McDonald v. Chicago: The Second Amendment Applies to the States

BTD has noted the dissent of Justice Stevens in today's decision in McDonald v. Chicago (opinion here) which holds, finally, that the Second Amendment is applicable to the States.

The majority opinion was written by Justice Alito. (This is probably the first time I've ever agreed with him.)

It is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. [More...]

Justice Clarence Thomas, in a concurring opinion, says he would have relied not on the due process clause of the 14th Amendment, but on the Amendment's Privileges or Immunities Clause. That clause holds:

“[N]o State . . . shall abridge the privileges or immunities of citizens of the United States.”

He was the only Justice to take that view. The decision does not open the floodgates. As the New York Times reports:

The majority said only that the right to keep handguns for self-protection at home is constitutionally protected. Justice Samuel A. Alito Jr., writing for the majority, reiterated the caveats in the Heller decision, saying the court did not mean to cast doubt on laws prohibiting possession of guns by felons or the mentally ill, those forbidding carrying guns in sensitive places like schools and government buildings or those regulating the commercial sale of firearms.

I agree with the decision as I have long been a supporter of Second Amendment rights. We need to vigilantly preserve all our Constitutional rights, and with the Third Amendment being obsolete, the Second Amendment is only one away from the Fourth.

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    Insane decision (5.00 / 1) (#5)
    by BobTinKY on Mon Jun 28, 2010 at 12:20:11 PM EST
    You quote:

    "It is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."

    And the supporting cite?  It is clear the ratifiers of the 14th Amendment, concerned as they were with slavery and civil rights, gave little if any thought to the theory that the 14th Amendment would result in the 2nd Amendment being applied to the states, i.e., "incorporated."  While the Framers in Philadelphia might have thought bearing arms a fundamental right, tying those original Framers to (and it is badly written & hard to read) to the Framers of the 14th Amendment and those ratifying it is absurd.  

    The City of Chicago and any other city or state  should be free to regulate the possession and use of firearms within its municipal borders as it sees fit.  Stripping this power away from states and localities will result in many more gun deaths.

    This is the sort of mixed up federalism practiced by this outrageously activist court and modern conservatives more generally.  Conservative favored rules are afforded federal if not Constitutional weight, whether through internatioanl treaties, statute or court opinions based on 5 justices' understanding of "history."  

    Have any of these self styled "originalists" ever once commented on the fact that single shot muskets, pistols and cannon were the firearms used at the time the 2nd Amendment was ratifiied?  They seem so fond of lecturing us as to the historic norms of 1789 when it otherwise suits their purpose.  But in this one case the Framers apparently wrote the 2nd Amendment to include multi chambered pistols, repeating firearms, tasers and all future weaponry.  Why not bazookas and nukes while we're at it?

    I am more conflicted on the substance (5.00 / 1) (#8)
    by andgarden on Mon Jun 28, 2010 at 12:34:21 PM EST
    of the issue  than on Scalia's conflict with Stevens over liberty and due process. There, I think it is clear that Stevens has the better of the argument.

    Here's My Problem with These Arguements (5.00 / 1) (#32)
    by ScottW714 on Mon Jun 28, 2010 at 01:58:50 PM EST
    "...the right of the people to keep and bear arms..."

    Some how the word 'arms' seems to be a given as meaning guns.  It's not, the word 'arms' as I understand it can mean anything from a slingshot to a tank.

    A strict reading of the second amendment would mean that I have the right to bear a bazooka or a missile which is absurd.  Yes, the original text arguers always assume arms means guns, which is clearly doesn't.  Either you read it word for word or you don't, and assuming one word 'arms' means guns doesn't jive, at all, with the original text.

    I like the call, in my opinion, everyone has the right to defend themselves.  How that evolved into carrying rifles and handguns in public is insane.  We are clearly at a point when the very arms described in the Constitution are being used for intimidation (unconcealed) which in my opinion is the exact opposite of what the Second Amendment was trying to accomplish.

    If someone is taking the word 'arms' to mean guns, specifically, then they are conceding that the original text needs clarification and that that right can be infringed upon by the twisting of what the actual word 'arms' is referring to.

    So either you read it as written and anyone (criminals included) can own any 'arms' or you understand that there are limits to a 200+ year old document, there isn't any middle ground.  Yet every arguement always finds it's way on the middle ground where the government can define the words 'arms' to mean guns, yet they can not infringe upon the guns (except criminals and crazy people) and by some miracle they can infringe upon larger 'arms'.

    With the way some law enforcement... (none / 0) (#35)
    by kdog on Mon Jun 28, 2010 at 02:06:40 PM EST
    and organized crime entities are strapped, we might need that right to a bazooka to have a fighting chance.  I don't think the question is that absurd at all...if your oppressor has a bazooka, you best get one too or bow down.

    What kdog said, and moreover (none / 0) (#71)
    by scribe on Tue Jun 29, 2010 at 07:05:55 AM EST
    what the lead commenter should do is take some time and browse what's out there for sale.

    In the first instance, there are things like machineguns out there for sale.  They're called "class III" or something similar, after the way the feds regulate, register and tax them.  Once you find some (it isn't hard), take a look at the sticker price.  Then take another look.  They cost in the many thousands of dollars (which, I suppose, is likely more a function of scarcity in the legal market than anything else).

