Congratulations to Alan Gura, Clark Neily, and the rest of the attorneys who have worked on this. I hope I am able to get in to watch the arguments on this one, it should be interesting.
Can you get the blog template changed to set the titles as “ragged right” rather than “justified”? I believe this is the first post with a multi-line headline and it looks terrible.
I hope all you lawyers who believe in the right to bear arms and are supporting incorporation of the 2A are right, and that incorporation will somehow make us better off. I prefer to look at the fact that all of a sudden, a number of liberals like Jerry Brown are also supporting it. Now why do you suppose that is?
I assume that the right’s support is based on getting rid of those pesky laws passed by the usual cities, making it difficult to own guns. But have you asked yourselves what could happen if a conservative Justice retires and Obama appoints a Holder or a Hillary type liberal after incorporation?
Right now, yes, it is tiresome to keep having to fight the Chicagos and the DCs over and over as they try to evade the law. But in one fell swoop, a case before a newly liberal SCOTUS could detect a whiff of a previously hidden emanation from an obscure penumbra that the founders must have wisely inserted just so guns could be banned, and then every state and federal protection for gun ownership could be repealed all at the same time. The supremacy of “precedent” would then make it nearly impossible to reverse for a long, long time.
Take abortion for example. Would it have been easier to fight local and state laws that provided for unfettered abortion if Roe v Wade had not existed? Or do you think that the current situation is preferable, where every state that tries to put meaningful restrictions on it (parental notification, etc), gets shot down automatically by the “precedent” of Roe?
The amicus brief by the ACRU has an interesting discussion on how the Court can rely on the Privileges and Immunities Clause without overruling the Slaughter-House cases.
Issue: Whether the Second Amendment is incorporated into the Due Process
Clause or the Privileges or Immunities Clause of the Fourteenth Amendment
so as to be applicable to the States, thereby invalidating
ordinances prohibiting possession of handguns in the home.
So I’m not Chris 24601 anymore. Sigh. Hope they talk about whether “the 14A incorporates the 2A” is an analytic or a synthetic judgment. More urgency to getting that paper written now.
Once decided (in favor of incorporation I’ll assume) the question will be how long will Daley be allowed to drag his feet on allowing it to take actually effect? Certainly not before his 2016 Olympics. In Chicago political circles the Olympics is taken as a given.
(Far, far too many lucrative construction and service contracts to be delivered to political contributors to allow the thought of it going anywhere else to be sustained.)
My speculation is that he’ll make the actions of DC and Fenty look like greased lightning by comparison, finding multiple reasons to delay implementation for at least a decade.
“Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.”
geokstr: I hope all you lawyers who believe in the right to bear arms and are supporting incorporation of the 2A are right, and that incorporation will somehow make us better off. I prefer to look at the fact that all of a sudden, a number of liberals like Jerry Brown are also supporting it. Now why do you suppose that is?I assume that the right’s support is based on getting rid of those pesky laws passed by the usual cities, making it difficult to own guns. But have you asked yourselves what could happen if a conservative Justice retires and Obama appoints a Holder or a Hillary type liberal after incorporation?Right now, yes, it is tiresome to keep having to fight the Chicagos and the DCs over and over as they try to evade the law. But in one fell swoop, a case before a newly liberal SCOTUS could detect a whiff of a previously hidden emanation from an obscure penumbra that the founders must have wisely inserted just so guns could be banned, and then every state and federal protection for gun ownership could be repealed all at the same time. The supremacy of “precedent” would then make it nearly impossible to reverse for a long, long time.
What about incorporation would make that kind of action more likely than in the absence of incorporation? I can’t imagine it.
What I can tell you is why libs like Jerry Brown are supporting P&I incorporation. They’re hoping they can use the same theory to enforce other rights, unrelated to gun ownership, against state governments.
Take abortion for example. Would it have been easier to fight local and state laws that provided for unfettered abortion if Roe v Wade had not existed? Or do you think that the current situation is preferable, where every state that tries to put meaningful restrictions on it (parental notification, etc), gets shot down automatically by the “precedent” of Roe?
I think it would be a good thing for the country if firearm ownership got the same level of protection that abortion gets now. (Hmmm, does this analogy means that the state would not be able to prohibit handgun sales to minors?)
I live in San Francisco, where gun restrictions are only slightly tighter than they are in, say, North Korea, so I’ve got my fingers crossed on this one too.
If it’s “reasonable restrictions” we’ll need the 60x spotting scopes to find our right.
Agreed. The right should include possession of any weapon that can be carried by an individual member of the infantry, such as the following: bayonet, M-4 Carbine, M-9 Pistol, M-16/M-4/M-14 Rifles, M203 Grenade Launcher, M240B Machine Gun, M-249 Squad Automatic Weapon, M-24 Sniper Weapon, M-40A1/M107/M110 Sniper Rifles, M-1014 Joint Services Combat Shotgun, MP-5 Submachine Gun, AT-4 Anti-Tank Weapon, and Mk-23 pistol.
The big names are McDonald and Humanitarian Law Project, but I thought Carr v. United States sounded fascinating. It’s also an issue that has a lot of practical effect these days, as these sex laws have had a troublesome path. Here’s the issue from Scotusblog:
“Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.”
Soldier of Fortune: Agreed. The right should include possession of any weapon that can be carried by an individual member of the infantry, such as the following: bayonet, M-4 Carbine, M-9 Pistol, M-16/M-4/M-14 Rifles, M203 Grenade Launcher, M240B Machine Gun, M-249 Squad Automatic Weapon, M-24 Sniper Weapon, M-40A1/M107/M110 Sniper Rifles, M-1014 Joint Services Combat Shotgun, MP-5 Submachine Gun, AT-4 Anti-Tank Weapon, and Mk-23 pistol.
