Brady Center VP claims HELLER ruling creates "paradox"

[derby378]

The "results-oriented jurisprudence" of the majority is most evident in its treatment of the constitutional text. In Heller, Justice Scalia's textualism is transparently inconsistent and manipulative. In opposition to the "militia purpose" view of the Second Amendment, he advances numerous examples of the usages of the phrases "keep arms" and "bear arms" to refer to a non-militia right. For example, he cites a 1734 text providing, "Yet a Person might keep Arms in his House, or on his Estate, on the Account of Hunting, Navigation, Travelling, and on the Score of Selling them in the way of Trade or Commerce, or such Arms as accrued to him by way of Inheritance." How does he know this usage of "keep Arms" is unrelated to militia service? Because the context suggests that it refers to private activities alone. As to "bear arms," he cites various state constitutional provisions that guarantee "every citizen a right to bear arms in defence of himself and the State." We know "bear arms" includes a non-militia right in those provisions because of the context in which the phrase appears, particularly the phrase "defence of himself." These examples demonstrate that context is critical to meaning.

When it comes to the Second Amendment, however, Scalia interprets "keep and bear Arms" by ripping the phrase out of context; that is, by artificially separating the phrase from its stated purpose of ensuring a "well regulated Militia...necessary to the security of a free State." The issue is not whether "keep Arms" and "bear Arms" could have non-militia meanings in other contexts. The issue is the meaning of the phrase "keep and bear Arms" in the context of a provision declaring the importance of a "well regulated Militia...to the security of a free State." The closest contemporary usage of "the right of the people to keep and bear arms" was in the Massachusetts Bill of Rights, which provided that "the people have a right to keep and bear arms for the common defense," in a provision that also warned of the dangers of peacetime armies and urged civilian control of the military. How do we know that "keep and bear arms" in that provision did not refer to individual self-defense? Because its context says otherwise. In a similar way, the meaning of the same phrase in the Second Amendment is affected by the context supplied by the militia language. Only through highly selective reliance on context to derive meaning does Scalia arrive at his predetermined conclusion.

Full text here:

http://www.cato-unbound.org/2008/07/16/dennis-henigan/the-heller-paradox-a-response-to-robert-levy/

[tigereye]

1. I'm not a lawyer, but isn't part of the issue that Scalia is a pretty strict

constructionist? He typically doesn't like any rights that weren't clearly delineated by the founders, but for some reason here, he seems to remove the "rights" from their context.


I think he sometimes finds meaning in and convenient uses for, phrases from that time, in the same way that those he accuses of "legislating from the bench" do.

[JDPriestly]

2. Scalia is an ordeal to be survived.

[Callisto32]

3. Your reply suggests that...

you disagree with Scalia's reasoning that the right to keep and bear arms is an individual right of the people, as distinct from those members serving in standing armed forces. The point of contention, then would be the classic question of what is meant by the statement "A well regulated militia, being necessary to the security of a free state.." specifically whether the militia mentioned is the individual people as an ad hoc body, or the standing forces.

If one looks down the page of amendments in the Constitution, one will read the following passage in the Fifth Amendment: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger..." Take note that, here, the militia is separated quite explicitly from "land and naval forces."

The only meaning that I can gather from that is that the militia is considered in this language to be a distinct body separate from the standing land and naval forces and what could it be other than the body of the people as private citizens. Keeping in mind the meaning of "well regulated" in the context of the military meaning properly trained and equipped and ready to provide active service, the intent of the Second Amendment would seem to be keeping the people as the militia, distinct from the standing land and naval forces, in a state of good practice and equipment in arms as it may be necessary for the security of the state that they be raised as an active force.

[tigereye]

11. but doesn't the concept of militia nowadays scare the crap out of everyone?

(well at least the military and powers that be? ) "Happy birthday Tricia, I'm in the Michigan MIlitia" (per Moxy Fruvous one of my fave bands) ;)

That concept is very 18th century, isn't it? (said with some trepidation since this IS the gun forum...) ;) :hide:



my point was that even Scalia seems to use selective legal and historical reasoning when it suits him.

[SteveM]

13. Not even the reality of militia scares "the crap" out of me...

So I am certainly not bothered by the concept. Please note that Algiers Point, LA, formed a militia of sorts in the wake of Katrina to protect its neighborhood from roving looters and home invaders. "18th Century"? I don't think so. Look around the world. Trepidation isn't necessary, here.

Kates and Kleck in "The Great American Gun Debate," report that the great majority of legal scholars, con law professors, historians and political scientists who have written on the subject of the Second agree that the right is individual. This would include Laurence Tribe, once considered the poo-bah of the "militia clause" proponents until he changed his mind.

[Callisto32]

15. You said he took the rights out of their context.

I presume you mean that he took a right which is referring to militia service and applying it to the individual lives of the people, regardless of their status in a standing military body. I simply meant to show that militia service and individual, private lives are the same thing. If that is so, then the interpretation keeps the rights firmly withing their original context.

P.S. You don't need to hide behind a wall, I'm a pretty nice guy, really. O8) Though, if you are going to hang around here you may need one of these:

:tinfoilhat:

[tigereye]

16. how are those rights the same?

genuine question- since I've quit being a moderator, I have time to roam around previously unexplored (for me, anyway) regions of the board.