    There are, I'm told, also things like bazookas out there, but they tend to be classed as "destructive devices" for regulatory purposes.  A "destructive device" is a difficult and problematic thing to own, but a far more problematic thing to actually use.  If you go and look at the statutes regarding what happens to those using (or wrongfully possessing) "destructive devices", you'll find that they quite easily fall into the statutory definition of "weapons of mass destruction" and, as a consequence, trigger really, really draconian criminal penalties.

    So, the knucklehead who thinks he's going to be able to go out and buy a bazooka to use to eliminate whatever supposed threat he's facing in the neighborhood is not only almost certainly mistaken, but also setting himself up for serious jail time.

    Assuming he could afford the darn things in the first place - not a safe assumption in these days of the Bush Depression.   Even a gun that sorta-resembles something military because it's black and clunky-looking is going to cost over a thousand dollars and bear a price premium precisely because it's nasty-looking.  That doesn't make it even close to the "best" home defense weapon (that title, most thoughtful people will agree, belongs to a shotgun with a short "deer" barrel and buckshot).

    The whole "right to keep and bear bazookas" anti-gun/pro-gun control argument has always been a straw argument, and one which fails of its own weight, once one examines the facts of the marketplace and the law.


    Just today, something directly on point (none / 0) (#80)
    by scribe on Tue Jun 29, 2010 at 03:32:35 PM EST
    The Sixth Circuit, affirming the conviction of a soldier who took home a helicopter rocket (it had inadvertently been left on the helicopter and the ammo dump had closed before he discovered it) and kept it in his garage, all violating the National Firearms Act (of 1934 which governs things like machineguns and destructive devices).

    Also note he got an extremely lenient sentence.


    Can someone please explain why.. (none / 0) (#1)
    by jbindc on Mon Jun 28, 2010 at 12:03:15 PM EST
    That the members of the Court, who are very big on reading the Constitution in an originalist text, always miss the  first clause of the 2nd Amendment that states "A well regulated militia, being necessary to the security of a free state..." As we are told by the originalists, the Founding Fathers were very particular about their wording (even though we all really know that the Constitution was written after much political bargaining) but this is a very specific clause.  Why did they put it in there, instead of just saying the last part of the Amendment?

    Why is that little nugget always ignored?

    I can explain why... (5.00 / 1) (#46)
    by nightraven on Mon Jun 28, 2010 at 03:34:44 PM EST

    The reason why the members of the Court miss the first clause of the 2nd Amendment is simple. Because literally reading that, "A well regulated militia, being necessary to the security of a free state..." when combined with what follows, "the right of the people to keep and bear Arms, shall not be infringed." means that the 2nd Amendment does NOT protect the right to self defense or to hunt, but rather to keep and bear any and all weapons necessary to resist the hostile intentions of a current modern army.

    Now...if you really want an honest opinion from the SC that would allow any citizen of the US to not only own a M-16, but also claymore mines, anti-tank weapons, and the like...you should continue raising this point LOUDLY

    Eventually the SC cases would get detailed enough to force this interpretation to light.

    Yes (none / 0) (#3)
    by squeaky on Mon Jun 28, 2010 at 12:18:29 PM EST
    It is curious. I have argued that the spirit of the 2nd amendment is not about hunting, a right that was taken for granted and did not have to be enumerated, but to defend against an oppressive forces either governmental or other.

    I do not see how anyone can defend themselves against threats without belonging to a well maintained militia. That seems to be totally illegal.

    As you point out, I never understood why individuals owning guns is the point that is always argued, while the part about the militia is never brought up.

    Could be that the major player in the fight is the NRA. Their market is individuals, not so much militias. And if militias were the ones who were designated to carry arms, the NRA would lose business.


    That nuggest isn't ignored (none / 0) (#4)
    by Romberry on Mon Jun 28, 2010 at 12:20:05 PM EST
    The clause is irrelevant to the right. It's a justification for the right, but it isn't necessary for the right to exist.

    Take this sentence...

    A well educated and literate populace being necessary to the security of a free state, the right of the people to keep and read books shall not be infringed.

    What's the right? If we discover that a well educated and literate populace isn't necessary to the security of the state, do we then say that people have no right to keep and read books?

    There's other issues as well. The scholarship on the 2A is extensive. Even Laurence Tribe reluctantly came to be persuaded by the overwhelming weight of the pro-2A scholarship and came down on the side of an individual right.

    Regardless of how you read the 2A, the fact is that the amendment itself (just like every other amendment in the Bill of Rights) does not grant any rights, it merely protects rights that the framers of the Constitution understood to be inherent. (See "We Don't Need No Steenking 2nd Amendment" for more on that.)

    I'm with Jeralyn on this issue. The right to keep and bear arms is fundamental. The court got this one right.


    Except (none / 0) (#6)
    by jbindc on Mon Jun 28, 2010 at 12:27:02 PM EST
    Your example is not a constitutional amendment.  Does this mean that in a cost cutting measure, you will allow Army troops to be quartered in your house?

    Non sequitur (none / 0) (#10)
    by Romberry on Mon Jun 28, 2010 at 12:48:56 PM EST
    Your entire reply makes zero sense. I have no idea what you're trying to say. Mostly it looks to me as if you're working overtime to miss the point. Congrats. You succeeded.