Mortars usually require a team to operate, so I would not include them. While you may think I am being sarcastic, I assure you I am not. There is no reason why the public should not be able to defend itself without the same weapons we allow our citizens in the military to possess.
PubliusFL:
What I can tell you is why libs like Jerry Brown are supporting P&I incorporation.They’re hoping they can use the same theory to enforce other rights, unrelated to gun ownership, against state governments.
This is it exactly. This cases seems to make strange bedfellows. You have conservatives praising incorporation and denouncing federalism, leftists denouncing incorporation and praising federalism, and then a third group who look at this and say “Wow, we’re not interested in the gun issue, but we could really use case’s outcome to get what *we* want.”
[...] Blog Title Home About Me Contact RSS Login << Coming to Chicago in 2016 | Home Keep your fingers crossed and off the trigger until ready to fire Supreme Court Agrees To Decide Whether the Second Amendment Applies to the States [...]
Soldier of Fortune needs to remember that even the Army doesn’t allow every soldier to operate all those arms. When it comes to arms it could settle along the lines of the requirements of Article 1 Section 8 clause 16 leaving access to those arms that a regular infantry man carries.
The AR-15/M-16 yes, the grenade launcher which is a designated position in the squad “NO”. Same for the SAW operator, the unit sniper, the Non-coms who usually carry the pistols and the submachineguns, etc. Even under the 1792 militia act the militia men had a limited choice of arms based on the caliber and bayonet requirements. Muskets Yes, rifles No.
Heller basically said that the Second recognises a right to permission to keep a gun in your house. I’m not sure that incorporating a ‘right’ that constrained would be much of a win.
What I can tell you is why libs like Jerry Brown are supporting P&I incorporation.They’re hoping they can use the same theory to enforce other rights, unrelated to gun ownership, against state governments.
—–
This is it exactly. This cases seems to make strange bedfellows. You have conservatives praising incorporation and denouncing federalism, leftists denouncing incorporation and praising federalism, and then a third group who look at this and say “Wow, we’re not interested in the gun issue, but we could really use case’s outcome to get what *we* want.”
Yes, yes, yes. The issue is actually less crucial than it formerly would have been both because of the use of the Due Process Clause to do the incorporation and the enactment of all sorts of civil rights laws, but if the conservative pro-gun types have to use the Privileges and Immunities Clause to get the Second Amendment to apply to the states, they may well discover that the Privileges and Immunities Clause might make the states subject to other federal rights, not all of which they might approve. So while the pro-gun result will look like a victory, the precedent that is established could bite them in the long run.
There is a wonderful book on the Privileges and Immunities Clause by Michael K. Curtis. It is No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights.
The first time a disgruntled (right-wing milita, left-wing ALF, Libyan/AQ/Palestinan/French terr’st) nutcase started lobbing M67s at the local mall, the second amendment will be repealed altogether.
PersonFromPorlock: Heller basically said that the Second recognises a right to permission to keep a gun in your house. I’m not sure that incorporating a ‘right’ that constrained would be much of a win.
Not if you live in much of the country, but it’s a huge difference if you live in Chicago or NYC or whatever.
PubliusFL:
What I can tell you is why libs like Jerry Brown are supporting P&I incorporation.They’re hoping they can use the same theory to enforce other rights, unrelated to gun ownership, against state governments.
Yet no one believes that the left, by incorporating the 2A, can then use this theory to get everything they want. As you said above, to “…enforce other rights…against state governments.”
With a one vote shift in the balance of SCOTUS, they can also then use an incorporated 2A “against state governments” once the new court finds the hidden emanation that says this is all about formal state militias, not individual rights to own guns.
Wow. After watching how the left operates for all these decades, and still not understanding how they operate. Reminds me of an old Abbott/Costello routine: “…inch by inch, step by step, slooowwwly I turned…”, and there stood the monster.
James N. Gibson: . . . Even under the 1792 militia act the militia men had a limited choice of arms based on the caliber and bayonet requirements. Muskets Yes, rifles No.
Incorrect. The militia act required certain arms, but did not limit them. To quote the act:
That every citizen . . . shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, . . . ; or with a good rifle, . . . ; and shall appear so armed, accoutred and provided, when called out to exercise or into service. . . .and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound
It further states:
That out of the militia enrolled as is herein directed, there shall be formed for each battalion, as least one company of grenadiers, light infantry or riflemen; and that each division there shall be, at least, one company of artillery, and one troop of horse: There shall be to each company of artillery, one captain, two lieutenants, four serjeants, four corporals, six gunners, six bombardiers, one drummer, and one fifer. The officers to be armed with a sword or hanger, a fusee, bayonet and belt, with a cartridge box to contain twelve cartridges; and each private of matoss shall furnish themselves with good horses of at least fourteen hands and an half high, and to be armed with a sword and pair of pistols, the holsters of which to be covered with bearskin caps. Each dragoon to furnish himself with a serviceable horse, at least fourteen hands and an half high, a good saddle, bridle, mail-pillion and valise, holster, and a best plate and crupper, a pair of boots and spurs; a pair of pistols, a sabre, and a cartouchbox to contain twelve cartridges for pistols. That each company of artillery and troop of house shall be formed of volunteers from the brigade, at the discretion of the Commander in Chief of the State, not exceeding one company of each to a regiment, . . .
So the militia, as formed under the act, had riflemen, horsemen, grenadiers and bombardiers and artillery units. Most of the items the men had to provide themselves. The men were clearly to have muskets as a minimum – but they could also have rifles, pistols and grenades and some likely provided artillery other fighting means available at that time. I sure as hell wouldn’t want to fight against a modern armed soldier using a 30-06 or a 12-gauge. One of the substantive reasons for the preservation of the right to bear arms was to guard against a tyrannical government and give the people the ability rise-up and overthrow tyranny. If that right is to have any meaning against a modern army, then the people need to have arms suitable to the task.
geokstr: With a one vote shift in the balance of SCOTUS, they can also then use an incorporated 2A “against state governments” once the new court finds the hidden emanation that says this is all about formal state militias, not individual rights to own guns.
