There had been only three US Supreme Court cases that dealt with the second amendment. They all held that the second amendment was related to militia service [and] granted a collective right, not an individual right. This was considered pretty settled until the 1960s.
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They won the war in 2008 in a case called ‘The District of Columbia versus Heller’, when the Supreme Court held for the first time that the second amendment grants an individual right.
The nine justices of the US Supreme Court divided five to four along perfectly ideological lines. The conservatives said it grants an individual right, and the liberals all said, no, it grants a collective right.
Carl Bogus
Professor of Law at Roger Williams University in Rhode Island
January 26, 2016
How has the US gun lobby been so successful?
[Bogus is correct. As a name for this liar that is.
- The Bill of Rights, including the Second Amendment, does not grant rights. It protects preexisting rights. Read the words of the Second Amendment. Or read US v Cruikshank, “This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”
- I can only think of two Supreme Court cases directly addressing the Second Amendment before Heller, one being Cruikshank, and the other is United States v. Miller 59 S.Ct. 816(1939). Neither say anything at all about a “collective right”. Miller is sometimes misunderstood to imply something like that but that interpretation is obviously wrong. Read my comments on that here.
- The Heller justices were not divided on the issue of an individual versus collective right in regards to the Second Amendment. The four dissenting justices said, The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals.
Anti-gun people lie. It’s in their culture. It’s what they have to do to have any hope of making progress in their battle to eliminate our specific enumerated right to keep and bear arms.—Joe]
Had Miller’s attorney actually shown up for the USSC hearing and presented a case, the outcome would have been far different. As it was, the only relevant ruling to come from Miller was that a sawed off shotgun was not typical of a weapon that might be used in military or militia service – which was not even true at the time.
The interesting thing about that case is that the court recognized, very clearly, that the possession of a military or militia weapon would have been protected by the second amendment. The argument came down to whether the gun in question would qualify as a militia weapon.
Point that out to any Progressive and watch them go insane trying to wrestle their brain out of it.
That’s absolutely right, Lyle. Had Miller been caught with an AR-15, or even an M-16, the climate today would be different.
The guy is flat out wrong. He doesn’t have any clue at all about the actual precedents. To find out what the courts actually decided, Stephen Halbrook’s “That every man be armed” is a great reference, one that we all should read.
The Miller case is messy because the defendant’s attorney committed malpractice and got away with it. But to the extent that decision meant anything, it means that “weapons suitable for militia use” are protected. That clearly means, for example, that full-auto rifles are protected. It also means that short barrel rifles and shotguns are protected, because those are in fact useful for military/militia use. (The Miller decision did not hold that short-barrel shotguns are unfit for militia use — it said only that no evidence was brought forward that they are. Big difference.
Another case he may be thinking about is Presser v. Illinois. But that specifically had to do with a militia, and the fact that this militia was not an authorized one when the state has authority to regulate such. It doesn’t address the individual right to bear arms (as opposed to in militia organizations), other than to say that (as quoted by Halbrook) that “this right was not granted by the 2nd amendment, nor does it depend in any way on that amendment”. In other words, as others have pointed out, the 2nd amendment protects — rather than creates — this natural right.
OK, Progressives;
Grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant…
(is it out of your system yet?)
…grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant grant.
Alright. Maybe now you can stop saying it. I know you want government to be god, but it isn’t happening. No government ever has been or ever will be capable of granting a human right. Governments violate rights, and occasionally they recognize and protect a right, but they haven’t the power to grant a right or to eliminate a right.
The use of the word “grant” then, is a tell. Anyone who describes a right as “granted” you can dismiss out of hand as a clueless dolt or a liar, or a clueless, lying dolt.
Words mean things, and a person with any understanding of this issue would never use the G-word in that context.
