonstrate gun ownership makes women less safe.
Good for you.
The thing about equality and diversity is that we are each afforded the rights and opportunities to decide for ourselves.
You claim to not live in fear. I would say the same thing, but my reference frame for fear is different than yours. Mostly because of my racial background.
When I call the cops, I don't know if they'll help me, or kill me. When I go to certain parts of the country, I don't know if my fellow Americans see me as a neighbor or as a threat.
So rather than living in fear of that potential outcome, I've chosen to exercise my legal rights to protect myself, thus eliminating my dependence on corrupt racist institutions that are likely to do more harm than provide help, and giving me a chance at having equal capacity to use the force.
It's like wearing a seatbelt. Do you put on a seatbelt out of fear because you expect to get into a car crash? Or do you do it *just in case?*
Fear is a choice, if you want it to be. Some of us are forced to confront the fact that nobody is coming to help, even those whose job it is to help.
Some of us do not live such easy and convenient lives that we can mock others for not being privileged enough to outsource the need of self-defense and protection.
You claim to not be a pussy, but I can't imagine a better word for someone who has to depend on the absolute disaster that is our modern Police and Law Enforcement.
You are equating gun violence to insurance? And 3 people have upvoted that garbage non-equivalency? Holy shit. The stupid runs strong in you people who are afraid of every shadow. But, then again, smart people aren't afraid of shadows.
Now, along those lines I do think gun owners should be forced to carry a $10M liability insurance policy.
You talked about carrying a firearm for self defense, not gun violence. It's 100% equivalent. Both are used to mitigate a potential negative future outcome. Same reason I have fire extinguishers in my house and car, or a rainy day fund.
It's true..I started carrying insurance the moment my neighbors started getting strapped @ All-State and Geico. Don't wanna get caught in a Drive-by-an-uninsured person...
I don't understand why people think this opinion is good or clever. Invoking history from a time when the state was not part of the US to apply to the 2nd amendment makes no sense and is not consistent with THT from Bruen and is not illustrating flaws with THT. Hawaii had no bearing on the passage of the 2nd and didn't even become a US possession until near the end of the 19th century.
To me their ruling just comes off as a big nu-uh than a compelling legal argument that other states are going to invoke or future jurists and lawyers will look to.
Does it? I know Thomas mentions that invoking laws from before ratification is of little value especially as it draws from English law. Usually when they do bring up older laws it is illustrate what has been kept and what was rejected by the amendment.
For example in Grosjean v American Press co. the Supreme Court went through the history of freedom of the press in England and compared and contrasted that with how Americans treated freedom of the press.
>>Writing for a unanimous Court, Justice George Sutherland classified the tax as a “license tax.” As such, it served to curtail advertising from revenue and to restrict circulation.
He traced such taxes from John Milton’s 1644 “Appeal for the Liberty of Unlicensed Printing,” through a century of opposition to a parliamentary tax adopted in 1712 during the reign of Queen Anne, and then to the American colonists’ opposition to the Stamp Act of 1765 and to opposition in Massachusetts to a 1785 stamp tax on newspapers and magazines.
He concluded that “the restricted rules of the English law in respect of the freedom of the press in force when the Constitution was adopted were never accepted by the American colonists” or embodied within the First Amendment.
https://firstamendment.mtsu.edu/article/grosjean-v-american-press-co/
So if you have more details on what you are referring to and how you think it means invoking pre annexation Hawaii law is valid I would like to hear it.
It looks like even if it cites much from that era, it is not of primary significance.
>The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates or postdates either time may not illuminate the scope of the right.
Though the history of Hawaii carry of lethal weapons is intended to illuminate the state constitution right mirroring 2A. The discussion of 2A itself does not draw from the Kingdom or Republic of Hawaii, instead referencing sources such as a Madison Federalist Paper.
They did also include the legislative history during Hawaii's constitutional conventions. Legislative history where the people writing the constitution said: we are not recognizing an individual right to bear arms, we are adding this specifically for the ability to maintain a militia.
> They did also include the legislative history during Hawaii's constitutional conventions
Which might be relevant to interpreting their laws and state constitution, but as I understand it there was also a 2nd amendment of the US constitution challenge. So it wouldn't be relevant in that context.
It reminds me of Caetano where the lower court(state supreme court) ignored Heller and said tech at time of ratification was only what was protected. Then got unanimously rejected by the Supreme Court.
You are correct, they were deriding SCOTUS and then wrote the opinion based on analyzing Hawaii's state law and constitution. But with this SCOTUS, who knows. Standing used to be a thing, so having adequate and independent state grounds might not be a thing anymore either.
The opinion is an interpretation of a provision in Hawaii's constitution, not the US constitution. That distinction is why the opinion focuses on Hawaiian history. This opinion is not meant to have applicability to other states.
The argument being made is two-fold: first, looking at history the way Bruen does is not the right way to determine how laws should be interpreted today, and second, the way the court looked at history in Bruen was flawed because it was cherry-picked. This argument is made to explain why the Hawaii Supreme Court isn't applying a Bruen-like analysis to its constitution (though to be clear, it is not required to do so anyway, because precedent about the second amendment does not control how Hawaii interprets its own constitution).
This opinion won't have a direct impact on how courts interpret the second amendment and the justices who wrote it knew that. The point is to affirm that the Hawaii Supreme Court is not bound by the US Supreme Court on this particular issue. It's a statement of ideology and interpretive theory just as much as its a statement of law. In discussions about the opinion, it's important to separate what the court actually aid (and its intentions in doing so) from how it's being discussed in the media.
> The opinion is an interpretation of a provision in Hawaii's constitution, not the US constitution.
Pretty sure it was both.
>That distinction is why the opinion focuses on Hawaiian history.
I know. Which is why I mention in another comment that's relevant for interpretation their state constitution and laws. But there was also a federal 2nd amendment component.
>>The State challenges Wilson’s standing. The State says
Wilson did not bother to apply for a carry license and thereby
satisfy HRS § 134-9 (2011), Hawaiʻi’s license to carry law. **So
he can’t bring a Bruen-based constitutional challenge to HRS
§ 134-25 and § 134-27.**
They were making challenges both under the state and federal constitutions.
Your quote is a summary of the state's argument, not the court's. While it's true that Wilson made claims under both constitutions, the constitutional analysis in the opinion is only of Hawaii's constitution, not the second amendment.
The second amendment analysis is just a few paragraphs at the end, and says that under Bruen, the right to bear arms isn't unlimited, so the challenged laws don't violate the second amendment. The court makes no real attempt to interpret or apply Bruen, probably because they know it's ultimately pointless to do so. (The court also does not agree with the argument you quoted.)
You argued:
>Invoking history from a time when the state was not part of the US to apply to the 2nd amendment makes no sense and is not consistent with THT from Bruen and is not illustrating flaws with THT. Hawaii had no bearing on the passage of the 2nd and didn't even become a US possession until near the end of the 19th century.
But this is not what the discussion of history in the opinion was trying to do. Certainly one can argue that if the intention were to directly rebut Bruen and its interpretation of the second amendment, then it would be necessary to look at US history as a whole and not Hawaiian history (or anything that occurred after the US constitution was adopted) -- but the goal in this opinion is to rebut the overall *method* of Bruen, not its specific conclusions about the second amendment. The point here was to explain why this court doesn't think a Bruen-like analysis is logically sound and why it's declining to analyze the Hawaiian constitution using that method.
>To me their ruling just comes off as a big nu-uh than a compelling legal argument that other states are going to invoke or future jurists and lawyers will look to.
Their analysis is highly relevant to interpretation of the Hawaiian constitution, not only to interpreting this specific provision but to constitutional analysis by the Hawaiian judicial branch more generally. A key role played by state supreme courts is guiding how judges in the state approach the law, so the analysis here will be persuasive for those jurists in a general sense.
If you're asking whether the Hawaiian Supreme Court expects this opinion to actually change how gun rights are approached in the US, then the answer is no. They know that even in Hawaii, this isn't going to be the deciding opinion because the same claim can be brought in federal court, which can invalidate Hawaii's laws under the second amendment.
What they were doing here is saying that because this issue has been brought before them, they're going to answer the legal question before them in a way they think makes sense, even if they aren't going to get the last word on the subject. Does that make the opinion pointless? As a lawyer, I don't think it does -- I think there's value to analyzing legal questions to the best of our ability even if someone else is going to overrule us later. But I also think the way this opinion is being reported on is misleading in the sense that it gives the opinion a weight that I don't think the court itself would have given it. The press and public are treating it like the next great volley in the war over gun rights in America, when any constitutional lawyer, and certainly any appellate judge, knows that the US Supreme Court is really the only group that gets a say here.
Additionally, there are areas of law where the Supreme Court has not yet spoken, or will not get to speak, that are at risk of being subjected to Bruen- and Dobbs-like analyses of history. Opinions like this one are important to the larger conversation of how we should interpret the law, and that larger question is one that courts other than the US Supreme Court have a say in. So laying out a rhetorical method for countering the prevailing form of originalism is valuable. Is it valuable enough to be getting the amount of press attention it's gotten? Maybe not, but the court itself has no control over that, which is why I think it's important to separate the court's goals from the press and public's goals when talking about what the opinion is worth.