The idea that the 2nd Amendment is all about formal state militias (and therefore protects a power of the state governments against infringement by the feds) is diametrically opposed to the idea that the 2nd Amendment could be incorporated against state governments. The Supreme Court would have to overrule any cases holding the latter if it wanted to embrace the former. If you disagree, I would like to see the argument that might be made by this hypothetical gun-grabbing court fleshed out a bit. I’m not saying some leftists wouldn’t like to see it happen or wouldn’t try to find a why to get there, I just don’t see how P&I incorporation of the 2nd Amendment itself is any help to them, because that would rest squarely on the premise that the right to keep and bear arms is a constitutionally-protected privilege/immunity of U.S. citizens.
PubliusFL: What I can tell you is why libs like Jerry Brown are supporting P&I incorporation. They’re hoping they can use the same theory to enforce other rights, unrelated to gun ownership, against state governments.
IIRC, California’s amicus brief said that it wanted the Court to take the case to incorporate the 2d Amendment and then “provide guidance” on what reasonable restrictions the state can enforce, i.e., essentially affirm California’s gun control laws.
With a one vote shift in the balance of SCOTUS, they can also then use an incorporated 2A “against state governments” once the new court finds the hidden emanation that says this is all about formal state militias, not individual rights to own guns.
And that would mean that the Federal Constitution does not forbid the states from impinging an iRKBA, nothing more.
The lack of a Federal iRKBA does not imply a Federal right to a lack of iRKBA. That’s just elementary logic.
Respectfully, I disagree. All things being equal, I’d rather be in an infantry company armed with .30-’06 semi-auto rifles w/20 round magazines facing another infantry company with the M-16/M-4A’s. I’ve used both in the military and .762x.51 (30-06) or x63mm (.308) are superior calibers in throw weight and range to the NATO “5.65mm” (M-16,etc.). The ability to engage an enemy with an arm of greater range should not be, but unfortunately has been, discounted.
disintelligentsia:
“I sure as hell wouldn’t want to fight against a modern armed soldier using a 30-06 or a 12-gauge.”
One of the substantive reasons for the preservation of the right to bear arms was to guard against a tyrannical government and give the people the ability rise-up and overthrow tyranny. If that right is to have any meaning against a modern army, then the people need to have arms suitable to the task.
I see this sort of argument from time to time. If that mindset is the basis for such strong devotion to the Second Amendment, I think that the appropriate adjective to describe it is “paranoid.”
If it’s “reasonable restrictions” we’ll need the 60x spotting scopes to find our right.
Patience, young Padawan! That’s a different issue for a different case. The Roberts court moves incrementally. Heller affirmed that there is an individual RKBA for self-defense not connected with any militia, at least in one’s home. McDonald will address whether the Second Amendment RKBA is incorporated against the states through the 14th Amendment (whether through selective due process or by reviving the long-moribund P/I clause). Your point goes to the NEXT case – perhaps Maloney out of the Second Circuit (the “nunchuk” Sotomayor case), as to the appropriate standard of review for Second Amendment restrictions, which could range anywhere from strict scrutiny to mere rational basis. And after the standard of review is set, then the Courts will likely get a wave of cases challenging particular restrictions. By the time the overall scope of the Second Amendment is finally settled, many of us will be old and gray. But that’s the way the system works…
The Court that relies on Scalia’s vote isn’t going to move more than one or two increments; Going any further would require upsetting laws the Supreme court has permitted to stand for decades, and Scalia is allergic to that sort of thing.
Pintler:
Not if you live in much of the country, but it’s a huge difference if you live in Chicago or NYC or whatever.
Yep. Indeed I would add something. To the extent that gun rights advocates are worried about the doomsday scenario where a tyrannical government confiscates weapons, Heller means quite a lot, because it provides the bedrock for the proposition that any governmental action that completely denies the legitimate right of law abiding citizens to own guns may be enjoined by a court.
I like Intelligentsia. He thinks I wouldn’t have an exact copy of the Militia Act in my files. In fact I have it as an appendix for my history for the war of 1812.
My corrections: First you failed to note the weight of shot requirement. Only a bullet 0.64 inches in diameter is of that weight, which just so happens to be the weight of the bullets for an Army Springfield Model 1795 musket. So the men were limited to a specific caliber of arms when in the infantry units.
Second, you noted that there were to be only a certain number of riflemen to musketmen in your second part. Do the math, it comes out to one rifleman to every 15 musketmen. And the men of the rifle companies, Grenadiers, Cavalry or Artillery were volunteers of which the battalion commanders could pick and choose from.
Third, understand the meaning of the words” You high-lighted Grenadier as if he’s a grenade thrower. Grenadiers in the late 1700s, early 1800s were assault troops, the grenade having gone out of fashion in the early 1700s. They were the strongest, tallest troopers, usually wearing a Bishops hat in battle. And they were usually organized as single units, not a specific person within a squad or platoon. Also, you high-lighted Bombardiers in the Artillery unit. What do you think a bombardier is? He’s just another member of the artillery unit manning the gun.
Fourth: you really blew it after that: and each private or matross shall furnish himself with all the equipements of a private in the infantry, until proper ordnance and field artillery is provided. There shall be to each troop of horse, one captain, two lieutenants, one cornet, four sergeants, four corporals, one saddler, one farrier, and one trumpeter. The commissioned officers to furnish themselves with good horses of at least fourteen hands and a half high, and to be armed with a sword and pair of pistols, the holsters of which to be covered with bearskin caps.. Some how you lost the transition from talking about the Artillery unit to describing the arms of the officer of the Cavalry.
