Republicans love judicial activism and love the current Supreme Court, the most activist in memory

[Stop Cornyn]

The Second Amendment provides "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 courts have interpreted this as a right of the people to keep and bear arms as necessary to foster a well-regulated militia. That is, the constitutional right to bear arms is the right of the state to have an armed national guard. The Second Amendment has not been interpreted as the "right" of an individual to own an AK-47 or a handgun or a sawed-off shotgun or an unregistered-unlicensed rifle.

I, personally, believe in an expansive reading of all ten amendments in the Bill of Rights and so I support the expansive reading of the Second Amendment, too. I am not averse to reading the Second Amendment as an individual right to bear arms. But that is NOT how the Second Amendment has been read by the courts. To expand the Second Amendment to encompass a previously unrecognized individual right would require, unquestionably, an act of extreme judicial activism and disregard for decades and decades of well-established judicial precedent.

When you hear some Republican moaning about judicial activism, please feel free to point out that we now have the most activist Supreme Court in recent memory and any expansion of the Second Amendment to encompass an individual right would be an act of breathtaking judicial activism.

[KansDem]

1. Sure, it's all too clear by now.

Republicans sport a "do what we say, not what we do" political philosophy.

Just look at the facts:

GOP has said for decades it's the "Party of Fiscal Responsibility," yet it is running up a $10,000,000,000,000 national debt with billions missing and unaccounted for in Iraq alone.

GOP has said for decades it's the "Party of Morality," yet scandal after scandal has surfaced involving GOPers and pedophilia, prostitutes, homosexuality*, scams and cons, etc.

GOP has said for decades it is "Party of Smaller Government," yet the GOPers have used government to 1) spy on Americans; 2) torture; 3) eliminate habeas corpus; 4) limit civil liberties, etc.

GOP has said for decades it is "Party of Family Values," yet the GOPers have used their reign to foist anti-family values in health care, education, jobs, finance, social programs, etc.

GOP has said for decades it is the "Party of Balanced Media," yet the GOPers use the media to advance neo-con propaganda while stifling dissent with censorship.

GOP has said for decades it is the "Party of Support the Troops," yet our veterans today are the most neglected vets in recent memory considering 1) extended tours of duty; 2) shoddy or lack of equipment; 3) poor medical care (Walter Reed); 4) poor or no planning in activating troops, etc.

GOP has said for decades it is the "Party of Life," yet the GOPers have killed over a million Iraqis and ignored health care for American children.

GOP has said for decades it is the "Party of Patriots," yet the GOPers have shredded the Constitution and Bill of Rights, and have attacked the foundations of democracy such as free and open elections, transparent government, and the will of the people.

GOP has said for decades it is the "Party of Competitive Capitalism," yet the GOPers have used government to curb competition by awarding billions of dollars to cronies through no-bid contracts and corruption.

GOP has said for decades it is the "Party of Strong Defense," yet GOPers sat idly by while Saudi Arabia attacked us on 9/11/01 and murdered 3,000 of our citizens.

I could go on, but I think this drives the point home.

Basically, Republicans are just the opposite of what they claim to be, hence "GOP" now means "Gang Of hyPocrites"

________
*I mention this because of the GOP's penchant to denounce gays and lesbians.

[racaulk]

2. I wish I could recommend your reply.

Most excellent post! You should consider starting a new thread with this as the OP.

:thumbsup:

[KansDem]

4. Thanks!

I must might do that... :hi:

on edit: Here it is! DU thread

[FreeState]

3. Very well said - K&R N/T

[Stop Cornyn]

7. Nice!

[DangerDave921]

5. But

So the 2nd amendment is a right of the STATE, whereas the other rights are the rights of individuals? Seems to be a disconnect there.

And to what courts are you citing? Using the phrase "the courts" is pretty broad when we have 50 states, as well as Federal district and appellate courts.

The 2nd amendment clearly applies to individuals' right to bear arms. Case closed. It is not an expansion of the 2nd amendment to rule that it is an individual right; it IS an individual right.

[Czolgosz]

6. That's simply incorrect. How is the Tenth Amendment an individual right?

[hansberrym]

10. You are being obtuse.

The tenth amendment refers to both the states and the people - plainly these are not the same.
The framers did not confuse the states and the people despite the claims of the collective rights advocates.


