Reason's Brian Doherty, has an excellent article telling the fascinating story of the origins of the lawsuit that eventually resulted in the Supreme Court's decision in District of Columbia v. Heller. Brian shows how the suit was initiated and carried forward by a small group of libertarian activists and lawyers, sometimes in the face of surprising skepticism by the NRA and other gun rights supporters.
I differ slightly with Brian in so far as I think he may overstate the extent to which Heller will actually result in increased protection for Second Amendment rights. For the reasons I set out in this Legal Times article, I think that Heller's impact may well turn out to be extremely limited. Still, the Heller litigation was at least an important symbolic victory in so far as it led the Supreme Court to recognize for the first time that the Second Amendment establishes an individual right for gun owners as opposed to a "collective right" limited to militia members.
And to those who think we're out of the woods, I have but one thing to say. Bowers v. Hardwick.
We only 'won' by one vote, and the decision leaves lots of room for anti-freedom judges to quash us under their jack-boots.
For Letalis' point, I predict that the Obama will appoint several new justices, who will then grab the nearest gun case and ban all guns in private hands by fiat--with some narrow exceptions for guns the ultra rich like to shoot.
Bowers stood for 17 years. Historically it may seem we're in a heckuva big treeless area, but I think I see a tree way over there! Not out of the woods I say!
See, liberals judges hate stare decisis. It's kinda like Justice Thomas' Constitutional jurisprudence, only with less evidence it exists. That's cause it's a big secret till we wake up and all our guns are gone!
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The second amendment reiterates a pre-existing right, and reasserts the point that Article I does not empower Congress to pass a law infringing the pre-existing right of the people to keep and bear arms. The right to keep and bear arms is not a grant from the government to the people. It is the people keeping their foot on the neck of the government.
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I heartily concur with "won" being in scare quotes. The majority in Heller asserts the law in such a way that it tramples all over the 2nd amendment. In particular, it turns Miller on its head, legitimizing decades of bogus interpretation of the case and paving a clear path for government to make firearms possession an onerous (to the point of likely "illegal") undertaking.
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It's no matter, if the people prefer to be subjects rather than superior to those who govern them, then they deserve what's coming.
Social conservatives: the people who think the biggest threat to the nation is the possibility that someone, somewhere, might be having sex.
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Even that view isn't restrictive, depending on how one construes the word, "militia." Historically, the militia was the fraction of the population that was willing and able to wield deadly force. Quakers and Mennonites would be excluded. But if "militia" is roughly translated to mean "those people who will fight for their personal freedom," then the limiting effect of saying "only those people who are willing to fight may keep and bear arms" is tantamount to protecting an individual right. Any individual who possesses the will and ability to wield deadly force is self-proclaimed a member of the militia.
I can understand why NRA was skeptical at first. I seem to recall I came on board as a blogger before they did. But once they figured out this was going forward no matter what they did, they contributed to the case in some pretty powerful ways, including getting a majority of Congress to sign onto an Amicus brief. That's one of those things only NRA can do, and I think it made an impression.
Dude, put down the kool-aid.
And Ilya, you let the mask slip a bit, no? Admitting that Miller didn't acknowledge an individual right, contra-the happy shooting spinmeisters?
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Notice the logic of the Supreme Court in Miller focuses on the nature of the weapon, and not on whether or not Mr. Miller himself was "a member of the militia."
The militia in the time of the founding fathers was every available man between the age of 18-45 who wasn't deaf, blind, crippled, or Quaker. To say that that was only "the fraction of the population that was willing and able to wield deadly force" is highly erroneous as shown by the number of references to militia men not wanting to serve during the war of 1812. Militia returns for the period up to the war of 1812 show upwards of 60% of that portion of the population on the militia rolls. If you want to call it a fraction you can but then again anything below 100% is a fraction.
I never claimed that it did. On the other hand, I also don't think that it ruled against the existence of an individual right. Rather, Miller sidestepped the issue.
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I don't disagree. My comment "willing to fight" was meant to distinguish between those actually in service, from a larger of body that comprises those capable of (and not morally opposed to) service.
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Given that one is physically capable of fighting, one would not have to be pressed into service in order to a member of the militia.
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The contention that I reject is that a person must be enrolled or signed up as part of a state's organized military reserve in order to be in "the militia." One obtains the status of being part of the militia [in general] by having possession of the physical ability to bear arms, and lacking objection on pacifist religious grounds.
1. They were ever going to get better.
Even after '94, in which gun owners were largely responsible for catapulting the GOP into power, we got practically nothing from the GOP, and both Dole AND Bush ran in favor of increasing gun control. The GOP is only as pro-gun as it thinks it has to be, and that's not very pro-gun. Supreme court justices are nominated accordingly. Look at how many members of the minority in the Heller decision were nominated by Republicans.
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2. That the issue would never reach the Court unless we brought it there.
Sooner or later the Supreme court was going to take a 2nd amendment case, and if it wasn't a carefully crafted test case brought by 2nd amendment defenders, it was going to be a carefully crafted test case by gun controllers, designed to lose. And once the Supreme court ruled against us, it was going to be game over.
If you have no way out of the game, and we don't, you take your best shot even if it isn't very good.
Yes, in the next 8 years at least one will die or be unable to functions. Then we will lose it all.