I read the same Act you did, and I don’t think I particularly blew it. You’re exact quote from your comment was – “The AR-15/M-16 yes, the grenade launcher which is a designated position in the squad “NO”. Same for the SAW operator, the unit sniper, the Non-coms who usually carry the pistols and the submachineguns, etc. Even under the 1792 militia act the militia men had a limited choice of arms based on the caliber and bayonet requirements. Muskets Yes, rifles No.”
All I was pointing out was that rifles were part of the militia at that time and that the members that bore them provided them. The militia act set a MINIMUM REQUIREMENT for arm NOT A MAXIMUM. You were arguing in your comment, by reference to the 1792 Militia Act that we should not permit EBWs (Evil Black Weapons – aka AR-15/M-16 “assault-type weapons”) and other weapons such as grenades, etc.
I know what grenadier and bombadier were. Are you arguing that no grenades were used in the Revolutionary war or that no members of the militia owned artillery? Emphasizing grenadier lay out the fact that there was a history related to the grenade that went back that far – although it actually went back much further but never really took off until the advent of trench warfare during WWI (although there was limited use during the civil war). Grenades were not unknown to either side in the Revolutionary war. From Wikipedia:
The wide hats with broad brims characteristic of infantry during the late 17th century were discarded and replaced with caps. This was originally to allow the grenadier to sling his musket over his back with greater ease while throwing grenades (initially, only these troops were provided with slings). Additionally, a brimless hat permitted the grenadier greater ease in throwing the grenade overhand. By 1700, grenadiers in the English and other armies had adopted a cap in the shape of a bishop’s mitre, usually decorated with the regimental insignia in embroidered cloth. In addition to grenades, they were equipped with contemporary longarms. The uniform included a belt tube that held the match for lighting the fuse; this feature was retained in later grenadier uniforms. . . Grenade usage declined significantly in the early 18th century
As to “really blowing it” by “mixing the Artillery with officers of the cavalry” – you’re original comment was addressing what arms were permitted in the militia. Were the artillery and the cavalry not part of the militia? What was the Act addressing then?
You’re comment addressed the paucity of weapon choices for militia members and falsely stated that they weren’t permitted even rifles according to the 1792 militia act. I showed how your statement was categorically false and did not logically flow from the language of the Act. I was not undertaking a line-by-line dissection of the Act or its vocabulary but showing that the militia provided its own arms, that at a minimum had to be a musket and sufficient ammo, but could include rifles or artillery as their position demanded.
James N. Gibson: I like Intelligentsia. He thinks I wouldn’t have an exact copy of the Militia Act in my files. In fact I have it as an appendix for my history for the war of 1812.My corrections: First you failed to note the weight of shot requirement.Only a bullet 0.64 inches in diameter is of that weight, which just so happens to be the weight of the bullets for an Army Springfield Model 1795 musket. So the men were limited to a specific caliber of arms when in the infantry units.Second, you noted that there were to be only a certain number of riflemen to musketmen in your second part. Do the math, it comes out to one rifleman to every 15 musketmen. And the men of the rifle companies, Grenadiers, Cavalry or Artillery were volunteers of which the battalion commanders could pick and choose from.Third, understand the meaning of the words” You high-lighted Grenadier as if he’s a grenade thrower. Grenadiers in the late 1700s, early 1800s were assault troops, the grenade having gone out of fashion in the early 1700s. They were the strongest, tallest troopers, usually wearing a Bishops hat in battle. And they were usually organized as single units, not a specific person within a squad or platoon. Also, you high-lighted Bombardiers in the Artillery unit. What do you think a bombardier is? He’s just another member of the artillery unit manning the gun.
Fourth: you really blew it after that: and each private or matross shall furnish himself with all the equipements of a private in the infantry, until proper ordnance and field artillery is provided. There shall be to each troop of horse, one captain, two lieutenants, one cornet, four sergeants, four corporals, one saddler, one farrier, and one trumpeter.The commissioned officers to furnish themselves with good horses of at least fourteen hands and a half high, and to be armed with a sword and pair of pistols, the holsters of which to be covered with bearskin caps..Some how you lost the transition from talking about the Artillery unit to describing the arms of the officer of the Cavalry.
You got it backward. The 308 is a shortened 30-06 case, from 63mm to 51mm. But to your point, Some of the US military started using M-14s (.308) again in the Middle East wars over the M16/M4 (.223). Me, I’ll stick with my M1 Garand.
I’ve used both in the military and .762x.51 (30-06) or x63mm (.308) are superior calibers in throw weight and range to the NATO “5.65mm” (M-16,etc.).
If that mindset is the basis for such strong devotion to the Second Amendment, I think that the appropriate adjective to describe it is “paranoid.”
—-
Right. Because no democracy has ever been overthrown by a tyrant.
“It could never happen here.”
The only president whom I think we had to be careful about was Nixon. He had some people around him who really would have been happy to help him seize power.
I think that the real threat to our democracy could come from the fringe groups, many of them armed, that resent the immigrants, the Non-Christians, and the non-white people who they see as having taken over this country. They will claim to be liberating us (or at least many of us) from tyranny, but what is tyranny? From what I can tell, it is the guys in power whom you don’t like and want to overthrow.
The only president whom I think we had to be careful about was Nixon.
Nixon is long gone. Have you met the next president yet?
I think that the real threat to our democracy could come from the fringe groups, many of them armed, that resent the immigrants, the Non-Christians, and the non-white people who they see as having taken over this country.
I agree that the Christian Right idea of a Christian government is bad, but the movement will never have enough support to actually take over. There are similar groups on the left, just as resentful of conservatives. They are also too small to succeed.
The problem is that these groups will always be able to get firearms. The best protection against them is widespread gun ownership, so that the radicals being armed isn’t a great advantage.
The problem is that these groups will always be able to get firearms. The best protection against them is widespread gun ownership, so that the radicals being armed isn’t a great advantage.