It is foolishness to claim that the second Amendment protects a right of the state when the actual wording is the right of the people.

[Stop Cornyn]

11. Here are some excerpts from recent court decisions:

Excerpt from Warin v. U.S. decided October 18, 2007:

"the Second Amendment confers only collective rights. See United States v. Bournes, 339 F.3d 396, 397 (6th Cir.2003); United States v. Napier, 233 F.3d 394, 402 (6th Cir .2000); United States v. Baker, 197 F.3d 211, 216 (1999); United States v. Ables, 167 F.3d 1021, 1027 (6th Cir.1999)."

Excerpt from U.S. v. Kelly decided August 14, 2007:

"Kelly also argues that the ban on semi-automatic assault weapons in section 922(v) violates his Second Amendment right to bear arms. The Second Amendment states that: “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.” We held in Love v. Pepersack, 47 F.3d 120 (4th Cir.1995), that the Second Amendment does not confer an absolute individual right to bear firearms. In that case we adopted the collective rights theory, interpreting the Amendment to protect the states' right to organize and arm militias. Accordingly, a person challenging a federal gun restriction must show that his possession of the gun “bore a ‘reasonable relationship to the preservation or efficiency of a well regulated militia.’ “ Id. at 124 (quoting United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 83 L.Ed. 1206 (1939))."

Excerpt from U.S. v. Hamblen decided June 21, 2007:

"Although the Sixth Circuit has not expressly adopted the Haney four-part test, this circuit has held that “the Second Amendment guarantees a collective rather than an individual right.” United States v. Warin, 530 F.2d 103, 106 (6th Cir.1976). Additionally, the Supreme Court has stated that a valid Second Amendment claim requires a defendant to establish that his possession or use of a weapon “has some reasonable relationship to the preservation or efficiency of a well regulated militia.” United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). Thus, at a minimum, Hamblen must assert a collective right by satisfying Miller."

Excerpt from Andrews v. U.S. decided May 03, 2007:

"We agree with numerous other courts that “the Second Amendment guarantees a collective rather than an individual right.” United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976); accord Stevens v. United States, 440 F.2d 144, 149 (6th Cir.1971); United States v. Kozerski, 518 F.Supp. 1082, 1090 (D.N.H.1981), aff'd mem., 740 F.2d 952 (1st Cir.), cert. denied, 469 U.S. 842, 105 S.Ct. 147, 83 L.Ed.2d 86 (1984); Annot. 37 A.L.R. Fed. 696, 706 (1978) (citing cases). That is to say, it protects a state's right to raise and regulate a militia by prohibiting Congress from enacting legislation that will interfere with that right. The Second Amendment says nothing that would prohibit a state (or the legislature for the District of Columbia) from restricting the use or possession of weapons in derogation of the government's own right to enroll a body of militiamen “bearing arms supplied by themselves” as in bygone days. United States v. Miller, 307 U.S. 174, 179, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). In sum, “he right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights the people may have depend upon local legislation....” Cases v. United States, 131 F.2d 916, 921 (1st Cir.1942), cert. denied, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943)."

I actually favor the recognition of an individual right to bear arms. My point is that whether or not I would recognize an individual right or you would recognize an individual right, that is not that law. and it has not ever been the law.

When the Supreme Court thinks that it might want to ignore literally thousands of prior judicial decisions to reconsider an issue, that is judicial activism. I'm not even saying that judicial activism is necessarily a bad thing (Brown v. Board of Education was an activist judicial decision). My point is that right-wing douchebags everywhere say that judicial activism is a terrible thing and, yet, their beloved Supreme Court is the most activist in Chief Roberts's lifetime.

[hansberrym]

14. Oh really?

My point is that whether or not I would recognize an individual right or you would recognize an individual right, that is not that law. and it has not ever been the law.



From the earliest court decisions, the right to keep and bear arms has been recognized as an individual right See Bliss, Nunn, etc. Even Aymette which stressed the common defense purpose behind the right to bear arms provision of the Tenn. constitution none-the-less interpreted it as a right of the citizen -not a right of the state, and not a right limited to only those enrolled in the state militia.