    No actual fighting you two (none / 0) (#11)
    by Militarytracy on Mon Jun 28, 2010 at 12:52:09 PM EST
    It disrupts people like me who need to understand :)

    Your point was (none / 0) (#12)
    by jbindc on Mon Jun 28, 2010 at 12:52:17 PM EST
    About books and a well educated public.  Since that's not an amendment - your point makes no sense.

    I'm asking you about the 3rd Amendment.  Seems pretty clear on it's face, but there's lots of room for interpretation, and the Founding Fathers certainly couldn't envision today's military.  So, would you host some soldiers at your house?


    No, that wasn't my point. (none / 0) (#13)
    by Romberry on Mon Jun 28, 2010 at 12:55:29 PM EST
    Not even close.

    You (none / 0) (#15)
    by jbindc on Mon Jun 28, 2010 at 12:59:18 PM EST
    And the Court, despite what they said, can't get around the first clause. They didn't have to qualify the right - all they had to say was "The right to bear arms shall not be infringed."

    Why didn't they do that? Was it because they were really afraid of the people and certainly did NOT want an armed population - goodness knows, they didn't really want everyone to vote?


    3rd Amendment (none / 0) (#14)
    by coast on Mon Jun 28, 2010 at 12:59:06 PM EST
    prohibits housing during time during time of peace, and during war only "in a manner to be prescribed by law".  If Congress tried to pass a law requiring housing of soldiers as a cost cutting procedure, I would imagine it would be deemed unconstitutional.  Are you asking hiim that if we are at war and a laws is passed prescribing how soldiers are to be housed would he obey the law?  For me, I would.

    That was my point (none / 0) (#16)
    by jbindc on Mon Jun 28, 2010 at 01:01:21 PM EST
    It's obvious on it's face, but I disagree and think it would be upheld.  We are "at war", even though it technically hasn't been declared. That's what I mean - the wording is pretty specific - why would they play fast and loose with only the wording of the 2nd Amendment when every other amendment was carefully crafted and did not need a "qualifier"?

    "Technically hasn't been declared" (none / 0) (#23)
    by coast on Mon Jun 28, 2010 at 01:26:57 PM EST
    Seems like an awfully big technicality to me, especially since you are arguing basically that words mean something with regards to the 2nd Amendment.

    I agree with you that the first part of Amendment can not be ignored.  My view is that they were speaking directly to the rights of states to organize Militias.  I don't believe the right of a citizen to have a gun was ever seen as a question to the founding fathers since it had been a right of English citizens for some 600 years.  So why would they need to state that right.


    Interesting (none / 0) (#29)
    by jbindc on Mon Jun 28, 2010 at 01:48:40 PM EST
    It was only a right of English Protestants under the "English Bill of Rights of 1689" - and wealthy Protestants at that.

    jb (none / 0) (#17)
    by sarcastic unnamed one on Mon Jun 28, 2010 at 01:06:00 PM EST
    you asked a perfectly reasonable question about the 2nd Amendment that was based on understanding the English language. Your question was answered equally reasonably.

    I didn't think we were arguing (none / 0) (#19)
    by jbindc on Mon Jun 28, 2010 at 01:11:54 PM EST
    It's called a "discussion" - until someone gets nasty and starts calling names.

    I have no beef with Romberry, just don't understand the comparison.


    That is not the point. (none / 0) (#22)
    by sarcastic unnamed one on Mon Jun 28, 2010 at 01:24:23 PM EST
    The point is that the made-up example he offered in response to your question about how to understand the English language of the 2A does not at all also have to be an amendment in order to explain the 2A's English language. Which his made-up example does very well.

    Why the Right? (none / 0) (#18)
    by squeaky on Mon Jun 28, 2010 at 01:10:15 PM EST
    It is clearly not a right that was meant to ensure that people can hunt with guns.

    Why do you think that the right was enumerated?


    Because the founders... (5.00 / 2) (#21)
    by kdog on Mon Jun 28, 2010 at 01:23:36 PM EST
    thought it plausible the government might one day f*ck with people who formed a well regulated armed militia and wanted to make clear it is to be allowed...I don't think they ever dreamed weapons for hunting and/or self-defense would ever be prohibited by the state.  Boy were they wrong!

    Yeah (none / 0) (#25)
    by squeaky on Mon Jun 28, 2010 at 01:32:25 PM EST
    Well as we discussed before, I am down with the militia part. But no one seems to be defending that part of the deal, just the part about owning guns.

    The fact that if we formed our well regulated militia, we would be monitored by the government, shut down, and put in jail in no time flat.

    What protection does having a gun afford without the training and power of a well regulated milita. Nada, imo.


    What protection does having a gun afford (none / 0) (#27)
    by sarcastic unnamed one on Mon Jun 28, 2010 at 01:38:15 PM EST
    What protection does having a gun afford without the training and power of a well regulated milita. Nada, imo.
    I would suggest there are many contemporary examples that would disagree with you. Unless your definition "well-regulated" is fairly low.

    Absolutely right... (none / 0) (#30)
    by kdog on Mon Jun 28, 2010 at 01:49:08 PM EST
    about the 2nd being effectively meaningless in regards to a well-regulated militia...no doubt if you formed one you would be harassed if not locked up.

    As for the protection a gun would afford, it's protection I don't want...but I must say if armed men broke down my door a gun might come in handy to protect my life, with or without proper training.