I take it that you have little faith in the FBI and ATF.
troll_dc2: I take it that you have little faith in the FBI and ATF.
As long as the government leaves legal gun owners alone the FBI will have the time to stay on top of the most radical groups. If all the federal, state, and local LEOs are tied up trying to enforce widespread gun control, who will be watching the problem types?
You haven’t answered my question. You said one president might have tried to take over the country. What makes you sure the next one won’t? Or the one after?
You haven’t answered my question. You said one president might have tried to take over the country. What makes you sure the next one won’t? Or the one after?
There is no certainty about the future, it is true. But we are not Honduras or Venezuela; the other branches of the government will resist. (Of course, the military might be the deciding factor, in which case the guns in private hands won’t matter much anyway.)
I am actually more concerned about the possibility of civil war over social issues. We really are two countries (or more) on issues like gay rights and abortion. Private militias could kill a lot of people.
Heh, maybe we ARE Honduras, and after we kicked out the criminal President, the executive branches of the world would rise as one to demand we restore him to power.
There is no certainty about the future, it is true.
No, but the best predictor of the future is the past. If you take the long view, the US has existed for just over two centuries. How many centuries did the Roman republic last before a despot took over? How many democracies have survived 500 years before being ‘saved’ by the man on the white horse?
Will the US have to resist a takeover by a tyrant in the next 20 years? Almost certainly not. In the next thousand? Not so good a bet.
troll_dc2: I am actually more concerned about the possibility of civil war over social issues. We really are two countries (or more) on issues like gay rights and abortion. Private militias could kill a lot of people.
“We really are two countries (or more) on issues like gay rights, gun rights, and abortion.” FTFY
Look around the world. The most common characteristic of a country with private militias waging civil war is a ban on legally owned firearms that has disarmed those the militias prey on. You only have to look across our southern border for a prime example.
And the most dangerous conflict here in the U.S. isn’t between left and right, but between our left-right government and drug cartels. The drug dealers are the ones with the numbers and firepower to really challenge public order. The only saving grace there is that overthrowing the government would end prohibition and destroy the huge black market profits that fund the narco empires.
LarryA says:
Back to typing with my fingers crossed.
September 30, 2009, 7:17 amJeffH says:
Congratulations to Alan Gura, Clark Neily, and the rest of the attorneys who have worked on this. I hope I am able to get in to watch the arguments on this one, it should be interesting.
September 30, 2009, 7:22 amRedlands says:
Now if the court would only seriously consider relying on the privileges or immunities clause to analyze and decide the issue.
September 30, 2009, 7:22 amHoward Bowman, MD says:
Woohoo!
Lets hope they actually follow the Constitution on this….
September 30, 2009, 7:23 amPreston Earle says:
Can you get the blog template changed to set the titles as “ragged right” rather than “justified”? I believe this is the first post with a multi-line headline and it looks terrible.
September 30, 2009, 7:34 amGordon Langston says:
Incorporation is good but the key is level of scrutiny. If it’s “reasonable restrictions” we’ll need the 60x spotting scopes to find our right.
September 30, 2009, 7:55 amgeokstr says:
I hope all you lawyers who believe in the right to bear arms and are supporting incorporation of the 2A are right, and that incorporation will somehow make us better off. I prefer to look at the fact that all of a sudden, a number of liberals like Jerry Brown are also supporting it. Now why do you suppose that is?
I assume that the right’s support is based on getting rid of those pesky laws passed by the usual cities, making it difficult to own guns. But have you asked yourselves what could happen if a conservative Justice retires and Obama appoints a Holder or a Hillary type liberal after incorporation?
Right now, yes, it is tiresome to keep having to fight the Chicagos and the DCs over and over as they try to evade the law. But in one fell swoop, a case before a newly liberal SCOTUS could detect a whiff of a previously hidden emanation from an obscure penumbra that the founders must have wisely inserted just so guns could be banned, and then every state and federal protection for gun ownership could be repealed all at the same time. The supremacy of “precedent” would then make it nearly impossible to reverse for a long, long time.
Take abortion for example. Would it have been easier to fight local and state laws that provided for unfettered abortion if Roe v Wade had not existed? Or do you think that the current situation is preferable, where every state that tries to put meaningful restrictions on it (parental notification, etc), gets shot down automatically by the “precedent” of Roe?
Put the 2A in that context and see how it looks.
September 30, 2009, 7:56 amtroll_dc2 says:
The amicus brief by the ACRU has an interesting discussion on how the Court can rely on the Privileges and Immunities Clause without overruling the Slaughter-House cases.
September 30, 2009, 8:07 amOrder of the Coif says:
Cert was granted on this issue:
Issue: Whether the Second Amendment is incorporated into the Due Process
Clause or the Privileges or Immunities Clause of the Fourteenth Amendment
so as to be applicable to the States, thereby invalidating
ordinances prohibiting possession of handguns in the home.
Docket # 08-1521.
September 30, 2009, 8:16 amChris says:
So I’m not Chris 24601 anymore. Sigh. Hope they talk about whether “the 14A incorporates the 2A” is an analytic or a synthetic judgment. More urgency to getting that paper written now.
September 30, 2009, 8:23 amDonP. says:
Once decided (in favor of incorporation I’ll assume) the question will be how long will Daley be allowed to drag his feet on allowing it to take actually effect? Certainly not before his 2016 Olympics. In Chicago political circles the Olympics is taken as a given.
(Far, far too many lucrative construction and service contracts to be delivered to political contributors to allow the thought of it going anywhere else to be sustained.)
My speculation is that he’ll make the actions of DC and Fenty look like greased lightning by comparison, finding multiple reasons to delay implementation for at least a decade.