Don’t overlook the fallacy of the argument that “we’ve always done it this way so it must be correct.” To make that argument is to say segregation was ok because we’d been doing it a long time, or slavery or any number of other egregious things….
friends:
typical leftist asshole, a liar to the core.
supreme court cases are decided upon the narrowest grounds possible. if they can be dealt w/ on a procedural or a rule based ground that is how they are dealt with.
the “constitutional issue” is not dealt with until it is a necessary ground to deal with it. if the ultimate ground of personal right was not presented to the court in previous cases, that was not the ground of decision.
in heller, the constitutional right of individuals was presented to the court, and that was the ground it was decided upon. and, upon the ground of “natural law,” at that: that is, the right to own guns predates/is antecedent to, the creation of the federal union.
mr. bogus, is in fact, “bogus.” it is, as a matter of fact, the facts are exactly opposite to what he stated. and that is, the law has always viewed the 2nd amendment for saying exactly what it says, and what is says, is that the right to possess firearms predates the government, belongs to citizens by natural law, and is in no way “granted” to citizens by the government. it is, in fact, our right to own guns. and, bear and keep them. regardless of what people like bogus say.
john jay
You know, not that long ago, Clayton Cramer found a reference to the “individual right” interpretation of “keep and bear arms”.
It was in a surprising place: a Supreme court opinion from 1973 about State laws regarding abortion.
It wasn’t a court case about the Second Amendment. But the published opinion quoted an earlier Supreme Court case, and appeared to assume that “the right to keep and bear arms” was an individual right.
That may have been US vs Verdugo-Urquidez.
Wow, I’m not even a lawyer and his reasoning and interpretation is clearly wrong.
As Penn and Teller pointed out in a skit a bit back, how is that the other 9 BORs all refer to the people and the Second Amendment supposedly applies to the silly idea that the government should have the ability to arm a militia for national defense (while elsewhere it is allowed to create an army). Also, that the BOR more often than not specifically forbids (e.g. double jeopardy) or limits the role of government (e.g. quartering troops) or demands that it provides something to the people (e.g. impartial speedy trials). It is not about limiting the rights of the people, it is about protecting them from the government.
This so called law professor should be stripped of his fake degree. He does not deserve it.
I’ve found two references for blowing all these bogus arguments away.
One is Halbrook, already mentioned. The other is “Stopping power” by J. Neil Schulman, available from Amazon and can also be read on-line at Neil’s website.
An interesting case cited by Halbrook is from before the 14th amendment, where the Texas Supreme Count held that the 2nd amendment, all by itself, clearly constrains not just the federal government but state governments as well. (That’s obviously correct; it doesn’t say “Congress shall make no law” as the 1st does, but rather is says “shall not be infringed” without placing any limitation on who it is that shall not do the infringing.)
Dred Scott observed that if Negroes were humans, they’d have RTKBA…an individual right.
“Citizens” not “humans”. But other than that nitpick you are correct.
Thanks for reminding me (and gracing us with your virtual presence).
Yes, and Oleg Volk made a beautiful photo to illustrate that point.
In reference to the MILLER decision:
Feds raid a still in 1939.. Nothing brewing, but they find a short-barrelled shotgun in the truck (along with a few bags of sugar, used to brew whiskey but they can’t prosecute anyone for having too much sugar).
The shotgun, however, is the only handle they have. So they indict the two guys in the truck for having an illegal firearm.
No decision. Various reasons which make little or no sense to the common man.
Time passes, the state decides to try to close the case and they bring it to the district court.
Stuff happens, no decision. One of the distillers dies, the other one moves out of state, and when the feds desperately try to renew the case the attorney for the surviving ‘bad guy’ can’t get his client to defend the renewed trial. So the attorney, who isn’t getting paid, decides not to reply to the new writ.
Higher court calls the case, and the only legal guy who shows up is the federal lawyer, who knows he doesn’t have a case but presents the case that the gun is not covered under the second amendment because it’s not a military weapon.
The case goes to court, and the decision is that it’s not a “military” arm. This in spite of the fact that “Trench Guns” exactly like this one were a common arm in WWI. But there was nobody there to plead for the defendant, and the court can’t legally admit the truth that the “Trench Gun Wanna-be” shotgun is a “military weapon”, so it finds for the state.
Which sets a precedence.
Ultimately, the entire “MILLER” decision, which has become case law and a precedent, is predicated on a trial in which there was no defense, and so the plaintiff (the state) presented a weak case but … the court had no choice but to rule on the only evidence presented, even thought it was not based on law.
All law is based on precedence, even when it is based on an uncontested assertion of the state.
Which is why the Miller decision is so important. It’s a lie, but nobody was there to defend the defendent(s).
http://www.law.nyu.edu/sites/default/files/ECM_PRO_060964.pdf
Considering the holes in the precedent (big enough to drive two tractor trailers through while Jean Claude Van Damme does the splits between them), you’d think it’d be ripe for overturning.