It appears that some states (including mine - PA) do view those rights as pretty much the same.( Granted I haven't read the actual legal text. It's interesting to me, since I wouldn't necessarily see them as the same.) For instance, my brother hunts, has a number of guns, but I highly doubt that he would see Constitutional language or PA law as meaning that his ability to possess a gun implies militia status or vice versa. Militia status seems like an archaic concept to me, at least in the historical sense. I would suppose that legal historians and scholars, and the folks upon whom the SCOTUS or other judges rely for analyses of precedent (as well current law), would take a more analytical view than my non-lawyer perusals...


Don't mind me, I'm fascinated by Supreme Court and other legal rulings, not only the gun issue.

[Boomer 50]

17. Something that needs to really be considered

is that there were people ready to apply the ruling in Heller to all of the Bill of Rights. The scary part is that they would have had grounds to do it had SCOTUS found in favor of DC.

We need to also consider something else... George Bush and his cronies have been systematically whittling away at our rights. Warrantless wiretaps (and the immunity for the phone companies that help), imprisonment without due process, etc. Many conservative gun owners have feared oppression by Democrats. We need to realize that the exact opposite is occuring. To favor disarmament in light of this is just asking for something bad to happen.

Think about it fellas.

[jody]

4. Read the dissents by Stevens and Breyer. If the Second does not protect RKBA as declared by PA, VT,

and other states, RKBA is protected as an un-enumerated right by the Ninth Amendment.

See discussion in http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=118x177461

[AtheistCrusader]

5. For those States that protect it.

I don't think every State specifically protects the 'right to keep and bear arms in defense of the individual or State' (as my State Constitution does).

[jody]

7. I believe the majority of states protect RKBA and there's still the 14th Amendment that must now be

considered in light of the Heller decision.

[bossy22]

6. scalia

pointed out that though those terms are usually used in context with a military meaning- that they can be used in other contexts as well- while giving examples

just cause A=B doesnt not mean A cannot also be equal to C

[jody]

8. See DU thread link below re Stevens dissent and my opinion about Breyer’s dissent.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=118x177461

Breyer said:

The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by JUSTICE STEVENS—namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern.

Breyer acknowledged that individual arms used for self-defense are the same ones used for militia duties. He as did Stevens word smithed the Second Amendment to support their positions that it protected a collective right but neither Breyer nor Stevens acknowledged that if the Second did not protect an individual right, then the Ninth Amendment protected that individual right.

There is no dispute that PA, VT, and other states declared the right to defend self and property is a natural, inherent, inalienable/unalienable right.

IMO the Heller decision can be interpreted as 5 justices believe the 2nd protects RKBA as an enumerated right and 4 justices believe implicitly the 9th protects RKBA as an un-enumerated right. :shrug:

[krispos42]

9. I don't see a paradox here

Yet a Person might keep Arms in his House, or on his Estate, on the Account of Hunting, Navigation, Travelling, and on the Score of Selling them in the way of Trade or Commerce, or such Arms as accrued to him by way of Inheritance."


Okay, if the Second said this:

The right of the people to keep and bear Arms, shall not be infringed on account of Militia service, a well regulated Militia being necessary to the security of a free State


I think their point might have come validity. But it doesn't.





Hmmmmm...

On the Account of Hunting, Navigation, Travelling, and on the Score of Selling them in the way of Trade or Commerce, or such Arms as accrued to him by way of Inheritance, the right of the people to keep and bear Arms, shall not be infringed.

Interesting...

[SlipperySlope]

12. Not only is there no paradox, any other reading WOULD create a paradox.

No only did the court come to a logically consistent position, but they came to the only possible honest position that Constitutional text, history, and precedent could support. It is the traditional Brady "state's right" position that is instead full of paradox.

What I think is hilarious is the desperate attempt being made to "position" the Heller decision as being of limited impact, as if it will ultimately allow all possible gun prohibition except for absolute bans on handguns. The absurdity of this analysis belies the terror the gun-controllers are feeling, now knowing that their entire facetious argument that the Second Amendment only protected a collective right has been destroyed.

Brady: "Well, the second, you know, only protects a collective right with no application to individuals."
SCOTUS: "No. In fact the second protects a personal and individual liberty."
Brady: "Oh, well, then it must be a teeny-tiny little personal right then, not hardly worth noticing, so long as you aren't completely prohibited handguns".
SCOTUS: "?"

[beevul]

10. I guess Henigan never heard of Patrick Henry...

I guess Henigan never heard of Patrick Henry, that or he just thinks he was some old dead rich white guy no one should pay any attention to...

"The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government - lest it come to dominate our lives and interests." -Patrick Henry

And yet Henigan tries to interpret it in ways that restrain the people...that from a brady bunch lawyer? I'm SHOCKED I tell you, SHOCKED. :eyes: :sarcasm:

I think hes stuck in history, pre-june 26 2008 specifically...where are those posters that keep tossing out reminders to get with the present, and where are their reminders to Henigan? I wonder if any of them will ask him when hes going to step out of his cave into the light... :rofl:

[Callisto32]

14. I suspect

he would be happier to dance around the fire and hope the rest of us keep watching the walls.