September 30, 2009, 8:24 amJosh B says:
The Question Presented is
The Court could have easily left P/I unresolved and focused on incorporation through the Due Process Clause. This seems like a huge shift and potential to revive Privileges or Immunities. For better or worse, who knows? Check out my blog post on this topic: http://joshblogs.wordpress.com/2009/09/30/question-presented-in-2nd-amendment-case-asks-about-privileges-or-immunities-clause/
September 30, 2009, 8:29 amdon't incorporate me bro says:
Sounds like a blockbuster. The question presented is a legal academic’s wet dream.
September 30, 2009, 8:29 amPubliusFL says:
What about incorporation would make that kind of action more likely than in the absence of incorporation? I can’t imagine it.
What I can tell you is why libs like Jerry Brown are supporting P&I incorporation. They’re hoping they can use the same theory to enforce other rights, unrelated to gun ownership, against state governments.
September 30, 2009, 8:47 amMalvolio says:
I think it would be a good thing for the country if firearm ownership got the same level of protection that abortion gets now. (Hmmm, does this analogy means that the state would not be able to prohibit handgun sales to minors?)
I live in San Francisco, where gun restrictions are only slightly tighter than they are in, say, North Korea, so I’ve got my fingers crossed on this one too.
September 30, 2009, 8:49 amSoldier of Fortune says:
Agreed. The right should include possession of any weapon that can be carried by an individual member of the infantry, such as the following: bayonet, M-4 Carbine, M-9 Pistol, M-16/M-4/M-14 Rifles, M203 Grenade Launcher, M240B Machine Gun, M-249 Squad Automatic Weapon, M-24 Sniper Weapon, M-40A1/M107/M110 Sniper Rifles, M-1014 Joint Services Combat Shotgun, MP-5 Submachine Gun, AT-4 Anti-Tank Weapon, and Mk-23 pistol.
September 30, 2009, 8:55 amGreg Dodge says:
The big names are McDonald and Humanitarian Law Project, but I thought Carr v. United States sounded fascinating. It’s also an issue that has a lot of practical effect these days, as these sex laws have had a troublesome path. Here’s the issue from Scotusblog:
“Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.”
September 30, 2009, 8:56 amfirst history says:
why libs like Jerry Brown are supporting P&I incorporation.
That and Brown is running for Governor.
September 30, 2009, 8:58 amMore says:
And mortars, etc.
September 30, 2009, 9:15 amSoldier of Fortune says:
Mortars usually require a team to operate, so I would not include them. While you may think I am being sarcastic, I assure you I am not. There is no reason why the public should not be able to defend itself without the same weapons we allow our citizens in the military to possess.
September 30, 2009, 9:33 amDaily Pundit » Huge Second Amendment News says:
[...] The Volokh Conspiracy » Blog Archive » Supreme Court Agrees To Decide Whether the Second Amendment… [...]
September 30, 2009, 9:57 amAngus says:
This is it exactly. This cases seems to make strange bedfellows. You have conservatives praising incorporation and denouncing federalism, leftists denouncing incorporation and praising federalism, and then a third group who look at this and say “Wow, we’re not interested in the gun issue, but we could really use case’s outcome to get what *we* want.”
September 30, 2009, 10:10 amSharp as a Marble - Keep your fingers crossed and off the trigger until ready to fire says:
[...] Blog Title Home About Me Contact RSS Login << Coming to Chicago in 2016 | Home Keep your fingers crossed and off the trigger until ready to fire Supreme Court Agrees To Decide Whether the Second Amendment Applies to the States [...]
September 30, 2009, 10:22 amJames N. Gibson says:
Soldier of Fortune needs to remember that even the Army doesn’t allow every soldier to operate all those arms. When it comes to arms it could settle along the lines of the requirements of Article 1 Section 8 clause 16 leaving access to those arms that a regular infantry man carries.
The AR-15/M-16 yes, the grenade launcher which is a designated position in the squad “NO”. Same for the SAW operator, the unit sniper, the Non-coms who usually carry the pistols and the submachineguns, etc. Even under the 1792 militia act the militia men had a limited choice of arms based on the caliber and bayonet requirements. Muskets Yes, rifles No.
September 30, 2009, 10:47 amPersonFromPorlock says:
Heller basically said that the Second recognises a right to permission to keep a gun in your house. I’m not sure that incorporating a ‘right’ that constrained would be much of a win.
September 30, 2009, 10:57 amtroll_dc2 says:
Yes, yes, yes. The issue is actually less crucial than it formerly would have been both because of the use of the Due Process Clause to do the incorporation and the enactment of all sorts of civil rights laws, but if the conservative pro-gun types have to use the Privileges and Immunities Clause to get the Second Amendment to apply to the states, they may well discover that the Privileges and Immunities Clause might make the states subject to other federal rights, not all of which they might approve. So while the pro-gun result will look like a victory, the precedent that is established could bite them in the long run.
There is a wonderful book on the Privileges and Immunities Clause by Michael K. Curtis. It is No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights.
September 30, 2009, 11:01 amOren says:
Don’t forget frag grenades either.
The first time a disgruntled (right-wing milita, left-wing ALF, Libyan/AQ/Palestinan/French terr’st) nutcase started lobbing M67s at the local mall, the second amendment will be repealed altogether.
September 30, 2009, 11:11 amPintler says:
Not if you live in much of the country, but it’s a huge difference if you live in Chicago or NYC or whatever.
September 30, 2009, 11:11 amgeokstr says:
Yet no one believes that the left, by incorporating the 2A, can then use this theory to get everything they want. As you said above, to “…enforce other rights…against state governments.”
With a one vote shift in the balance of SCOTUS, they can also then use an incorporated 2A “against state governments” once the new court finds the hidden emanation that says this is all about formal state militias, not individual rights to own guns.
Wow. After watching how the left operates for all these decades, and still not understanding how they operate. Reminds me of an old Abbott/Costello routine: “…inch by inch, step by step, slooowwwly I turned…”, and there stood the monster.