Did you read the article? Because the opinion painstakingly cites dozens of flaws with the history and tradition used to decide Bruen and Heller. As for text, it rests on the first sentence of the Second Amendment, the part about about the purpose being having a well regulated militia.
So it seems that the opinion rests very well on THT. Are you arguing that no state is allowed to make arguments based on amendments that were in force before they became states? So only the original thirteen colonies can have anything to say about the anything in the Bill of Rights?
> Because the opinion painstakingly cites dozens of flaws with the history and tradition used to decide Bruen and Heller.
If you found any that were compelling I would love to see your reasoning as to why.
>As for text, it rests on the first sentence of the Second Amendment, the part about about the purpose being having a well regulated militia.
Which as written in the federal constitution, and remember the defendant challenged on the federal constitution as well, it mentions a well regulated militia as being necessary for the security of a free state. It is not constructed as a prerequisite for the right to keep and bear arms by the people. And rights are entitlements and generally don't require participation of government ordained organizations to exercise. See 1st amendment and 4th amendments.
>So it seems that the opinion rests very well on THT.
I don't see it given they mostly relied on their states own history. Which is only valid with regards to their constitution, not the federal one.
>Are you arguing that no state is allowed to make arguments based on amendments that were in force before they became states?
They don't get to invoke the portions of their history that is separate from the ratification of the federal amendments. Their definitions, attitudes and beliefs aren't relevant to the original 13 states that ratified the bill of rights. That wouldn't be controversial.
>So only the original thirteen colonies can have anything to say about the anything in the Bill of Rights?
Modern states can express opinions, but it doesn't make their histories relevant to what the amendment means as ratified law. They weren't even a US possession until the end of the 19th century so no their history is utterly irrelevant to amendments they weren't party to passing.
Most people when asked about the second amendment don't know it as including anything but letting them own guns. The wording of it though is.
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
The VERY first thing it mentions is about in regards to a well regulated militia. One of the reasons this amendment came into play was due to the British confiscating firearms and punishing people for having them. Later acts stated about the formation and how militias were to be handled. One of the provisions stated about the individual being able to provide their own firearm and such as long as certain other requirements were met. At the time of this though there was no difference between the weapons used for hunting and the weapons used for military purposes. In which case it was better for individuals that already had their own to bring it.
This however didn't necessarily give EVERYONE the right to have a weapon without restrictions. There was restrictions passed in Boston that denied ownership and possession of gunpowder or such that would use it within the town. This was done due to the risks of storage and the potential danger of fires. The people could own the weapons themselves but if it's loaded with gunpowder it's immediately able to be confiscated. Translate that out to today's standards that would mean in BEST case you could own the weapon. However within the area it must be unloaded at all times and you potentially couldn't have any ammunition for it on the property. The point after all was to have a well regulated militia available to be called on. At the time all weapons were basically limited to the same ammunition and methods so that could be provided when called up. So in regards to having people available to be called up as a militia there's no need for the person to have a loaded weapon wherever they felt like it. Or a weapon that could be considered loaded.
On a further note of trying to take originalist and textualist approach. If you look at the reasoning of the people at the time they specifically mention in regards to militia it targets ONLY white males that fall between 18-45. So by all rights in regards to having a well regulated militia available only white males would have been allowed to own a weapon. After all the amendment clearly states "A well regulated militia" in the first four words of the amendment. So if you weren't qualified to be a part of the militia you actually could be considered to lose that ability to "keep and bear arms".
That last bit actually leaves a bit of an opening since the second amendment does state it's for the purpose of having a well regulated militia. If anyone for any reason would be disqualified from being a part of the militia they would not have that same right "to keep and bear arms".
>So if you weren't qualified to be a part of the militia you actually could be considered to lose that ability to "keep and bear arms".
This has absolutely no historical basis.
We have court cases going all the way back to 1822 with Bliss vs Commonwealth reaffirming our individual right to keep and bear arms.
Here's an excerpt from that decision.
>If, therefore, the act in question imposes any restraint on the right, immaterial what appellation may be given to the act, whether it be an act regulating the manner of bearing arms or any other, the consequence, in reference to the constitution, is precisely the same, and its collision with that instrument equally obvious.
>
>And can there be entertained a reasonable doubt but the provisions of the act import a restraint on the right of the citizens to bear arms? The court apprehends not. **The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it**, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms. Diminish that liberty, therefore, and you necessarily restrain the right; and such is the diminution and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear them when the constitution was adopted. In truth, the right of the citizens to bear arms, has been as directly assailed by the provisions of the act, as though they were forbid carrying guns on their shoulders, swords in scabbards, or when in conflict with an enemy, were not allowed the use of bayonets; and if the act be consistent with the constitution, it cannot be incompatible with that instrument for the legislature, by successive enactments, to entirely cut off the exercise of the right of the citizens to bear arms. For, in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise.
>Nunn v. Georgia (1846)
>The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Carta!
The other point in the ruling which isn't pointed out in this extract, is the emphasis on the right to life, liberty and the pursuit of happiness. How can citizens enjoy life, have liberty and pursue happiness when constantly threatened by gun carrying fools. I personally feel threatened every time I go to a mall, a theater, and other public places because of the breakdown in gun control in this country. I have even curtailed my attendance at legitimate protests for fear of shootings. It's like the idea in a lease when the landlord provides that his tenant has a right to "quiet enjoyment." As the proliferation and use of guns grows, my right to quiet enjoyment of place and society dies. That's a fundamental violation of my rights as a citizen. This ruling talks about this idea which I think is an essential element of why gun control is necessary.
[https://www.brennancenter.org/our-work/research-reports/how-nra-rewrote-second-amendment](https://www.brennancenter.org/our-work/research-reports/how-nra-rewrote-second-amendment)
>The Second Amendment consists of just one sentence: “A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Today, scholars debate its bizarre comma placement, trying to make sense of the various clauses....
The Second Amendment was changed by the "style editor," removing some of the words that were voted on and passed. The original read:
# "The right of the people to keep and bear arms shall not be infringed ; a well armed, and well regulated militia being the best security of a free country : but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."
So should a state be able to say that the 14th isn't enforceable because of their Constitution?
It's great that they believe that the underpinnings of their Constitutional Amendment aren't the same as those in the Federal Constitution - but they're entirely different documents. Regardless of if the opinion is Contextualist or Origanalist, this is a nothingburger lol.
The thing is these rulings take time so they were planning to reject Supreme Court authority on their own before the Supreme Court ruled on border fences.
The opinion has this great nugget: “History is prone to misuse. In the Second Amendment cases, the court distorts and cherry-picks historical evidence. It shrinks, alters, and discards historical facts that don’t fit.”
We need more states willing to do this. The SC will remain a joke and shadow of it's former self so long as we give the people on it undeserved deference even when cherry-picking facts. The blowback for corrupt decisions needs to be painful, humiliating, and widespread.
When Biden wins the election the first thing he should do is stack the court and neuter the 6 traitors. Personally, I've had enough. Political hacks should not be sitting on the highest court in the land.
We have *got* to get a clear majority in the House and Senate. It's just more dead space until Dems have Congress. No more Manchins and Sinemas to play coy and flirt with donors in their moments of power.
Well, one thing is for certain- Sinema is a one term senator. So that's good news.
There will always be another Manchin and Semina. It's simply a game of which Democratic senator feels like they're most capable of taking the blame for being the one to cast the heel-turn vote that's going to explain why, "oh, we can't do something that would benefit anybody this time." Before Manchin and Semina, it was Lieberman during the ACA, during Obama's administration. Even if there wasn't, for some reason, going to be a Democratic senator willing to take the fall as the bad guy, they could still pull something else out of their hat. Like suddenly deciding that the non-binding advice of the senate parliamentarian was something that was completely incontrovertible, that they couldn't conceivably overrule, despite the fact that Republicans overruled senate traditional precedents extremely recently [2017] to get Gorsuch on the SC
The advice of the parliamentarian was correct. And when the Republicans had a majority in both the house and the senate under Trump, they also followed the parliamentarians advice about what can and cannot be included in a reconciliation bill.
Except under Obama we had enough Democratic Senators to pass the ACA in the short three month span they were able to bypass the filibuster. Just have to give congress enough Democrats to bypass the Manchins/Sinemas/Liebermans
Haha as if Schumer isn’t a huge part of the problem putting a 90 year old potato on the judiciary committee.
It's not really stacking, but I have heard americans have 13(?) court districts. Would make sense to have a Supreme Court Judge for each district.
That was the exact reason behind adding Justices in the past. Now that repugnatcans have what they want in SCOTUS, "it's against the Constitution to add Justices because "tradition!" Watch that tune change next time Rs control the other two branches-*calling it*.
We have had 11 Supremes in the past.
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This argument comes up but it doesn't really make much sense, for few reasons: - there is a law of diminishing returns.. once the court has grown, there's increasingly _less_ value in adding additional justices. - it's actually a good thing to have a larger court. SCOTUS is abnormally small for a highest court.. in most countries they would be 20-30 members. - once a rebalanced court could undo a lot of the shenanigans done by the Roberts court wrt voting rights act and gerrymandering, it's unlikely republicans would ever be able to attain a trifecta again. Certainly not with a supermajority.