    I don't deny the need for some sort (none / 0) (#34)
    by Militarytracy on Mon Jun 28, 2010 at 02:04:27 PM EST
    protection.  I've always had a German Shepherd around though, even when I was a single mom.  I have never lived in any residence that has been broken into, and there was one time in the Springs I'm pretty sure a guy came to my door to case me, I was getting a really bizarre vibe when he said he needed to use my phone and that his car was up the street where I couldn't see it.  Then he saw my dog behind me and he waved me away and said he didn't need my phone anymore.  I suppose without the dogs I might feel compelled to get a gun with my husband in and out of here for long periods of time.  My father told me though that if I could not fathom actually shooting someone I should never ever buy a gun for protection.  If I pull it out and pause they will take it away from me and use it on me.

    I got robbed... (none / 0) (#38)
    by kdog on Mon Jun 28, 2010 at 02:16:11 PM EST
    in between dogs, wasn't home at the time.  Sure glad I've got my pooch now...best home security there is, imo.  

    Good advice from your dad...I'd rather get shot than shoot somebody, even a bad man.  I'll just bat a bad man with my Louisville Slugger back-up to the hound:)  


    I have a baseball bat in the hall closet too (none / 0) (#39)
    by Militarytracy on Mon Jun 28, 2010 at 02:20:06 PM EST
    It is in a bin holding mops and brooms.  I dunno if I would be wiser pulling that out.  But I like knowing it is there :)

    Dog (none / 0) (#64)
    by squeaky on Mon Jun 28, 2010 at 06:40:40 PM EST
    I had been burglarized twice when I lived in my old apartment. My dog, a 75 pound rottweiler mix, just sat there, I assume, probably hoping for some treats. And he looked very scary.

    Had he been trained to bark or be an aggressive dog, I fear he would have been killed or mortally wounded a burglar. From what I understand, if your dog hurts someone in your home, even if they break in, you are liable.

    The long and short, dogs for protection seem a bad idea to me. Mainly because it increases the chance that they will be killed, or harmed, which would be heartbreaking.

    I would rather lose possessions than a dog.


    Barking is good (none / 0) (#65)
    by MKS on Mon Jun 28, 2010 at 06:49:51 PM EST
    We have a female Golden Retriever, and she is the biggest chicken in the Universe, but, my, how she can bark!

    When some stranger comes by, she sounds worse than a wolf.   But just open the door and she will either run for the corner on the couch to hide, or gingerly come to the person waging her tale....

    Her barking is always a good deterent, I think.....  


    OK (5.00 / 0) (#66)
    by squeaky on Mon Jun 28, 2010 at 07:02:21 PM EST
    Well, personally barking dogs bother me, so I trained my dog not to bark. I understand the deterrent aspect, but if someone wanted to get in they could just kill the dog. Chances are a burglar would just go somewhere else after hearing the dog, but I loved that dog and did not want to train him to be a guard dog.

    He lived 12 years and as scary looking as he was he never got into a fight, or even growled at anyone. Great dog.  I used to chuckle, because I would walk through very dicey neighborhoods late at night and people would literally cross the street once they saw him. I guess it is true that I would not have walked in those places without him, so I did use him as a fake guard dog.. lol..


    My dogs are not trained to (none / 0) (#81)
    by Militarytracy on Tue Jun 29, 2010 at 09:10:28 PM EST
    be aggressive or bark in any special way.  My adult dogs tour the local libraries and visit children on special Dog Awareness get togethers and the kids hand feed them treats.  But my dogs do love me squeak and they wouldn't allow anyone to hurt me or my family or bust into my home.  That situation awareness does tend to go with the breed though.

    Nice (none / 0) (#82)
    by squeaky on Tue Jun 29, 2010 at 10:27:28 PM EST
    I was never threatened by anyone while I had the dog, so it is hard to know how he would react. He certainly was a one person type of dog, although he did have several very close human friends, besides me. IOW he was not interested in people other than the few he was close to.

    My guess is that he would have been very unhappy if someone attacked me, but I would not have been surprised if he just waited until the attack was over and then came over to make sure I was ok.


    The more apt comparison would be to schools (none / 0) (#20)
    by esmense on Mon Jun 28, 2010 at 01:23:00 PM EST
    and other institutions of learning, not books.

    "A well educated and literate populace being necessary to the security of a free state, the right of the people to establish and maintain schools shall not be infringed."

    Sitll, whether your amendment referred to an individual right to books and literacy or to a collective, state supported right to schools and other educational resouces that help provide literacy, there would be lots of room for disagreement, conflicted interpretation and argument (the same heated arguments we already indulge in over free speech and public education). Should, for instance, printed pornography, comic books, state secrets, assassination instructions and/or instructions on how to make a nuclear bomb be considered to contribute to "a well educated and literate populace?" What about religious books distributed through publicly maintained schools? That may further the notion of "liberty" for some, but abridge it for others. Etc., etc, and on and on.

    The fact is, there ARE inherent problems, for individuals and communities, in widespread, unregulated gun ownership. There are also benefits to individual gun ownership. But the conflict between harm and benefit balances differently for different individuals and communities -- hence the exercise of "liberty" in this matter is unlikely to be found in some blanket approach and the insistence that regulation never has a place.