September 30, 2009, 12:33 pmDaily Pundit » Still Not Getting It says:
[...] The Volokh Conspiracy » Blog Archive » Supreme Court Agrees To Decide Whether the Second Amendment… [...]
September 30, 2009, 1:22 pmdisintelligentsia says:
Incorrect. The militia act required certain arms, but did not limit them. To quote the act:
It further states:
So the militia, as formed under the act, had riflemen, horsemen, grenadiers and bombardiers and artillery units. Most of the items the men had to provide themselves. The men were clearly to have muskets as a minimum – but they could also have rifles, pistols and grenades and some likely provided artillery other fighting means available at that time. I sure as hell wouldn’t want to fight against a modern armed soldier using a 30-06 or a 12-gauge. One of the substantive reasons for the preservation of the right to bear arms was to guard against a tyrannical government and give the people the ability rise-up and overthrow tyranny. If that right is to have any meaning against a modern army, then the people need to have arms suitable to the task.
September 30, 2009, 1:40 pmPubliusFL says:
The idea that the 2nd Amendment is all about formal state militias (and therefore protects a power of the state governments against infringement by the feds) is diametrically opposed to the idea that the 2nd Amendment could be incorporated against state governments. The Supreme Court would have to overrule any cases holding the latter if it wanted to embrace the former. If you disagree, I would like to see the argument that might be made by this hypothetical gun-grabbing court fleshed out a bit. I’m not saying some leftists wouldn’t like to see it happen or wouldn’t try to find a why to get there, I just don’t see how P&I incorporation of the 2nd Amendment itself is any help to them, because that would rest squarely on the premise that the right to keep and bear arms is a constitutionally-protected privilege/immunity of U.S. citizens.
September 30, 2009, 1:49 pmBumpjon says:
IIRC, California’s amicus brief said that it wanted the Court to take the case to incorporate the 2d Amendment and then “provide guidance” on what reasonable restrictions the state can enforce, i.e., essentially affirm California’s gun control laws.
September 30, 2009, 2:17 pmOren says:
And that would mean that the Federal Constitution does not forbid the states from impinging an iRKBA, nothing more.
The lack of a Federal iRKBA does not imply a Federal right to a lack of iRKBA. That’s just elementary logic.
September 30, 2009, 2:33 pmBuckoux says:
Respectfully, I disagree. All things being equal, I’d rather be in an infantry company armed with .30-’06 semi-auto rifles w/20 round magazines facing another infantry company with the M-16/M-4A’s. I’ve used both in the military and .762x.51 (30-06) or x63mm (.308) are superior calibers in throw weight and range to the NATO “5.65mm” (M-16,etc.). The ability to engage an enemy with an arm of greater range should not be, but unfortunately has been, discounted.
September 30, 2009, 2:43 pmtroll_dc2 says:
disintelligentsia wrote:
I see this sort of argument from time to time. If that mindset is the basis for such strong devotion to the Second Amendment, I think that the appropriate adjective to describe it is “paranoid.”
September 30, 2009, 3:19 pmzippypinhead says:
Patience, young Padawan! That’s a different issue for a different case. The Roberts court moves incrementally. Heller affirmed that there is an individual RKBA for self-defense not connected with any militia, at least in one’s home. McDonald will address whether the Second Amendment RKBA is incorporated against the states through the 14th Amendment (whether through selective due process or by reviving the long-moribund P/I clause). Your point goes to the NEXT case – perhaps Maloney out of the Second Circuit (the “nunchuk” Sotomayor case), as to the appropriate standard of review for Second Amendment restrictions, which could range anywhere from strict scrutiny to mere rational basis. And after the standard of review is set, then the Courts will likely get a wave of cases challenging particular restrictions. By the time the overall scope of the Second Amendment is finally settled, many of us will be old and gray. But that’s the way the system works…
September 30, 2009, 3:21 pmBrett Bellmore says:
The Court that relies on Scalia’s vote isn’t going to move more than one or two increments; Going any further would require upsetting laws the Supreme court has permitted to stand for decades, and Scalia is allergic to that sort of thing.
September 30, 2009, 4:10 pmDilan Esper says:
Yep. Indeed I would add something. To the extent that gun rights advocates are worried about the doomsday scenario where a tyrannical government confiscates weapons, Heller means quite a lot, because it provides the bedrock for the proposition that any governmental action that completely denies the legitimate right of law abiding citizens to own guns may be enjoined by a court.
September 30, 2009, 4:23 pmLarryA says:
Right. Because no democracy has ever been overthrown by a tyrant.
“It could never happen here.”
September 30, 2009, 9:03 pmJames N. Gibson says:
I like Intelligentsia. He thinks I wouldn’t have an exact copy of the Militia Act in my files. In fact I have it as an appendix for my history for the war of 1812.
My corrections: First you failed to note the weight of shot requirement. Only a bullet 0.64 inches in diameter is of that weight, which just so happens to be the weight of the bullets for an Army Springfield Model 1795 musket. So the men were limited to a specific caliber of arms when in the infantry units.
Second, you noted that there were to be only a certain number of riflemen to musketmen in your second part. Do the math, it comes out to one rifleman to every 15 musketmen. And the men of the rifle companies, Grenadiers, Cavalry or Artillery were volunteers of which the battalion commanders could pick and choose from.
Third, understand the meaning of the words” You high-lighted Grenadier as if he’s a grenade thrower. Grenadiers in the late 1700s, early 1800s were assault troops, the grenade having gone out of fashion in the early 1700s. They were the strongest, tallest troopers, usually wearing a Bishops hat in battle. And they were usually organized as single units, not a specific person within a squad or platoon. Also, you high-lighted Bombardiers in the Artillery unit. What do you think a bombardier is? He’s just another member of the artillery unit manning the gun.