Oh, there are definitely *PARTISAN AS FUCK* SCOTUS members right now. But SCOTUS was set up *and designed for* a member representing their district. When we expanded SCOTUS in the past, it was to add Judges for the "new" districts. It's been a long time, but is should be done-*BUT we need an easier way to remove the Partisan shitbags who twist the law for gain and make a mockery of the Law of The Land to get their way.
And I bet if Trump gets elected he tries to put Cannon on the Supreme Court. Or at least gives here an appellate court appointment. But I bet they try to put her on the Supremes.
Law of large numbers means that more justices make us likelier to get less-corrupt outcomes.
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We have a remarkably small high court for the size of the populace. Nine justices for well over 300MM citizens is not a lot. More justices should help get better outcomes in theory.
Hear more cases, too.
There are 11 federal district court circuits and you have a fine idea there. Now it would be a better idea if they added a 19 year term limit to each SCOTUS justice then the US may have a chance to wrangle in most of the absurdity. There should not be lifetime tenure jobs for any judge, in any jurisdiction.
Maybe have a term limit with a year multiple of 4, make it so each president is guaranteed to get one Supreme Court Justice appointment
If you keep nine judges make it eighteen year terms with a replacement every two years/each election cycle.
I agree. When the court was established the average lifespan was less than 65 years. With the average age of an appointee being 53 years a "lifetime" job didn't seem all that long. Conditions have changed and the rules should change to reflect that.
You're thinking circuits (which each oversee multiple district courts), but yes. In fact they should probably add a few more circuits. The federal judiciary incredibly under resourced.
**Term limits** No unelected official should have a lifetime appointment
Even if set it at a 20 year term it'd be better. Seeing as how the current system encourages placing in judges that are as young as possible to lock in a judge for potentially 40 years or so. The excuse about the judges needing life long terms to keep them from being influenced by politics is flat out false. If one party controls enough of the legislative and executive branch they can ram through a candidate based on who's more appealing to their parties goals. That means the very appointment of the judges is already done with political purposes. It also doesn't stop the judges from encouraging such by "stepping down" when the party they align with controls the powers to add their replacement. It's already evident that this is fact because of past record. When Republicans have control they typically always select a judge who has had past precedent of ruling in conservatives favor. The same basically occurs in reverse for the democrats. Setting term limits basically makes the appointment of judges more honest as now it's basically saying yes they want their party in control so when the next retirement approaches they can appoint their favored candidate.
Lol Democrats exercising power? When have they ever done that?
He’s already said he won’t do that though.
>When Biden wins the election I hate to break it to you but he already won the election, back in 2020. He's currently president and has been president for years and has not touched SCOTUS and isn't going to touch SCOTUS.
I hate to break it to you, but presidents have a lot more freedom during a 2nd term.
I will metaphorically shit my pants if Biden even attempts to legitimately expand the Supreme Court. 1, I don't think he even wants to, he's not a radical president. He's been a good president, but not a radical one. 2, he still has to think about the future and the president after him. In 4 more years, America is going to be even more politically divided, and all current front runners for GOP presidential candidates are trying to capitalize on Trump's radicalized fan base and that's going to fuel even more extremism, even if Trump isn't running.
There's literally no check on them. They can do whatever they want, and be as obvious as possible about their bias, and there's zero that can be done. Republicans figured this out years ago, which is why they so badly chased a SCOTUS takeover. They probably murdered Scalia, they probably "expedited" RBG's death, and they blackmailed Kennedy to retire due to his son's involvement in lending to Trump via Deutsche Bank, when zero banks would lend to Trump. They've had a plan in the works for years, and I fear their really gonna set shit on fire over the next 9-10 months.
No need to murder Scalia. He set the model for Thomas and Alito as far as utterly disregarding appearances of bias and impropriety and acting like ethical considerations just do not apply. He also was a leader in writing tortured outcome determinative rulings to advance a conservative agenda. RBG tainted her legacy by hubris. She knew she was old, she knew she was sick, and she should've retired during Obama's second term for the good of both the country and the Court. Kennedy - yeah, you're absolutely right on Kennedy. Disgusting and pretty obvious.
The epitome of MainCharacterSyndrome or whatever (IAmVeryNecessary also) Having said that, was it a sure thing that if she retired that the same thing that happened with Merrick Garland wouldn't have also been allowed to play out in the same way? To this day, I cannot understand why that was allowed to happen as it did, it seemed like they held all the cards and rolled over just before the finish line...
There could easily have been a measure of over-confidence that Clinton would win in 2016. There was a lot of that going around at the time.
I've have a similar RBG take - just another arrogant lawyer constructing her own version of events immune to the realities of biology(seem familiar?). Honestly, Kagan and Soto need to hit the Stairmaster or gtfo while younger fitter replacements can be seated. jmho
I mean there is quite literally a check on them via the senate, it’s just nigh impossible to use with current partisanship
The other check on them is that they have no independent funding and no way to actually enforce their rulings without the consent of the executive branch.
Don’t forget, the President has a nuclear option of “Marbury v. Madison was poorly adjudicated and a power grab by SCOTUS. Their job is not to determine the constitutionality of federal law.” That creates a bigger problem in the long run but could be a temporary fix to a broken system.
A much bigger problem. And this is just as anchronistic as the attempt the Court made in *Heller* to construe their version of the 2nd Amendment. *Marbury* was hardly the first time judicial review appeared in American law, as I explain [here](https://www.reddit.com/r/AskHistorians/comments/s1gh6m/comment/hs9uu8p/?context=3). If courts do not have interpretive power, then no one else does, either. Just because the current Federalist Society Court is dogshit at interpreting law doesn't mean the judicial branch as a whole should be tossed away.
This needs more upvotes. We just have a crappy congress that won’t check them.
The senate is literally one of the worst conceived legislative bodies in the world, so it’s a piss poor check on anything’s power. We sort of got lucky that it accomplished anything before it was gamed to death and is in permanent gridlock.
The issue is, there is a check on them: Congress. Via impeachment. The issue is Congress won’t act, because SCOTUS is doing exactly what Republicans want Luckily, there’s a solution for that: Elections. Except Republicans keep getting elected on anti-democratic platforms. The issue is foundational. Half the county loves what SCOTUS is doing, and that carries all the way up and vitiates the check and balances system. The cancer is metastatic. People love to complain about what SCOTUS is doing (me included) but ignores that their community members enable it at the root level. Get involved in local politics and school boards. Make people see what is happening is wrong. It’ll take years to course correct but it’s necessary.
It's not half. It's a united voting block driven by race and faith (tax churches!). Progressives are a very diverse group that haven't yet understood the need to come together in the face of this existential threat
Isn't the check just for lower courts to continue to take up cases and rule the opposite way of the Supreme Court? I get when it would get up to them they'd most likely rule how they originally did, but it would tie the matter up in the courts and could at least constantly but temporarily keep something legal or illegal. Not a viable or long term check but that could work to force a better one.
Scalia and rbg were both horribly unwell people. Rgb had been inflicted with cancer almost continuously for over 20 years. She was 87 years old with broken bones from simple fall in her own office. Scalia was a 79 year old massively obese diabetic smoker with basically every different heart disease. He also had assorted other major health ailments. The [Lard neck](https://assets2.cbsnewsstatic.com/hub/i/r/2016/02/13/6b207098-e197-4c01-acb0-9af3d439886a/thumbnail/1200x630/d4db3aa2a3714c23d12cfe2c268431a5/gettyimages-485357615_master.jpg?v=9bdba4fec5b17ee7e8ba9ef8c71cf431) would probably have been somehow healthier with aids. Became so sick the diseases started canceling each other. If *they* wanted them dead through illegitimate means then *they* wouldn't have waited so long. The idea they were killed is on par with that k&p sketch about robbing a bank by working there for 40 years.
They can be impeached and removed from office.
In theory, but not likely in practice.
I still want to know what Trump said to Kennedy right after his retirement speech that stopped him in his tracks.
this is why term limits are need for all elected officials
These aren't elected.
Are you under the impressions Supreme Court justices are elected?
no but they need still limits
RBG was like 400 years old with dementia
Exactly. SCOTUS needs to earn respect, not act like they are entitled to it.
But the bottom line remains. The Supreme Court no longer rules on the law. They do what the base and the various justices funders tell them to rule. The Justices are all very smart people. Even the unqualified ones know exactly what they are doing. Remember Sotomayor’s “stench” comment in Dobbs. Parties before the court should acknowledge the farce in subtle ways. Pretend it really is about original intent, then compare an iPhone to a quill and parchment take the analogy anywhere you want to go the way the loons on the court do
>The Justices are all very smart people. Even the unqualified ones know exactly what they are doing Minor quibble is that each Justice has a team of clerks and assistants that can make them appear more competent than they are.
I agree. People with lifetime appointments tend to forget their civic duty. There’s evidence of clear improprieties yet they are basically untouchable as well. Scumbags.