    My sister and brother-in-law were attacked by a sniper last year in the parking lot of the hospital where she works as a nurse. The gunman had already killed an EMT (the mother of 4 children) as she was on her way to her car at the end of her shift. My brother-in-law saw the fallen EMT when he stopped by the hospital to give his wife a diet coke on his way out of town to watch his teenage son's basketball game. Unaware of the gunman, thinking the EMT had fallen on the ice, he ran into the emergency room to alert the staff. His wife was next one up in terms of response -- when she ran, with the emergency room doc following behind her, to administer aid to the woman the gunman started firing again, hitting her in the back and foot. As he was advancing toward her to finish her off my brother in law was able to get a pistol out of his truck and fire. That made the man back off and most likely saved my sister-in-law's life and perhaps the lives of others. (The man was later killed by law enforcement.) This happened in Montana and needless to say my brother-in-law's actions have been rightly praised and many gun advocates have been happy to cite this event as supporting their position. Which, yes, in part, it does. But my brother-in-law wasn't the only armed man in that parking lot -- there was also the murderous, mentally ill loner, attracted from out of state by some notion of greater freedom offered in this rural place. Can anyone seriously suggest that keeping a gun out of his hands in the first place wouldn't have been much better for all concerned?


    Is there some method, somewhere, (none / 0) (#24)
    by sarcastic unnamed one on Mon Jun 28, 2010 at 01:28:37 PM EST
    that you are aware of that is successful at keeping guns out of the hands of people who shouldn't have them?

    Nothing humans endeavor to do will ever be done (none / 0) (#28)
    by esmense on Mon Jun 28, 2010 at 01:40:56 PM EST
    perfectly or completely. That doesn't mean we shouldn't try. Do you think there should be no regulation of financial institutions and instruments, for instance, because fraud will still exist, regulation or not? Should we abandon all reasonable attempts to regulate immigration because people always have and always will slip into the country illegally? Of course not. How about regulating medical care and the food supply? Would you make the perfect the enemy of the good in those areas?

    There's no way we will ever be able to keep guns out of the hands of every person who will use them to do harm. But that shouldn't stop us from making reasonable attempts to do so. Just because there is no way to make life risk free doesn't mean we shouldn't ever take precautions against obvious dangers.


    You sum up your comment with this: (none / 0) (#31)
    by sarcastic unnamed one on Mon Jun 28, 2010 at 01:56:08 PM EST
    Can anyone seriously suggest that keeping a gun out of his hands in the first place wouldn't have been much better for all concerned?
    The answer, of course, is: "No."

    However that does not then equate to the falacious: "No. And, therefore, guns should be even more highly regulated than they are now, because more regulation would have kept a gun out of his hands in the first place."


    I did not argue, and don't believe, that more (none / 0) (#40)
    by esmense on Mon Jun 28, 2010 at 02:22:22 PM EST
    or regulation would have kept a gun out of his hand in the first place. And obviously the current level of regulation failed to do so in this case. (Who can know how many lives regulations that attempt to keep the mentally ill from owning guns has saved?)

    But I certainly don't accept the argument that because a mentally ill man got a gun (many guns, in fact) in this instance, no attempt should be made to keep the mentally ill from acquiring guns.

    If you want to argue against limits on gun ownership because of mental illness, criminal history, etc. you are going to have offer some better argument than that.

    My argument is this -- whether or not it could have kept a gun out of this particular individual's hands and prevented his victims' suffering -- such regulations can provide society in general with some increased, although of course not perfect, safety.

    I don't know, actually, what the laws are in Utah, where the man was originally from and where his mental problems had been apparent to family members and medical professionals. But I would hope that any and every community in this country would be interested in trying to keep guns out the hands of people with a history of mental health problems or violent criminality. I don't think doing so is in anyway an abridgement of the liberty contemplated by the founders in the 2nd Amendment.


    Strike the "or" from that first sentence (none / 0) (#41)
    by esmense on Mon Jun 28, 2010 at 02:23:17 PM EST
    But I would hope that any and every community in this country would be interested in trying to keep guns out the hands of people with a history of mental health problems or violent criminality.
    Are you suggesting that communities are not interested in and do not already have regulations trying to keep guns from people who shouldn't have them?

    Utah law:

    A firearm cannot be purchased, transferred, or possessed by a person who [...] has been found not guilty by reason of insanity or found mentally incompetent to stand trial for a felony, has been adjudicated mentally defective or committed to a mental institution, [...]

    Federal law:

    5.Anyone who has been adjudicated as a mental defective or has been committed to a mental institution.[...]
    9.Anyone that is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner. (added 1996)
    10.Anyone who has been convicted of a misdemeanor crime of domestic violence (added in 1996 by the Domestic Violence Offender Gun Ban, or "Lautenberg Amendment.")

    Utah is whacked (none / 0) (#51)
    by MKS on Mon Jun 28, 2010 at 03:55:55 PM EST
    They allow guns on campus.....It is part of an anti-government bent going back to polygamy.

    Wyatt Earp and the citizens of Tombstone knew about too many loose guns....

    Wonder how many support Earp today....


    Yet VT and NIU and other non-UT (none / 0) (#53)
    by sarcastic unnamed one on Mon Jun 28, 2010 at 04:10:19 PM EST
    college campuses are the ones with the shootings...

    So, the NRA says (none / 0) (#54)
    by MKS on Mon Jun 28, 2010 at 04:25:26 PM EST
    But there is a difference between correlation causation.

    Fortunately, we don't have enough campus shootings to really draw any firm conclusions....