From Aymette:

But, with us, every free white man is of suitable condition, and, therefore, every free white man may keep and bear arms. But to keep and bear arms for what? If the history of the subject had left in doubt the object for which the right is secured, the words that are employed must completely remove that doubt. It is declared that they may keep and bear arms for their common defence. The word "common," here used, means, according to Webster: 1. Belonging equally to more than one, or to many indefinitely. 2. Belonging to the public. 3. General. 4. Universal. 5. Public. The object, then, for which the right of keeping, and bearing arms is secured is the of the, public. The free white men may keep arms to protect the public liberty, to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution. The words "bear arms," too, have reference to their military use, and were not employed to mean wearing them about the person as part of the dress. As the object for which the right to keep and bear arms is secured is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them is not, therefore, secured by the constitution.

Mike

[Stop Cornyn]

16. Bliss is a Kentucky state law case decided based on the Kentucky Constitution not the 2nd Amendment

and it was decided BEFORE the 14th Amendment which applied the Bill of Rights to the states. Likewise, Nunn is a Georgia state court decision.

[hansberrym]

17. No Shit Sherlock - how does your reply help your argument

earlier?

My point is that whether or not I would recognize an individual right or you would recognize an individual right, that is not that law. and it has not ever been the law.



The "right to bear arms" has been recognized as an individual right since the earliest cases. That is a fact.

[Stop Cornyn]

19. It has never been the federal interpretation of the 2nd amendment. What a Kentucky state court says

about the Kentucky Constitution wholly beside the point about whether there is a century of nearly uniform law holding that the 2nd amendment enshrines a collective right.

[hansberrym]

22. I see ...perhaps the right to bear arms in the various state constitutions

means something completely different than the right to bear arms in the Second Amendment. Is that your claim?



Nearly uniform law? The anti-individual rights advocates have created theories that do not hold water and are in fact contradictory of each other:


The Collective Rights theorists say the Limited Individual Right theory is too narrow a construction to be supported by text and that it hardly makes sense to say that there is a right for those in the military to keep weapons; the Limited Individual Rights advocates say that the States Rights theory does not fit the actual words (right of the people); and both the States Rights theorist and Limited Individual Rights advocates correctly point out that there is no historical basis for the Collective Rights theory.


The law developed over the last 70 years by various US circuit courts is hardly uniform -Silveira (Collective Rights) decision was crafted because the States Rights position of Hickman and other earlier decisions is so obviously flawed. Other circuits have adopted a limited individual right interpretation.


Lately the deniers have come up with still more variations (Saul Cornell and others) because the Collective Rights theory as in Silveira, which currently dominates, has no historical foundation and because it makes no sense to claim there is an exclusively collective right to keep and bear arms any more than to claim an exclusively collective right to change light bulbs. Obviously keeping and bearing arms refers to the actions of individuals so there must be some individual component which can not be denied even if the right is limited to collective purpose (as in Aymette).



Decisions of the circuit courts are not binding on the Supreme Court.

The Supreme Court does routinely (as they did in US v. Miller) look to state constitutional provisions regarding the scope of rights which are found in both the US Const. and state constitutions, I would say that how the various states have interpreted the right to keep and bear arms in thier own constiotution is not wholly beside the point of how the various circuits have ruled. In fact, a study of the court cases shows just how far out of step the US Circuit courts have been regarding their interpretation of the right to keep and bear arms.

A study of how the Supreme Court has interpreted the second amendment right to bear arms over the last 200 hundred years further shows that it is the recent US Circuit court decisions that are out of step.

[Stop Cornyn]

12. The Bill of Rights contains both individual and collective rights. The First Amendment, for example,

enshrines the collective freedom of the press and also the individual freedom of speech. Even the freedom of speech is both an individual and a collective right. The speaker has an individual right to speak and the public has a collective right to hear the speech.

[hansberrym]

15. Your shitting me....

Are you claiming that the freedom of the press is exclusively collective in nature -as the collective rights advocates claim regarding the second amendment?

Are you claiming that individuals can not claim a right to publish?

[Stop Cornyn]

18. I'm telling you that the courts have long held the freedom of the press is a public right held

collectively. It is also an individual right held by the publisher.