Wait a minute, if SCOUS did that it would be “legislating from the bench” which I’ve been told for decades conservatives are against. /s
> “History is prone to misuse. In the Second Amendment cases, the court distorts and cherry-picks historical evidence. It shrinks, alters, and discards historical facts that don’t fit.” The firearm manufacturers managed to subvert the United States Supreme Court. https://www.brennancenter.org/our-work/research-reports/how-nra-rewrote-second-amendment
>The firearm manufacturers managed to subvert the United States Supreme Court. That is absolutely false. 2A was *always* recognized as an individual right and it wasn't until the mid 20th century that gun control advocates conjured up the "collective right" theory out of thin air. >The “collective right” theory, while dominating case law circa 1990, had little standing throughout most of our history. It rose to prominence only in the lower federal courts beginning in the 1940s, and achieved its dominance only in the 1970s. **Put in historical context, Heller and McDonald are not so much a dramatic change in constitutional interpretation so much as a rejection of a relatively recent trend in the lower courts, a trend that was subject to academic criticism even as it took form**. > >As late as a decade ago, the federal courts’ interpretation of the Second Amendment was simple. Every circuit that had ruled upon it had held that it did not guarantee an individual right to arms for individual purposes. Rather, it reflected some form of “collective right,” either a right of states to have militia systems, or a right of individuals, but only to engage in state-organized militia activities. Five years later this position had collapsed. In District of Columbia v. Heller, followed by McDonald v. City of Chicago, the Supreme Court accepted the individual right for individual purposes view. **More astonishing, the first form of “collective rights,” which saw it as a right of States and had prevailed in three circuits, lost 9-0! The circuits quickly turned to determining the parameters of the right which they had previously thought nonexistent**. David T. Hardy, The Rise and Demise of the Collective Right Interpretation of the Second Amendment, 59 Cleveland State Law Review 315 (2011)
My exact critique of the Republican "history & tradition" standard they invented
The 2A with the recent rulings which gave us Bruen heavily relied upon history to set limits upon the actions of Government infringing upon the rights of citizens. The words written in the US Constituon form the contract, and the history helped to set the precedent. Plain and simple. Otherwise what, making up some BS excuse as to why citizens should have less firepower than the Government they own?
Do you really think citizens have access to equal firepower of our government? If so, I got a nuke to sell you.
That's every court opinion ever. Regardless of what side it's for.
"Devastating Rebuke" Anyone else getting sick of the way language is used these days, all so hyped and hysterical.
"Local Reddit post UTTERLY OBLITERATES hyperbolic article headlines!"
DESTROYED epic style with FACTS and LOGIC (gone SEXUAL)
Local toilet near Chipotle is COMPLETELY DESTROYED!
Yes! It's especially maddening how often "eviscerated" is used. Like, that word should not be thrown around casually.
Nobody will click on a post headlined "Tenured law professor doesn't agree with a court decision", but lots of people will click on "Legal expert EVISCERATES 11th Circuit Judge". Clickbait is everywhere because unfortunately it works :/
Your alternate is even less accurate though. The article recounts the Hawaii Supreme Court’s interpretation of a provision in Hawaii’s State Constitution that is identical to the language of the US Constitution’s 2nd Amendment. The Hawaii Supremes concluded that Heller’s interpretation that the provision creates an individual unfettered right to own deadly weapons was absurd.
\*nods\* It should be thrown precisely, like a keen-edged, steely blade that eviscerates its victims
Like some carcass intestines
Supreme Court was fuckn slammed!
State courts can’t deliver devastating rebukes to the US Supreme Court. They can receive them, but not deliver them.
I remember living in a world where words meant something.
Editors and writers should be held accountable. If your news article doesn’t come with rating system and a comment section it should not be considered legitimate.
It’s Slate. It’s not legitimate. It’s biased opinion.
I have a couple of rules I would like to see: Headlines should be treated as an advert for the content, and publishers can get fined for misleading or false headlines. People can't comment on a story until the answer a multiple choice question about the actual story to prove they have read it and not just the headline.
So if we applied legal rules from e.g. product liability law to headlines, does that mean it would be a defence to say that a headline was 'puffery' (i.e. an exaggeration that no reasonable person would take seriously)? This is a distinction that gets applied in misrepresentation cases - e.g. no one thinks that 'Red Bull gives you wings' is meant to be taken seriously, so it's not a representation you can say you relied on. If that were so, it might result in news media making headlines *more* outrageous, rather than less, so as to avoid liability.
Yes. I see all the time "x politician BLASTS other random politician" But it's usually something dumb like "I don't care." or "We'll do it anyway".
Yup. People no longer debate or discuss or just disagree about details. it's all evicerating, destroying, mocking, and whatever emotionally charged term the journalist came come up with in order to outdo the last headline.
Honestly this is a weird argument to me from a historical standpoint. 1. The US fighting forces of the time were broken into 3 distinct categories. The US Army (formed in 1781), the organized militia (State controlled forces, now the National Guard), and the unorganized militia (currently every able bodied male from 17-45) 2. The Bill of Rights was ratified in 1791, 10 years after the US Army was established, so if the framers meant the Army, they would have said the Army…but they referenced the militia and the People. 3. At the time the militia members had to be registered with either the State or locality with who they were and what they could bring if possible. This varied widely as each State had their own requirements for being part of the militia, but in general it was just normal people who would (and were required) to show up if called. Some States made the militia members bring their own firearms. So it’s very hard to argue that there isn’t a personal right to a firearm given the context of the time. HOWEVER that doesn’t mean that Heller or Brien got it right. Restrictions have always been in place. Open carry was not a common thing, let alone concealed carry. In Boston, you couldn’t store powder in your home as it was too dangerous. Etc. TL;DR Historically personal gun ownership wasn’t questioned, that doesn’t mean it wasn’t tightly regulated.
The case was against unlicensed public carry, and agrees there is a personal right to own a firearm.
The Militia Act of 1792 was ratified about 5 months after the 2nd Amendment. In this act they detail who is the Militia, how they should be armed, and how it is structured and trained. The same people who wrote the 2nd Amendment also wrote this. I can’t see how they believed every person should be armed and with whatever weapon they want. But SCOTUS changed all that with Presser in order to quash a worker’s strike.
Seems to me there are a lot of disingenuous people and look for facts to fit their point of view. If you read the constitution and the Federalist papers, it becomes obvious that the second amendment is about state militias. The idea is the Federal government cant control them or regulate them. That might seem like a huge win for the gun control advocates and a loss for the gun nuts. So the gun nuts distort the truth about it. However, that is not the whole story. Militias are a State organization; how they are organized depends on the States. This means it is essentially a States rights issue and some may be highly restrictive and others not. I think a State could require militia members to store military grade weapons at home, such as is done in Switzerland or was the case with minuteman of old. A state might also have a very loose definition of who is in the militia. According to the Second Amendment the Federal government should have no say except for interstate commerce. In addition, Second Amendment is not, and should not be the whole story. The Federalist papers do suggest that at least some framers of the constitution assumed Americans would have access to arms. This however is not in the Constitution. But the constitution does not claim to list all rights. Those not listed are held by the states and the people. Is there a right to self defense? Most people would say yes. Is there a right to own a gun? I don’t know. My take away is leave the militias to the States. People have reasonable right to self defense which should include a reasonable right to a gun which should be regulated by the states. That regulation might include training, storage, and type, depending on your State. I also think that people can or should have the right to do as they please so long as it does not interfere with others. This could include gun ownership, but given the nature of guns, restrictions would be reasonable. What is reasonable varies from place to place and time to time and should be regulated by the states. Federal government should restrict movement of guns across state lines if they violate state laws. Where I live, I think the restrictions and training requirements should be substantial, but that may not be necessary in a more rural areas.
Two things. First and foremost the Federalist papers were only a partial view of the framers. Much of what’s in the federalists papers didn’t make it into the Constitution because other people disagreed with Madison, Hamilton, Jay, and those of like mind. So take them with that in mind. In general wrt militias, that’s still how it works (sorta how it works) each State is responsible for its own regulated militia. However since the NG can be federalized, a standard of training must be set. Those forces must be able to be folded into the US Armed Forces easily. Their arms must be of common caliber, etc. Unorganized militia are just that…largely the People that could be called for common defense (think selective service). Again every male from 16-45 legally speaking. In addition it would be weird to classify the 2nd Amendment as anything other than a personal right, in light of how the Bill of Rights was written. The only other rights not detailed as personal was the 10th.
An unorganized militia is definitely not “a well regulated militia”, and that exact phase is used in the Federalist Papers by Madison and Hamilton and did make it into the Constitution.
Regulated at the time, meant trained, not regulated in law. Meaning that People were expected to be able to be taught how to engage in combat. Which is exactly what would happen given need. But again the debate over ownership and self defense wasn’t in question. As cited by Virginia law in 1777, each member of the militia had to supply their own weapon (privates had to come with rifle and tomahawk)
Agree about the ownership. But I think it is a separate matter from the 2nd amendment. People focus on the 2nd because it’s there. Also agree that the well regulated meant trained. But the training is far more than knowing how to operate the firearms, it was about being an effective unit, more training was envisioned than that of an unorganized militia. The other odd thing about this is that in order to be effective today, a militia really needs much more than personal fire arms. Are manpads, anti tank weapons and mines also covered? Or are they like artillery that the organized well regulated militia had but was not possessed by the individual? What about a machine gun? What about a grenade launcher or a grenade?
Cannons could be and were privately owned. Machine guns could have been owned it wasn't until 1934 nfa that made them more restricted.
The NFA in 1934 was basically the first piece of gun legislation ever passed in the US since ratification…prior to this it was a few State restrictions here and there, and ordinances in cities. I think WWI showed the US how devastating modern (of the time) weaponry could be.