    Could not agree more. (none / 0) (#57)
    by sarcastic unnamed one on Mon Jun 28, 2010 at 04:44:50 PM EST
    I guess I don't know what argument you are (none / 0) (#52)
    by esmense on Mon Jun 28, 2010 at 03:59:56 PM EST
    trying to make. If you have no problem with regulations that make some attempt to keep the mentally ill from getting guns and using them to harm themselves and others, what did you find objectionable about what I wrote?

    Yes, I think everyone would have been better off IF man who committed the murder and injury I described had been prevented from acquiring the gun he used. Don't you? The fact that, in this case, such mayhem wasn't prevented in no ways argues against regulations intended to keep guns out of the hands of people like him, or proves that such regulations are never useful.

    By your cracked logic, I guess we could argue that my brother in law shouldn't have used the hand pistol in his truck to keep the assailant from coming forward because at that distance a he rifle would have provided a better chance of actually hitting him.


    More guns generally means (5.00 / 1) (#55)
    by MKS on Mon Jun 28, 2010 at 04:31:29 PM EST
    more bullets flying through the air....

    But is interesting that the introductory clause of the Second Amendment is talking about militias, but the current gun rights arguments are centered on personal safety from criminals....

    If the introductory clause is not restrictive, as individual rights advocates argue, then it is certainly at the very least illustrative.  That would mean the Second Amendment grants, among other things, everyone a right to the same arms as a militia....that means RPG's and missiles....And that is where this road has to lead if you accept the individual rights theory.


    Facts are inconvenient, (none / 0) (#56)
    by sarcastic unnamed one on Mon Jun 28, 2010 at 04:43:23 PM EST
    I understand your frustration with them.

    What are you arguing? (none / 0) (#62)
    by esmense on Mon Jun 28, 2010 at 05:57:47 PM EST
    It's not your facts (if by facts you mean legal statutes that restrict gun ownership for the mentally ill), its the use you are attempting to put them to that is totally unclear.

    Also unclear is what argument you think I am making that you are supposedly refuting?

    I haven't a clue.

    Sarcasm in the aid of a point can sometimes be delightful. But no point except sarcasm seems to exist here.


    There are already (none / 0) (#60)
    by Chuck0 on Mon Jun 28, 2010 at 05:20:25 PM EST
    regulations to keep guns out of the hands of the mentally ill. What else do you want?

    Where did I write anything that suggested I (none / 0) (#63)
    by esmense on Mon Jun 28, 2010 at 06:18:50 PM EST
    wanted anything? I wasn't arguing against guns for self-protection -- If anything I was arguing that guns may not be enough.

    I made the sensible observation that while it was a good thing that my brother in law's access to a gun helped prevent a gunman from doing even worse damage than he had already done, it would have been even better if a horrible incident in which a woman died, 4 children were deprived of a parent, two other people were injured (one of them in ways that will affect the quality of her life for the rest of her life) and a mentally ill man eventually was killed by law enforcement had been prevented entirely.

    What do I want? I want both. Sensible law that allows citizens to protect themselves, and sensible regulation that helps limit the situations in which they may be required to protect themselves.

    Isn't that what you want too?  


    It would be a dream come true... (none / 0) (#26)
    by kdog on Mon Jun 28, 2010 at 01:36:56 PM EST
    to keep a-holes from ever getting strapped, I just don't know how you do it without denying the basic human right of self-defense...we can't uninvent the blasted things unfortunately.  

    If armies and police forces are gonna have 'em, the individual citizen must have the right as well.  


    What are "arms?" (none / 0) (#49)
    by MKS on Mon Jun 28, 2010 at 03:47:56 PM EST
    Assault rifles?  Grenades?  Mortars? Bombs?  Stinger missiles?

    Back in the day, all you had were muskets and small cannons.....And arms meant everything then available--which wasn't much.

    There is no restriction in the wording of the Second Amendment according to the indidividual rights view--as the introductory clause is deemed irrelevent....

    The Second Amendment was not meant as protecting  someone's right to have an "arm" to defend against crime.  That runs contrary to the introductory clause.....But that is the gloss given by the court today.


    Crossbows (none / 0) (#50)
    by jbindc on Mon Jun 28, 2010 at 03:50:48 PM EST
    Knives, Axes, Maces, RPG's?

    All of the above guys... (none / 0) (#58)
    by kdog on Mon Jun 28, 2010 at 05:10:50 PM EST
    It sucks, I know:)...but I'm fairly sure the founders wanted we the people to keep up with the competition in defense of liberty...otherwise they woulda said "bear muskets".  Fairly sure they were thinking about a tyrannical federal government as well as foreign powers.

    Where can I get me a SAM missile? (none / 0) (#59)
    by MKS on Mon Jun 28, 2010 at 05:17:34 PM EST
    Surely somewhere in the bowells of the NYC subway they have got to have stingers, TOW missiles, RPGs, etc.....

    I don't agree (none / 0) (#47)
    by MKS on Mon Jun 28, 2010 at 03:40:31 PM EST
    It had been interpretated as a collective right by the Supreme Court in the past.

    The introductory clause is best read as restrictive imo.....

    That the Bill of Rights would protect a "right" to violently overthrow the government seems anomalous.

    These are 5-4 decisions so the result is hardly obvious....

    If the hypothetical amendment on reading books was so restriced, then, yes, so would the right.  Our First Amendment in reality has no content restriction......So, borrowing on our natural antipathy to content restriction makes the hypothetical persuasive to some.  So, the hypothetical is misleading....