If the gun activist websites you follow are telling you that the Bill of Rights protests individual rights and not collective rights these baised sites with a specific agenda are misinforming you about your rights.

[hansberrym]

20. Thank you for admitting the obvious. The freedom of the press

is NOT an exclusively collective right.


Are you pretending that the Collective rights advocates are not claiming an exclusivel;y Collective right regarding the Second Amendment?

[Stop Cornyn]

21. I'm not pretending anything; trying to get your understanding of the consistution into this century

but there is no point in leading a house to water if it's already full of Kool Aid.

[hansberrym]

23. Convince this house full of kool aid, or anyone else who might be interested, that the concept of

an exclusively collective right to keep and bear arms makes any more sense than an exclusively collective right to change a light bulb.


Are you still pretending that the Collective Rights interpretation does not claim an exclusively collective right?


Do you care to defend such a notion -or will you continue to conflate it with the notion that rights such as the freedon of the press have both individual and collective components?

[Stop Cornyn]

24. Your argument is not with me. Your argument is with over a century of established case law. I'm not

opposed to the recognition of an individual right to gun ownership.

All I'm telling you is that when a court decides out of the blue that it would like to reconsider a well-established issue, that's called judicial activism. The job of reconsidering well-established laws is a legislative function and not a judicial function, and the usurpation of that legislative function by the judiciary is known as judicial activism.

But I'm not even saying judicial activism is a bad thing.

My point is that Republicans hypocritically whine about "activist judges" when -- in truth -- they LOVE activist judges who are willing to disregard thousands of prior legal decisions to invent new gun rights or to deny well-established reproductive rights.

[hansberrym]

26. I do argue with your claim that there is a

over a century of well-established case law.


The Supreme Court has never said that the right to bear arms is exclusively collective.
In fact what they have said over many cases is the opposite. You dismised my earlier post that had a link to a summary of Supreme Court cases which touched upon the second amendment because that summary was provided by Kopel, but you haven't provided any informastion to counter that the Supreme Court has many times interpreted the right to keep and bear arms of the second amendemnt as an individual right.


The various Circuit courts continue to make it up as they go. The Ninth Circuit recently changed its stance from States Rights(Hickman) to Collective Rights (Silveira). Other circuits hold to a Limited Individual Right theory (Silveira explicitly rejects this theory).
Now 5th and DC circuits have adopted the individual rights (so called Standard Model) position. That is not what one could call well-established case law within the Circuits.


If all you want to do is bash Republicans -have at it. But at least get your facts straight.

[Stop Cornyn]

28. It is not a claim. You can look it up on Lexis or Westlaw. It's well settled no matter what the NRA

is telling you to the contrary.

[hansberrym]

29. So now its not your claim, so you don't have to defend it. I see a pattern

forming. First you push the Collective Rights BS, then you say its not your theory and so you don't have to defend it.


Now YOUR claim, is not actually your claim -but is actually the claim of someone else, and so again you don't have to defend it.


If the question has been settled for the last hundred years as YOU claim, why did the 9th circuit revise Hickman's "State's Rights" interpretation and adopt a "Collective Rights" interpretation less than a decade later in Silveira?


When did the Supreme Court ever rule that the Second Amendment right to keep and bear arms is an exclusively collective right?

[1932]

8. And now they hate states' rights! The world has turned upside down.

[Stop Cornyn]

9. What can you expect from a bunch of judges who claim to be "pro-life" but promote the death penalty

at every opportunity?

These are judges who will ignore any principle and disregard any rule in order to reach the political result their patrons desire.

[hansberrym]

13. delete -misplaced reply

[Mythsaje]

25. I translate the 2nd Amendment to mean the right of self-defense...

I don't care about case law...all living beings, human or otherwise, possess this right. Guns were simply the most efficient way for humans to defend themselves at the time of the writing of that document. Still are, when you get right down to it.

A gun, theoretically, makes any person, regardless of size, the equal of any other. In this respect, it is a very democratic device.

[hansberrym]

27. So if the Supreme Court holds that Mr. Heller has a right to keep a firearm

so long as it is of the type that could contribute to common defense -as per the Supreme Court's earlier decision in US v. Miller -that would be ignoring precedent ?