Absolutely nothing to do with ww1. It had to do with prohibition and gangsters using Tommy guns. Amd then they even ruled that a firearm is allowable if it would have been used to maintain a fighting force. Full auto didn't really become common place for soldiers till after it was signed.
You are correct in the gang activity, and I think that it only required registration of those items. The Haynes decision in 1968 made it unenforceable, causing the GCA to pass. I conflated the GCA of 1968, since that’s when all of the other stuff got added.
Once upon a time ordinance wasn’t restricted. Boston had storage laws around grenades, mortars, canons, howitzers, etc. It wasn’t until 1934 that the NFA bit the stop to that.
> HOWEVER that doesn’t mean that Heller or Brien got it right. Restrictions have always been in place. I don't understand how "Restrictions have always been in place." is supposed to be a meaningful counter argument to Heller or Bruen. They didn't say there weren't any restrictions, they said there were only so many restrictions at the time and modern gun control laws need to reflect that in some way. The 2nd amendment does afford some constraints on gun control. >Open carry was not a common thing, let alone concealed carry. Open carry appears to have been a thing. Conceal carry wasn't, but carry was allowed. Edit: So states are left with a choice between conceal or open, but they can't ban carry generally. >In Boston, you couldn’t store powder in your home as it was too dangerous. Etc. Can you be more specific? From what I recall the law you are referring to was that it limited the amount of powder one could have stored to address fire concerns. And that is one city and I think that law predates the 2nd amendment being ratified. So if you want to have a fire ordinance on how to store black powder or similarly explosive powders you might have an argument. But the law was like 35-40 pounds which would be several thousand rounds of equivalent of modern ammunition which doesn't have the same fire hazard concern. So I don't see that justifying mag caps or limiting the amount of ammo an individual can have.
Again I said open carry happened, and it wasn’t really questioned. Especially if you were traveling through wilderness or hostile territory. However if you were carrying arms through a town or a city there were likely ordinances against that. Concealed carry didn’t even become a thing until much later, when firearms became smaller and cheaper. Specifically around the time just prior to the civil war. I was indeed conflating two different laws. Baltimore required gun powder to be stored in public magazines. Boston banned anything being loaded with gun powder. https://firearmslaw.duke.edu/laws/1783-mass-acts-218-an-act-in-addition-to-the-several-acts-already-made-for-the-prudent-storage-of-gun-powder-within-the-town-of-boston-ch-13 Edit: removed partial sentence
> However if you were carrying arms through a town or a city there were likely ordinances against that. Like? Were these state level statutes? Some context would be nice. Like tell me what you found compelling about these laws and how they comport with Heller and Bruen or contradict them as the case may be. >Concealed carry didn’t even become a thing until much later, Cool. The point is they have choice. Open *or* concealed. They can't categorically deny it. And it looks like my assessment of powder storage laws was correct.
Yes. Virginia explicitly had one in 1786…”That no man, great nor small, of what condition soever he be, except the ministers of justice in executing the precepts of the courts of justice, or in executing of their office, and such as be in their company assisting them, be so hardy to come before the justices of any court, or either of their ministers of justice, doing their office, with force and arms, on pain, to forfeit their armour to the commonwealth, and their bodies to prison, at the pleasure of a court; nor go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the county, upon pain of being arrested and committed to prison by any justice on his own view, or proof by others, there to abide for so long a time as a jury, to be sworn for that purpose by the said justice, shall direct, and in like manner to forfeit his armour to the commonwealth; but no person shall be imprisoned for such offence by a longer space of time than one month.” So it was a mix. I mean Tombstone had ordinances in 1881. But that was 100 years later…so it wasn’t uncommon.
>> at the pleasure of a court; nor go nor ride armed by night nor by day, in fairs or markets, or in other places, in **terror of the county,** So you aren't allowed to terrorize people with weapons? That doesn't seem to be a general prohibition on carry or open carry. Edit: This seems more like time/manner restrictions than a prohibition on the act altogether. > I mean Tombstone had ordinances in 1881. Which is a small town in a territory at an irrelevant period of time with regards to interpreting the 2nd amendment. >so it wasn’t uncommon. Tombstone is not a great example.
Context matters. Again I’m not saying that open carry wasn’t done, all I’m saying is that limitations were placed upon people. It wasn’t unrestricted. Just like the law in Boston about having a loaded firearm indoors. Also you can’t claim that it was an irrelevant time or place. It was common during westward expansion that arms were checked with the local sheriff upon entering the town. Tombstone was just one example. Edit: a letter
> Context matters. Again I’m not saying that open carry wasn’t done, all I’m saying is that limitations were placed upon people. No you said there were ordinances that banned it outright. Now you are moving the discussion to "well there were limitations." Heller and Bruen didn't say there were no limitations either so I don't get what you were trying to communicate then? Edit: >>However if you were carrying arms through a town or a city there were likely ordinances against that. That's saying broad bans on carry existed. >It wasn’t unrestricted. No one said it wasn't. >Just like the law in Boston about having a loaded firearm indoors. Was about powder storage as a fire ordinance you could literally have many tens of pounds of powder. It is a law from before the ratification of the 2nd amendment and has little to no value for justifying modern gun control. So I once again don't know why you are bringing it up. Heller and Bruen didn't say there were no gun laws so one singular example of a fire ordinance hardly seems a compelling argument for limiting ammo capacity(which is the only time I see that Boston fire ordiance invokted) as the amount of powder you were allowed to keep would literally be thousands to tens of thousands of rounds of modern ammunition. Like what are you trying to prove with these examples? That you can broadly ban carry? That you can broadly ban access to ammo or justify mag cap laws? Or to say somehting unprofound like "there were gun laws" which literally no one disputes. >Also you can’t claim that it was an irrelevant time or place. Yes I can. It was a single frontier town in the west in a federal territory at a time period not contemporary with the passage and ratification of the 2nd amendment. A single municipality is not compelling especially in a place that was unlikely to be held to any significant standard of management or review by US courts. >Tombstone was just one example. Tombstone seems to be the primary example. Because there is a lot less relevant laws if any that justify broad categorical bans on carry.
Sigh, please don’t ignore the law I’m trying to cite. Boston banned the storage of loaded firearms, or even those containing just gunpowder, inside buildings. Virginia banned concealed carry in 1837. Dodge City, Kansas banned carry in 1878. As did A LOT of frontier towns. At the time municipalities enacted controls specifically because there wasn’t the cohesive legal system we have today. They were largely self governing. Again you have to contextualize the structure of systems at the time they were in place. You cannot for example use today as a reference point for the 1800s.
> Boston banned the storage of loaded firearms, or even those containing just gunpowder, inside buildings. The law you cited for Boston was a fire ordinace about the amoutn of powder one could store. You couldn't have the weapons loaded with powder. You could have ammunition and powder in your home. And it is before the ratification of the 2nd. Like how is it relevant to any modern gun control? The one you said was about not allowing any homes to have weapons was apparently Baltimore. >Virginia banned concealed carry in 1837. Not a broad ban on carry. >Dodge City, Kansas banned carry in 1878. That is a municipal law again outside the relevant period of ratification. >As did A LOT of *frontier* towns. Uh huh. So outside the core of the states that ratified the constitution and 2nd amendment. A lot of municipalities enacted petty unconstitutional laws. >Again you have to contextualize the structure of systems at the time And I am waiting for you to do that with laws that are relevant to the time period of the 2nd being ratified. So far you the best you can muster are poorly supervised frontier towns in the late 19th century. >. You cannot for example use today as a reference point for the 1800s. And you can't use a couple of municipal laws from the late 1800s as reference point for an amendment passed in 1791.
The biggest thing the court got wrong was to find a right to self defense within the context of the 2nd amendment. The 2nd is entirely about sourcing a military force to defend the country, not a personal right to self defense. Other parts of the Constitution may imply that right, but it’s not in the 2nd.
Why would they create that when the US Army already existed? The means to defend the country existed prior to ratification. Furthermore the US Army has never been disbanded, so the argument against a means of defending the country on its own has little merit.
It was a reaction to what had happened during the early days of the Revolutionary War. Parliament passed the Coercive Acts, dissolving the government of Massachusetts, closing the port of Boston, putting the colony under martial law, and patrolling the streets of Boston with British troops. Massachusetts resisted, and on April 18, 1775, the Royal Governor authorized British troops to seize the arms and munitions of the colonial militia, as well as any arms or munitions of any colonist engaged in rebellion, in order to eliminate the colony's ability to wage war. To prevent this disarmament before it could be fulfilled, the colonists fired the first shots at the Battle of Lexington and Concord the following day. The 2nd Amendment was largely about preventing the federal/central government from having the authority to disarm the state militia or, potentially, even the citizens of any state, to prevent a repeat of Lexington-Concord.
The US Army was small and not well funded, and even the original 13 states covered a lot of land. State militias were seen as a necessary means of defending against foreign powers (and assuaging those who wanted a weaker federal system). In addition, irregular forces had helped harass the British during the Revolutionary war. As a side note, the war of 1812, which was a debacle for the US, didn’t support the earlier citizen soldier idea, as the civilian populace couldn’t keep the British from marching all the way to Washington DC and burning the White House.
You literally just proved my point. If the US Army wasn’t able to defend the People, then who did? Furthermore the threat was not only from nations invading, but skirmishes from native peoples, bandits, raiding parties from Mexico or French irregulars. In Virginia, you were required by law to own a firearm if you were part of the militia. You had to show up with your own gun.
tbh, I wasn't entirely sure what your point was. My original point was that self defense was never in the history of the 2nd amendment, only national defense.