    I don't often agree with you (none / 0) (#48)
    by jbindc on Mon Jun 28, 2010 at 03:45:27 PM EST
    But you said it much more coherently and succinctly than I did.

    Goes to show you what happens when you try to discuss something like this and are doing 5 other things at the same time.


    I don;t know how anyone can read that in (none / 0) (#7)
    by BobTinKY on Mon Jun 28, 2010 at 12:31:25 PM EST
    the context of the Constitution replacing the Articials of Confederation, the pre Civil War fixation with states' rights (as Shelby Foote so well explained pre Civil War "The United States are . . ." & post Civil War, "The United States is . . .")and not understand that the 2nd Amendment prohibited the Federal Government from controlling the right to bear arms so that states could remain free to raise militias, or not.

    I especially have a hard time seeing how a self proclaimed literalist or orginalist can elicit a different intention and meaning.  

    And if the 2nd Amendment as written is for the benefit of states how then can the 14th Amendment incorporate the 2nd to impose a prohibition on those same states?


    It was a civil rights issue (none / 0) (#73)
    by Rojas on Tue Jun 29, 2010 at 08:22:43 AM EST
    Did the reconstruction congress believe they were extending second amendment privileges to the Freedmen when they authored the Fourteenth? I believe the record reflects that they did.

    What would the founding fathers say if alive today (none / 0) (#2)
    by Saul on Mon Jun 28, 2010 at 12:10:01 PM EST
    I honesty believe if you can magically bring back the founding fathers and show them 200 years of SC decisions they would they shake their heads on many of the decsisons and say  

    "No no that is never what we meant when we wrote the Constitution"

    The three most influential lobbyist groups is ever are


    Dueling banjos :) (none / 0) (#9)
    by Militarytracy on Mon Jun 28, 2010 at 12:48:47 PM EST

    Racist roots (none / 0) (#33)
    by Abdul Abulbul Amir on Mon Jun 28, 2010 at 02:01:52 PM EST

    Given gun control's racist roots it is most fitting that McDonald came out on the same day the Senate's last (ex)Klansman went to his reward.

    You got a point there... (none / 0) (#37)
    by kdog on Mon Jun 28, 2010 at 02:10:35 PM EST
    the Black Panthers looked pretty well regulated to me....a lot of good the 2nd did them.

    However, (5.00 / 1) (#61)
    by Chuck0 on Mon Jun 28, 2010 at 05:23:23 PM EST
    the Black Panther party was rightfully exercising their rights and had every legal right to do arm themselves. They were even within the law of CA at the time. They were certainly treated unfairly and denied their 2nd Amendment rights.

    Who needs the 2nd (none / 0) (#42)
    by Abdul Abulbul Amir on Mon Jun 28, 2010 at 02:39:07 PM EST

    when you have the DOJ on your side?

    LOL... (none / 0) (#43)
    by kdog on Mon Jun 28, 2010 at 02:48:20 PM EST
    I'm sure the DOJ was just running late when the Oakland P.D. pulled shotguns on Huey and his family.

    I hope I can skate through my existence without such a wake-up call.


    Ancient history (none / 0) (#67)
    by Abdul Abulbul Amir on Mon Jun 28, 2010 at 09:00:27 PM EST

    That was then, times change, now the Panthers can intimidate voters and the DOJ will drop the case and stonewall the Civil Rights Comission.

    And the answer is....... (none / 0) (#36)
    by NYShooter on Mon Jun 28, 2010 at 02:08:20 PM EST
    The founders , praise G*d, were not all lawyers, and did not write the Constitution so that lawyers alone could understand it. Isn't it quaint that lawyers tend to argue the 2'nd. Amendment's meaning as the SC just did, while we unwashed little folks are not so sure.

    Understanding there might be confusion as to it's meaning, the founder's placed the "well trained militia" sentence in to clarify and define the meaning of "the people."

    Otherwise, that first sentence is a worthless, unnecessary, redundancy.

    From an interview with Mayor Daley (none / 0) (#44)
    by jbindc on Mon Jun 28, 2010 at 02:52:39 PM EST
    A couple of weeks ago:

    The mayor said his primary goal would be to protect police officers, paramedics and emergency workers from being shot when responding to an incident at a home. He said he also wants to save taxpayers from the financial cost of lawsuits if police shoot someone in the house because the officer felt threatened.

    "If the ban is overturned, we will see a lot of common-sense approaches in the city aimed at protecting first responders," Daley said. "We have to have some type of registry. If a first responder goes to an apartment, they need to know if that individual has a gun."

    The city is looking closely at models adopted in Washington, D.C., after the Supreme Court struck down its handgun ban two years ago and in California, which has some of the most comprehensive gun laws in the nation.

    Chicago already requires registration of rifles and shotguns, which are legal in the city, and those regulations could easily be applied to handguns, according to the city's corporation counsel, Mara Georges. The city also has the option of rewriting its current ordinance to include stronger, more controversial measures, such as databases that track a gun from the manufacturer to the gun shop to its current owner, and ballistic fingerprinting, which requires manufacturers to test-fire guns and keep a record of the unique ballistic markings left on bullets and shell casings.

    Gun control advocates said such requirements can help law enforcement identify guns that are linked to crimes. But gun rights advocates said such requirements deter law-abiding citizens from obtaining guns and lead to further litigation.