Fourth: you really blew it after that: and each private or matross shall furnish himself with all the equipements of a private in the infantry, until proper ordnance and field artillery is provided. There shall be to each troop of horse, one captain, two lieutenants, one cornet, four sergeants, four corporals, one saddler, one farrier, and one trumpeter. The commissioned officers to furnish themselves with good horses of at least fourteen hands and a half high, and to be armed with a sword and pair of pistols, the holsters of which to be covered with bearskin caps.. Some how you lost the transition from talking about the Artillery unit to describing the arms of the officer of the Cavalry.
September 30, 2009, 11:30 pmdisintelligentsia says:
I read the same Act you did, and I don’t think I particularly blew it. You’re exact quote from your comment was – “The AR-15/M-16 yes, the grenade launcher which is a designated position in the squad “NO”. Same for the SAW operator, the unit sniper, the Non-coms who usually carry the pistols and the submachineguns, etc. Even under the 1792 militia act the militia men had a limited choice of arms based on the caliber and bayonet requirements. Muskets Yes, rifles No.”
All I was pointing out was that rifles were part of the militia at that time and that the members that bore them provided them. The militia act set a MINIMUM REQUIREMENT for arm NOT A MAXIMUM. You were arguing in your comment, by reference to the 1792 Militia Act that we should not permit EBWs (Evil Black Weapons – aka AR-15/M-16 “assault-type weapons”) and other weapons such as grenades, etc.
I know what grenadier and bombadier were. Are you arguing that no grenades were used in the Revolutionary war or that no members of the militia owned artillery? Emphasizing grenadier lay out the fact that there was a history related to the grenade that went back that far – although it actually went back much further but never really took off until the advent of trench warfare during WWI (although there was limited use during the civil war). Grenades were not unknown to either side in the Revolutionary war. From Wikipedia:
As to “really blowing it” by “mixing the Artillery with officers of the cavalry” – you’re original comment was addressing what arms were permitted in the militia. Were the artillery and the cavalry not part of the militia? What was the Act addressing then?
You’re comment addressed the paucity of weapon choices for militia members and falsely stated that they weren’t permitted even rifles according to the 1792 militia act. I showed how your statement was categorically false and did not logically flow from the language of the Act. I was not undertaking a line-by-line dissection of the Act or its vocabulary but showing that the militia provided its own arms, that at a minimum had to be a musket and sufficient ammo, but could include rifles or artillery as their position demanded.
October 1, 2009, 12:55 am2A incorporation « Stuff From Hsoi says:
[...] RKBA | SCOTUS will hear if 2A applies to the states. Lots of stories online about it like here, and then background reading [...]
October 1, 2009, 6:10 amCed says:
You got it backward. The 308 is a shortened 30-06 case, from 63mm to 51mm. But to your point, Some of the US military started using M-14s (.308) again in the Middle East wars over the M16/M4 (.223). Me, I’ll stick with my M1 Garand.
October 1, 2009, 7:30 amtroll_dc2 says:
The only president whom I think we had to be careful about was Nixon. He had some people around him who really would have been happy to help him seize power.
I think that the real threat to our democracy could come from the fringe groups, many of them armed, that resent the immigrants, the Non-Christians, and the non-white people who they see as having taken over this country. They will claim to be liberating us (or at least many of us) from tyranny, but what is tyranny? From what I can tell, it is the guys in power whom you don’t like and want to overthrow.
October 1, 2009, 8:47 amLarryA says:
Nixon is long gone. Have you met the next president yet?
I agree that the Christian Right idea of a Christian government is bad, but the movement will never have enough support to actually take over. There are similar groups on the left, just as resentful of conservatives. They are also too small to succeed.
The problem is that these groups will always be able to get firearms. The best protection against them is widespread gun ownership, so that the radicals being armed isn’t a great advantage.
October 1, 2009, 10:39 amtroll_dc2 says:
I take it that you have little faith in the FBI and ATF.
October 1, 2009, 12:34 pmPubliusFL says:
Not much more than in the DEA, let’s say.
October 1, 2009, 12:48 pmLarryA says:
As long as the government leaves legal gun owners alone the FBI will have the time to stay on top of the most radical groups. If all the federal, state, and local LEOs are tied up trying to enforce widespread gun control, who will be watching the problem types?
You haven’t answered my question. You said one president might have tried to take over the country. What makes you sure the next one won’t? Or the one after?
October 1, 2009, 1:17 pmtroll_dc2 says:
There is no certainty about the future, it is true. But we are not Honduras or Venezuela; the other branches of the government will resist. (Of course, the military might be the deciding factor, in which case the guns in private hands won’t matter much anyway.)
I am actually more concerned about the possibility of civil war over social issues. We really are two countries (or more) on issues like gay rights and abortion. Private militias could kill a lot of people.
October 1, 2009, 3:31 pmBrett Bellmore says:
Heh, maybe we ARE Honduras, and after we kicked out the criminal President, the executive branches of the world would rise as one to demand we restore him to power.
October 2, 2009, 3:55 amPintler says:
No, but the best predictor of the future is the past. If you take the long view, the US has existed for just over two centuries. How many centuries did the Roman republic last before a despot took over? How many democracies have survived 500 years before being ‘saved’ by the man on the white horse?
Will the US have to resist a takeover by a tyrant in the next 20 years? Almost certainly not. In the next thousand? Not so good a bet.
October 2, 2009, 5:44 amLarryA says:
“We really are two countries (or more) on issues like gay rights, gun rights, and abortion.” FTFY
Look around the world. The most common characteristic of a country with private militias waging civil war is a ban on legally owned firearms that has disarmed those the militias prey on. You only have to look across our southern border for a prime example.
And the most dangerous conflict here in the U.S. isn’t between left and right, but between our left-right government and drug cartels. The drug dealers are the ones with the numbers and firepower to really challenge public order. The only saving grace there is that overthrowing the government would end prohibition and destroy the huge black market profits that fund the narco empires.
October 2, 2009, 2:58 pm