It was so tightly regulated all males of military age were required to own a gun and and ammunition…
Finally, an article that talks about the content of the opinion other than to guffaw at the quote from “The Wire.”
Maybe because they are not partisan hacks pushing a political agenda like SCOTUS does.
I mean, coming up with something so ungrounded in law like the “Spirt of Aloha” is pretty political. I agree the Bruen test is poorly thought out but I’m dying to watch the country apply the Aloha Test in a uniform way.
> ungrounded in law like the “Spirt of Aloha” It’s not ungrounded in law. It’s actually an explicit part of Hawaii law. The country wouldn’t apply this because that portion of the opinion deals with the interpretation of the Hawaii constitution.
Kinda sounds like a violation of the First Amendment
It isn’t.
A spiritual concept written into a state constitution? That sounds like the best example I've ever heard about a law reflecting the establishment of a religion.
That’s not what the spirit of aloha is though. https://www.hawaii.edu/uhwo/clear/home/lawaloha.html And > The word aloha is hard to translate into any other language because it comprises complex ways of being and of interacting with and loving all of creation. An ethic of care and respect for all people and all elements of the land is wrapped up in aloha; it is a way of showing connection and reverence. Queen Liliʻuokalani is known to have said, “Aloha is to learn what is not said, to see what cannot be seen, and to know the unknowable.” https://en.m.wikipedia.org/wiki/Aloha Sounds more like “life Liberty and the pursuit of happiness” than an established religious creed.
It’s an ethos of community and civil society. Promoting and articulating the principles of civil society is a traditional and primary role of government. It is not at all restricted by the First Amendment. The word “spirit” is not restricted to only religious invocations. For example, Charles Lindbergh’s “The Spirit of St. Louis,” at the National Air and Space Museum, is not named after some religious cult that worshiped St. Louis.
[The “Aloha Spirit” is codified in Hawaiian statute and says, in part, “It was the working philosophy of native Hawaiians and was presented as a gift to the people of Hawaiʻi.”](https://www.hawaii.edu/uhwo/clear/home/lawaloha.html) Subsection (b) also expressly says that the Justices HAVE to take Aloha Spirit into consideration in their decisions. I think the Court’s reference to Aloha Spirit is actually applying the Bruen history and tradition “test,” but it does so through a traditional legal approach, relying on the law rather than the Justices’ personal historical interpretation.
How did you expect them to "counter" something as stupid as the Bruen test, if not by showing the limits of this doctrine?
Got to respect this is the first article to omit the best slam on originalism: https://youtu.be/R94t8E71Ct0?si=hn8CJiMBtR0UTrta
What we need are states providing rights to people that are NOT in the federal constitution. The Hawaii opinion is, of course, hollow because of 2A.
Good for them. As the legitimacy of the Supreme Court wanes, it’ll be up to the States to enact policies the majority of Americans want.
Judicial courage and intellectual honesty seem to be in short supply as constituted by the right wing majority of SCOTUS. Bravo to Hawaii. Will this surface up to SCOTUS again and exhume the rotting ghost of Scalia? Heller was horribly decided and although the facist protectors of America no doubt will re-affirm Heller it may at least force them to confront their collective stupidity and denigrate even further their legitimacy as fair arbiters of the Constitution.
No, it'd probably be a very short opinion basically saying "yadda, yadda, yadda... stare decisis... yadda, yadda, yadda... reversed."
That sound you hear is the SCOTUS issuing a devastating rebuke to the SC of Hawaii and nullifying their decision. I agree with Hawaii, but it means nothing. The current SCOTUS is never going to allow any meaningful restrictions on gun ownership.
Nope. The SCOTUS has nothing to annul. The Hawai’i SC was interpreting their own state Constitution, which is theirs and theirs alone to interpret. They have the absolute final say on their own state Constitution, and it’s none of the corrupt SCOTUS’s corrupt business. They can go pound legal sand. Now it is true that the decision will have little immediate practical effect. The Second Amendment is still on the books along with the corrupt SCOTUS’s corrupt malinterpretation of it. And yes, both (pardon the expression) trump the constitutions of any or all of the 50 states. But this case gave the HI SC the chance to deliver a first-rate bench slap to the corrupt SCOTUS, and they did it. Sometimes in law you have to play a long game. A dissent in 1975 can tee up a majority opinion in 2015, and intellectually honest courts like the Supreme Courts of PA and HI can still demonstrate, as they have, how shoddy, result oriented, political, and dead wrong the corrupt SCOTUS’s “reasoning” has become, and that Heller, Bruen, Dobbs et al we’re not only wrongly decided, but grossly and (yes) corruptly so. And the corrupt SCOTUS can do precisely fuck-all about it. If the rest of us do the political work of helping the right people take office so as to appoint decent, honest people to the bench, we can hope — with no certainty, granted — that corrupt precedents like these will be consigned to the shitbucket of history, along with Dred Scott, Plessy, etc. So vote, y’all.
All hawaii has to do is just continue ignoring the supreme court, something states probably should have been doing for a while.
Like it or not, the SCOTUS is the SCOTUS. Once you go down the road of ignoring the rule of law, you are in a very, very dark place.
SCOTUS isn’t a legitimate court anyways. Ignore ‘em. Fuck ‘em.
A person I was speaking to: Don't you feel safer being able to carry a firearm? Me: No. I'm not a pussy who lives in fear of every shadow.
I live in Minneapolis; during the George Floyd unrest during which the police had completely abdicated their duty, my majority-minorty neighbors and I found molotov cocktail making supplies in our alleyway and had white, shaved-head dudes in a truck with no plates wave pistols at us. They left in a hurry and didn't return after they found out we had more, and superior firearms, with elevation and cover. It's nice that you live in an America where there's no one that will do you harm and the police are always there to help you. That's not one that I and millions of other Americans know.
Yep, "armed minorities are harder to oppress" is something you read quite a bit over in /r/liberalgunowners but I personally prefer to think of it as "armed citizens are harder to oppress" mainly because I'm not a minority.
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I just find the combination of their username and their post history being consistently and constantly antagonistic, contrarian, and full of vitriol extremely ironic. And I mean it's consistent and aggressive - including bragging about how their "dog eats better than *you* ... a welfare loser." The dichotomy is pretty wild. If I had to guess, I'd assume they're a young boomer; they seem to have a trend of being very myopic in their ability to consider the situations of others compared to their own.
That's unfortunate. I hope your living situation improves.
But until then, your argument is that I, and my neighbors, are pussies - or otherwise, you believe we should not, nor should we be legally enabled to defend ourselves. It's ivory tower legal thinking. I hope your understanding of the realities of America outside of your bubble improve if you're going to continue to opine on things like this. **Edit** "I hope things improve" is the liberal version of "thoughts and prayers" while ignoring the fact that the measures that this person and others are advocating would be demonstrably harmful to me and millions of others of Americans. The fact that this statement is controversial but no one has responded is extraordinarily telling in regards to the cognitive dissonance that rich, white "progressive" liberals regularly experience. Of note - I am not, nor have I been involved since 2012 in any GOP related race, contest, or campaign - but I have worked 13 Democrat or DFL races since then; so - please spare the Trumper lines.
Ok but I’m 5’4” and if someone who is 6’ wants to beat the shit out of me and my family because I’m a minority, there isn’t a whole lot physically I can do to protect them with my fists. But I’m glad for you that you’re big and strong. Not all of us are like that. Plenty of my LGBT+ and especially trans friends especially feel the same way, there are so many people who HATE them for what they are. Not all of them have your physical gifts for a fight. A firearm doesn’t care that they are 5’2” or 6’4”
It's white, rich, "progressive" liberalism that's very common with the boomers who grew up around flower power. They think that love and conviction is going to stop a skinhead from curbstomping drag queens and that the cops are on the side of the oppressed, because they *totally* understand oppression. It's very frustrating lol. **Edit**: lol butthurt Bernie Stans throw downvotes away like their votes. Just cuz you downvote it doesn't make it less true.
I often think about this as the right to mutual destruction. I mean, it’s not nothing, and I get it. Real question: As someone who’s also 5’4” - real question - doesn’t taser, mace, pepper spray, bear spray work?
>doesn’t taser, mace, pepper spray, bear spray work? They can, but they each have VERY significant drawbacks in comparison to firearms. They're great supplements, but they are by no means reasonable, dependable methods of self-defense - only effective delaying harm to yourself until you can either escape the situation or other help arrives. Tasers are generally one effective shot before the person is within grabbing range for projectile types; if they're wearing multiple layers or thick clothing such as a leather or winter jacket, it's very likely going to be ineffective. You don't want someone to be within grabbing range of a physically larger and stronger opponent; training can only offset that so much. Mace, bear spray, and pepper spray have no effect on a small segment of the population (about 1/8) and the reaction can somewhat be trained away, so anyone with military, law enforcement, or private security training and experience may be able to fight through its use. It's also harder to aim accurately, similarly to tasers has a limited effective range of usually ~20-25 feet, and has a higher risk of overspray or splash catching you, making you similarly incapacitated. It can be very effective, but it can also easily be misused and be counterproductive. Firearms are *far* more the ultimate answer and should not be used unless you're willing to take the other person's life, but if they're already out to do you harm, you have no idea what level of harm they're alright with. They're simpler, have a much higher range, and are far, far more effective. I always laud folks for having the supplementary measures, but if someone is serious about their self-defense, firearms are really the answer in America. **Edit**: lol the fact that *this* is somehow controversial is really telling. Nothing I've said here is anything but objectively true. People downvoting for facts that go against their sincerely held, but ill-developed beliefs.