    "What cities need to realize is that the 2nd Amendment is a normal part of the Bill of Rights," said Alan Gura, the lead attorney representing plaintiffs in the case against Chicago being considered by the Supreme Court. "Laws that can be justified as having a real solid public safety purpose that don't interfere with people's rights, those will survive."

    Gura also represented plaintiffs in the District of Columbia lawsuit in 2008.

    Daley said he likes all aspects of the D.C. law and that Chicago could look there for ways to strengthen its licensing procedures. After its gun ban was overturned, the district adopted stringent requirements for prospective gun owners, including a four-hour class on firearm safety, at least an hour of firing training and passing an exam. The newly purchased gun also must undergo ballistics identification firing by police.

    Next year, the district will require semi-automatic pistols to be micro-stamped, a controversial technique in which serial numbers are marked on cartridge cases that can be traced back to registered gun owners. California also has adopted a requirement for micro-stamping, a technology that was recently developed and is not yet in use. New York's legislature is considering a micro-stamping bill.

    WTF? (none / 0) (#68)
    by Abdul Abulbul Amir on Mon Jun 28, 2010 at 09:09:57 PM EST
    "If the ban is overturned, we will see a lot of common-sense approaches in the city aimed at protecting first responders," Daley said. "We have to have some type of registry. If a first responder goes to an apartment, they need to know if that individual has a gun."

    Well they go into apartments now without knowing if there is a gun there.  Hizzoner makes no sense.  

    How is it that first responders in just about every other city in the country manage quite nicely to go into apartments without knowing if there is a gun present?

    Daley is starting to sound on this issue much like George Wallace on another.


    I think his point is (none / 0) (#72)
    by jbindc on Tue Jun 29, 2010 at 08:09:58 AM EST
    Many first responders in many cities DON'T go "quite nicely" into apartments without knowing if there is a gun present. Many also just get lucky.

    Sh*t... (none / 0) (#74)
    by kdog on Tue Jun 29, 2010 at 08:48:02 AM EST
    we got strict gun control in NYC and the fuzz still toss in flash grenades before their home invasions...they assume everybody is armed, hence all the murders of unarmed persons.

    Well (none / 0) (#75)
    by jbindc on Tue Jun 29, 2010 at 09:28:23 AM EST
    Would you go in unarmed and unprepared a strange house where you've been called because someone is waving a gun?  Especially a place where they aren't too friendly towards you in the first place?

    Probably not... (none / 0) (#76)
    by kdog on Tue Jun 29, 2010 at 09:54:15 AM EST
    hence I support the right to bear arms fully if someone chooses to go that route to protect themselves from home invaders, badged or not.

    Hmmm (none / 0) (#77)
    by jbindc on Tue Jun 29, 2010 at 11:05:18 AM EST
    Police have a right to enter your home if you are holding someone hostage at gunpoint.  If you are beating your wife, I have no problem with the cops busting down your door and doing what they have to do.  

    If you call 911, emergency responders have a right to enter your home.

    Don't you think they should at least stand a chance of coming out of there unhurt?


    Those aren't the only reasons they... (5.00 / 1) (#78)
    by kdog on Tue Jun 29, 2010 at 11:16:16 AM EST
    invade homes, sometimes its the wrong home that gets invaded, or the "right home" based on bad info from a slimeball informant.  Or growing prohibited plants.

    Under our system law enforcement is suppose to be a difficult and dangerous job...thank the sun god for that.  


    True (none / 0) (#79)
    by jbindc on Tue Jun 29, 2010 at 12:03:56 PM EST
    But I wouldn't risk my life on it.

    no right is absolute (none / 0) (#69)
    by nyjets on Mon Jun 28, 2010 at 09:19:34 PM EST
    The way I view the second amendment is simple. It is a right, like freedom of speech. And like pretty much all rights, it is not an absolute right. For example, you can not commit libel or 'shout fire in a crowded theater.'
    There like all rights, some regulation is not a bad thing. I view gun ownership like owning a car. I think there is nothing wrong with a person needing a gun license and gun register in order to get a gun. I also think a number of former convicts (like murders and violent offenders) should not be allowed  to own guns as should those people with mental problems or those with a history of violence (men who have a history of beating up there wifes for example.)
    Will regulation prevent ever gun tragedy. Of course not. But maybe we can limit the number.
    Furthermore, as some people as alluded to, I do not want people to have sufficient firepower to level a city or mow down everyone in the class room in a matter of minutes. Will trying to keep these kind of weapons be 100 percent effect. NO, but we should try.

    The Bill of Rights Mostly (none / 0) (#70)
    by pluege2 on Mon Jun 28, 2010 at 10:49:12 PM EST
    protects the people from abuses of the government.

    Given the context of the Constitution, i.e., revolution against the government, i.e., the King of England, I think the 2nd Amendment was meant to hold out the capability of the people to overthrow the government and to keep the government from taking away their ability to do that by taking their guns. The basic Constitution already gave the government the right to raise an army. So what would be the purpose of the 2nd Amendment if not to assure the people could have their guns. (Note, I say this as a strong advocate of gun control. But the 2nd Amendment seems unavoidable to ensure gun ownership.)

    Now taken in the context of today's US military, it is patently absurd to think a bunch of gun toting individuals could ever overthrow the government. So from that standpoint, the purpose of the 2nd Amendment is superfluous.