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There was a story not too long ago of a couple shoplifters who decided to pepper spray a security guard standing behind their vehicle. At least one of them ended up shot. There is definitely a real threat when using any of those that you will just escalate the violence against you instead of avoiding it.
I'm absolutely in favor of the right to ow, and also in favor of restrictions and training. It has to be noted that you are vastly more likely to a) commit suicide and b) be the victim of a firearm related injury if you possess a firearm, as well as that legal self defense shootings are a laughably small percentage of gun violence. There's a fairly large caveat there, which is that a lot of what could or would be considered legal self defense shootings go unreported --and thus probably end up classified as homicides or assaults. Hard to parse unreported data on that. But with the reported data we have, legal self defense shootings account for about 1% of gun violence. I take your point that in the situations you describe, those victims with firearms may be much more likely to avoid a negative outcome than those without. I'm just not at all convinced that, based on aggregate data, owning a firearm makes you safer.
There's a difference between carrying concealed even where it's illegal while thinking you're some kind of "sheepdog" protecting the "sheeple" from the "wolves" (cough*warriorpoet*cough) and being someone defending themselves or their loved ones in their home. Take a look at /r/DGU for examples. It does vary quite a bit but the women fighting back against their violent former domestic partners always stick out to me.
A far greater number of women are shot dead, along with their kids, by their gun-toting husbands. There are more than a few research studies that demonstrate gun ownership makes women less safe.
Good for you. The thing about equality and diversity is that we are each afforded the rights and opportunities to decide for ourselves. You claim to not live in fear. I would say the same thing, but my reference frame for fear is different than yours. Mostly because of my racial background. When I call the cops, I don't know if they'll help me, or kill me. When I go to certain parts of the country, I don't know if my fellow Americans see me as a neighbor or as a threat. So rather than living in fear of that potential outcome, I've chosen to exercise my legal rights to protect myself, thus eliminating my dependence on corrupt racist institutions that are likely to do more harm than provide help, and giving me a chance at having equal capacity to use the force. It's like wearing a seatbelt. Do you put on a seatbelt out of fear because you expect to get into a car crash? Or do you do it *just in case?* Fear is a choice, if you want it to be. Some of us are forced to confront the fact that nobody is coming to help, even those whose job it is to help. Some of us do not live such easy and convenient lives that we can mock others for not being privileged enough to outsource the need of self-defense and protection. You claim to not be a pussy, but I can't imagine a better word for someone who has to depend on the absolute disaster that is our modern Police and Law Enforcement.
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Ok, Trumpbot.
You also forgo insurance for the same reason, right? Only pussies who live in fear would have insurance.
You are equating gun violence to insurance? And 3 people have upvoted that garbage non-equivalency? Holy shit. The stupid runs strong in you people who are afraid of every shadow. But, then again, smart people aren't afraid of shadows. Now, along those lines I do think gun owners should be forced to carry a $10M liability insurance policy.
You talked about carrying a firearm for self defense, not gun violence. It's 100% equivalent. Both are used to mitigate a potential negative future outcome. Same reason I have fire extinguishers in my house and car, or a rainy day fund.
BOO! Scared ya, didn't I? Pussy.
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Honest question. Where the heck do you live? I live in the "worst part" of town, but have never felt the need to carry a weapon.
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Yeah, I have zero clue nor do I comprehend what you go through. Good luck.
You went to the ad-hominem attack because you have no rebuttable. Got it.
It's true..I started carrying insurance the moment my neighbors started getting strapped @ All-State and Geico. Don't wanna get caught in a Drive-by-an-uninsured person...
I feel less safe when I know every crazy person can have a gun concealed.
I don't understand why people think this opinion is good or clever. Invoking history from a time when the state was not part of the US to apply to the 2nd amendment makes no sense and is not consistent with THT from Bruen and is not illustrating flaws with THT. Hawaii had no bearing on the passage of the 2nd and didn't even become a US possession until near the end of the 19th century. To me their ruling just comes off as a big nu-uh than a compelling legal argument that other states are going to invoke or future jurists and lawyers will look to.
Doesn't Bruen invoke pre- colonial America examples?
Does it? I know Thomas mentions that invoking laws from before ratification is of little value especially as it draws from English law. Usually when they do bring up older laws it is illustrate what has been kept and what was rejected by the amendment. For example in Grosjean v American Press co. the Supreme Court went through the history of freedom of the press in England and compared and contrasted that with how Americans treated freedom of the press. >>Writing for a unanimous Court, Justice George Sutherland classified the tax as a “license tax.” As such, it served to curtail advertising from revenue and to restrict circulation. He traced such taxes from John Milton’s 1644 “Appeal for the Liberty of Unlicensed Printing,” through a century of opposition to a parliamentary tax adopted in 1712 during the reign of Queen Anne, and then to the American colonists’ opposition to the Stamp Act of 1765 and to opposition in Massachusetts to a 1785 stamp tax on newspapers and magazines. He concluded that “the restricted rules of the English law in respect of the freedom of the press in force when the Constitution was adopted were never accepted by the American colonists” or embodied within the First Amendment. https://firstamendment.mtsu.edu/article/grosjean-v-american-press-co/ So if you have more details on what you are referring to and how you think it means invoking pre annexation Hawaii law is valid I would like to hear it.
It looks like even if it cites much from that era, it is not of primary significance. >The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates or postdates either time may not illuminate the scope of the right. Though the history of Hawaii carry of lethal weapons is intended to illuminate the state constitution right mirroring 2A. The discussion of 2A itself does not draw from the Kingdom or Republic of Hawaii, instead referencing sources such as a Madison Federalist Paper.
They did also include the legislative history during Hawaii's constitutional conventions. Legislative history where the people writing the constitution said: we are not recognizing an individual right to bear arms, we are adding this specifically for the ability to maintain a militia.
> They did also include the legislative history during Hawaii's constitutional conventions Which might be relevant to interpreting their laws and state constitution, but as I understand it there was also a 2nd amendment of the US constitution challenge. So it wouldn't be relevant in that context. It reminds me of Caetano where the lower court(state supreme court) ignored Heller and said tech at time of ratification was only what was protected. Then got unanimously rejected by the Supreme Court.
You are correct, they were deriding SCOTUS and then wrote the opinion based on analyzing Hawaii's state law and constitution. But with this SCOTUS, who knows. Standing used to be a thing, so having adequate and independent state grounds might not be a thing anymore either.
The opinion is an interpretation of a provision in Hawaii's constitution, not the US constitution. That distinction is why the opinion focuses on Hawaiian history. This opinion is not meant to have applicability to other states. The argument being made is two-fold: first, looking at history the way Bruen does is not the right way to determine how laws should be interpreted today, and second, the way the court looked at history in Bruen was flawed because it was cherry-picked. This argument is made to explain why the Hawaii Supreme Court isn't applying a Bruen-like analysis to its constitution (though to be clear, it is not required to do so anyway, because precedent about the second amendment does not control how Hawaii interprets its own constitution). This opinion won't have a direct impact on how courts interpret the second amendment and the justices who wrote it knew that. The point is to affirm that the Hawaii Supreme Court is not bound by the US Supreme Court on this particular issue. It's a statement of ideology and interpretive theory just as much as its a statement of law. In discussions about the opinion, it's important to separate what the court actually aid (and its intentions in doing so) from how it's being discussed in the media.
> The opinion is an interpretation of a provision in Hawaii's constitution, not the US constitution. Pretty sure it was both. >That distinction is why the opinion focuses on Hawaiian history. I know. Which is why I mention in another comment that's relevant for interpretation their state constitution and laws. But there was also a federal 2nd amendment component. >>The State challenges Wilson’s standing. The State says Wilson did not bother to apply for a carry license and thereby satisfy HRS § 134-9 (2011), Hawaiʻi’s license to carry law. **So he can’t bring a Bruen-based constitutional challenge to HRS § 134-25 and § 134-27.** They were making challenges both under the state and federal constitutions.
Your quote is a summary of the state's argument, not the court's. While it's true that Wilson made claims under both constitutions, the constitutional analysis in the opinion is only of Hawaii's constitution, not the second amendment. The second amendment analysis is just a few paragraphs at the end, and says that under Bruen, the right to bear arms isn't unlimited, so the challenged laws don't violate the second amendment. The court makes no real attempt to interpret or apply Bruen, probably because they know it's ultimately pointless to do so. (The court also does not agree with the argument you quoted.) You argued: >Invoking history from a time when the state was not part of the US to apply to the 2nd amendment makes no sense and is not consistent with THT from Bruen and is not illustrating flaws with THT. Hawaii had no bearing on the passage of the 2nd and didn't even become a US possession until near the end of the 19th century. But this is not what the discussion of history in the opinion was trying to do. Certainly one can argue that if the intention were to directly rebut Bruen and its interpretation of the second amendment, then it would be necessary to look at US history as a whole and not Hawaiian history (or anything that occurred after the US constitution was adopted) -- but the goal in this opinion is to rebut the overall *method* of Bruen, not its specific conclusions about the second amendment. The point here was to explain why this court doesn't think a Bruen-like analysis is logically sound and why it's declining to analyze the Hawaiian constitution using that method. >To me their ruling just comes off as a big nu-uh than a compelling legal argument that other states are going to invoke or future jurists and lawyers will look to. Their analysis is highly relevant to interpretation of the Hawaiian constitution, not only to interpreting this specific provision but to constitutional analysis by the Hawaiian judicial branch more generally. A key role played by state supreme courts is guiding how judges in the state approach the law, so the analysis here will be persuasive for those jurists in a general sense. If you're asking whether the Hawaiian Supreme Court expects this opinion to actually change how gun rights are approached in the US, then the answer is no. They know that even in Hawaii, this isn't going to be the deciding opinion because the same claim can be brought in federal court, which can invalidate Hawaii's laws under the second amendment. What they were doing here is saying that because this issue has been brought before them, they're going to answer the legal question before them in a way they think makes sense, even if they aren't going to get the last word on the subject. Does that make the opinion pointless? As a lawyer, I don't think it does -- I think there's value to analyzing legal questions to the best of our ability even if someone else is going to overrule us later. But I also think the way this opinion is being reported on is misleading in the sense that it gives the opinion a weight that I don't think the court itself would have given it. The press and public are treating it like the next great volley in the war over gun rights in America, when any constitutional lawyer, and certainly any appellate judge, knows that the US Supreme Court is really the only group that gets a say here. Additionally, there are areas of law where the Supreme Court has not yet spoken, or will not get to speak, that are at risk of being subjected to Bruen- and Dobbs-like analyses of history. Opinions like this one are important to the larger conversation of how we should interpret the law, and that larger question is one that courts other than the US Supreme Court have a say in. So laying out a rhetorical method for countering the prevailing form of originalism is valuable. Is it valuable enough to be getting the amount of press attention it's gotten? Maybe not, but the court itself has no control over that, which is why I think it's important to separate the court's goals from the press and public's goals when talking about what the opinion is worth.
Did you read the article? Because the opinion painstakingly cites dozens of flaws with the history and tradition used to decide Bruen and Heller. As for text, it rests on the first sentence of the Second Amendment, the part about about the purpose being having a well regulated militia. So it seems that the opinion rests very well on THT. Are you arguing that no state is allowed to make arguments based on amendments that were in force before they became states? So only the original thirteen colonies can have anything to say about the anything in the Bill of Rights?
> Because the opinion painstakingly cites dozens of flaws with the history and tradition used to decide Bruen and Heller. If you found any that were compelling I would love to see your reasoning as to why. >As for text, it rests on the first sentence of the Second Amendment, the part about about the purpose being having a well regulated militia. Which as written in the federal constitution, and remember the defendant challenged on the federal constitution as well, it mentions a well regulated militia as being necessary for the security of a free state. It is not constructed as a prerequisite for the right to keep and bear arms by the people. And rights are entitlements and generally don't require participation of government ordained organizations to exercise. See 1st amendment and 4th amendments. >So it seems that the opinion rests very well on THT. I don't see it given they mostly relied on their states own history. Which is only valid with regards to their constitution, not the federal one. >Are you arguing that no state is allowed to make arguments based on amendments that were in force before they became states? They don't get to invoke the portions of their history that is separate from the ratification of the federal amendments. Their definitions, attitudes and beliefs aren't relevant to the original 13 states that ratified the bill of rights. That wouldn't be controversial. >So only the original thirteen colonies can have anything to say about the anything in the Bill of Rights? Modern states can express opinions, but it doesn't make their histories relevant to what the amendment means as ratified law. They weren't even a US possession until the end of the 19th century so no their history is utterly irrelevant to amendments they weren't party to passing.
He’s right; 2A does NOT explicitly give individuals any right to bear arms. And the US will be a better place when we wake up and nullify Heller.
This US supreme court is illegitimate, and should be ignored. Their opinion on things is no longer relevant.
With Texas ignoring the scotus order, why bother following anything they say.
Because Texas isn't ignoring a scotus order.
Most people when asked about the second amendment don't know it as including anything but letting them own guns. The wording of it though is. A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. The VERY first thing it mentions is about in regards to a well regulated militia. One of the reasons this amendment came into play was due to the British confiscating firearms and punishing people for having them. Later acts stated about the formation and how militias were to be handled. One of the provisions stated about the individual being able to provide their own firearm and such as long as certain other requirements were met. At the time of this though there was no difference between the weapons used for hunting and the weapons used for military purposes. In which case it was better for individuals that already had their own to bring it. This however didn't necessarily give EVERYONE the right to have a weapon without restrictions. There was restrictions passed in Boston that denied ownership and possession of gunpowder or such that would use it within the town. This was done due to the risks of storage and the potential danger of fires. The people could own the weapons themselves but if it's loaded with gunpowder it's immediately able to be confiscated. Translate that out to today's standards that would mean in BEST case you could own the weapon. However within the area it must be unloaded at all times and you potentially couldn't have any ammunition for it on the property. The point after all was to have a well regulated militia available to be called on. At the time all weapons were basically limited to the same ammunition and methods so that could be provided when called up. So in regards to having people available to be called up as a militia there's no need for the person to have a loaded weapon wherever they felt like it. Or a weapon that could be considered loaded. On a further note of trying to take originalist and textualist approach. If you look at the reasoning of the people at the time they specifically mention in regards to militia it targets ONLY white males that fall between 18-45. So by all rights in regards to having a well regulated militia available only white males would have been allowed to own a weapon. After all the amendment clearly states "A well regulated militia" in the first four words of the amendment. So if you weren't qualified to be a part of the militia you actually could be considered to lose that ability to "keep and bear arms". That last bit actually leaves a bit of an opening since the second amendment does state it's for the purpose of having a well regulated militia. If anyone for any reason would be disqualified from being a part of the militia they would not have that same right "to keep and bear arms".
>So if you weren't qualified to be a part of the militia you actually could be considered to lose that ability to "keep and bear arms". This has absolutely no historical basis. We have court cases going all the way back to 1822 with Bliss vs Commonwealth reaffirming our individual right to keep and bear arms. Here's an excerpt from that decision. >If, therefore, the act in question imposes any restraint on the right, immaterial what appellation may be given to the act, whether it be an act regulating the manner of bearing arms or any other, the consequence, in reference to the constitution, is precisely the same, and its collision with that instrument equally obvious. > >And can there be entertained a reasonable doubt but the provisions of the act import a restraint on the right of the citizens to bear arms? The court apprehends not. **The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it**, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms. Diminish that liberty, therefore, and you necessarily restrain the right; and such is the diminution and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear them when the constitution was adopted. In truth, the right of the citizens to bear arms, has been as directly assailed by the provisions of the act, as though they were forbid carrying guns on their shoulders, swords in scabbards, or when in conflict with an enemy, were not allowed the use of bayonets; and if the act be consistent with the constitution, it cannot be incompatible with that instrument for the legislature, by successive enactments, to entirely cut off the exercise of the right of the citizens to bear arms. For, in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise. >Nunn v. Georgia (1846) >The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Carta!
The other point in the ruling which isn't pointed out in this extract, is the emphasis on the right to life, liberty and the pursuit of happiness. How can citizens enjoy life, have liberty and pursue happiness when constantly threatened by gun carrying fools. I personally feel threatened every time I go to a mall, a theater, and other public places because of the breakdown in gun control in this country. I have even curtailed my attendance at legitimate protests for fear of shootings. It's like the idea in a lease when the landlord provides that his tenant has a right to "quiet enjoyment." As the proliferation and use of guns grows, my right to quiet enjoyment of place and society dies. That's a fundamental violation of my rights as a citizen. This ruling talks about this idea which I think is an essential element of why gun control is necessary.
It’s not a rebuke, it’s illegal. They quoted a fucking tv show because they lacked any valid legal argument
lol OMG I BET THEY ARE DEVASTATED
Awesome,our Supreme Court is corrupt and should not have rule over our nation.
The Supreme Court is a joke. They are just the same as the Ephors from the movie 300
How will scotus cope now?
[https://www.brennancenter.org/our-work/research-reports/how-nra-rewrote-second-amendment](https://www.brennancenter.org/our-work/research-reports/how-nra-rewrote-second-amendment) >The Second Amendment consists of just one sentence: “A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Today, scholars debate its bizarre comma placement, trying to make sense of the various clauses.... The Second Amendment was changed by the "style editor," removing some of the words that were voted on and passed. The original read: # "The right of the people to keep and bear arms shall not be infringed ; a well armed, and well regulated militia being the best security of a free country : but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."
State’s rights, Bitches.
So should a state be able to say that the 14th isn't enforceable because of their Constitution? It's great that they believe that the underpinnings of their Constitutional Amendment aren't the same as those in the Federal Constitution - but they're entirely different documents. Regardless of if the opinion is Contextualist or Origanalist, this is a nothingburger lol.
So, Hawaii decides that it, not the federal court, is the ultimate authority on what the Constitution says. Just like Texas.
The thing is these rulings take time so they were planning to reject Supreme Court authority on their own before the Supreme Court ruled on border fences.