What America would look like if it didn't change their Amendments

[Soph0571]

As America attempts to recover from two deadly mass shootings in the space of 48 hours, there are calls to change the Second Amendment – which allows for the owning of weapons.
Like many other US amendments, this one too can be changed – if there is the political will. Crucially, it is for this exact reason that they're called 'amendments.'
America has a rich history in amending existing laws to improve the lives of its citizens. Here are some of the ways America would be worse off had it not amended pre-existing laws:
1. Slavery would still be legal
America’s 13th Amendment (1865) abolished slavery and involuntary solitude in all circumstances apart from in the case of a punishment for a crime.
2. You could be searched at any time for any reason
The 4th Amendment (1791) titled “Search and Seizure” gave people the right to secure their homes and person, and put a requirement for Warrants.
3. Soldiers could be posted in your home without your consent
Until the third amendment (1971), soldiers could, at any time use a citizen’s home to post up.
4. Women couldn't vote
Prior to 1920 women were not legally allowed to vote. It wasn’t until the ratification of the 19th Amendment that it was prohibited to deny the right to vote based on sex.
5. Black and Hispanic people couldn't vote, either
The 15th Amendment prohibited denying someone’s right to vote based on race.
6. Punishments for crimes could be cruel and arbitrarily large fines set
The eighth amendment - Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
7. You were not entitled to a trial-by-jury
The 6th Amendment (1971) protects the right to a fair trial by jury.
8. You wouldn’t be able vote unless you are over the age of 21
The 26th Amendment (1971) enshrines the right of US citizens over the age of 18 to vote.

[link:https://www.indy100.com/article/america-second-amendment-slavery-voting-black-hispanic-9039976|

But... we all know that the amendment needed would make a certain type of chap feel insecure, and we can't have that....



UGH

[FBaggins]

1. The basic point is accurate... but some of the examples are off

Numbers 2,3,6, and 7 did not change existing law. The Bill of Rights was ratified along with the rest of the Constitution.

Like many other US amendments, this one too can be changed – if there is the political will.

And there's the real problem. The political will to substantially change 2A simply doesn't exist. Such a proposal wouldn't come close to the necessary 2/3 vote in either the House or Senate... let alone get 2/3 of the states to ratify it.

It would instead ensure republican turnout (and some party-switching) for a decade or more.

[Pacifist Patriot]

2. I agree.

Better examples would be the 17th, 24th and 26th amendments which expanded enfranchisement and made elections more democratic.

Political will is THE issue. Hell, the ERA, which had strong support, still fell short of just one state legislature's approval for ratification. I'll never forgive Phyllis Schlafly for that. May she rot in hell.

I would dearly love to see the 2nd amendment simply repealed in its entirety rather than changed in any way. It's very existence prohibits a productive dialogue on what constitutes responsible gun ownership. Lack of the amendment wouldn't automatically outlaw guns any more than not having a right to own an automobile enshrined in the constitution has outlawed car ownership. But it would remove an impediment to even discussing guns with some people.

But I know I'll never see that in my lifetime. I suspect the USA will cease to exist in any recognizable form before the 2nd amendment was amended or appealed.

[Brainstormy]

5. agree. Repeal it! n/t

[Hoyt]

3. We should have stayed with England, we'd have health care too.

[PJMcK]

26. Good point

That had never occurred to me.

[jmg257]

4. Think the author should do some more research - 3rd and 6th amendments in 1971?

Last edited Tue Aug 6, 2019, 09:36 AM - Edit history (1)

Examples of Amendments changing/repealing amendments maybe could be better shown with prohibition? (18th 1920 / 21st 1933)
Hmmm...Alcohol would otherwise still be mostly illegal? Yay, Mafia!!!

Of course the 2nd amendment did amend the Constitution - and yet its purposes have been infringed quite often (THE Militias were re-created, the people's right to K/B arms infringed, commerce clause used, AWB, hi-cap mag bans, etc.) - so if doesn't REALLY matter when it/IF comes to the will of We, the People...or at least their chosen reps.

[BruceWane]

15. Research? Nah, it's just a typo

......just got the 7 and 9 reversed, should have been "1791".

[jimmy the one]

6. supreme court 1939 miller decision

The problem today with the 2nd Amendment is the 2008 supreme court 'heller' decision, involving a gun owner who was stripped of his guns due to a restraining order. He appealed, it went to supreme court, where presto chango 2ndA became an individual right (rkba - right to keep, bear arms), despite centuries of precedent having established it as a militia based right (based on england's 1689 'have arms' decree within their bill of rights signed by WM & Mary after the glorious revolution (i checked your profile soph!)

However, the previous most recent supreme court 2ndA decision was in 1939 when scotus had a similar case involving one jack miller & his accomplice frank layton, who crossed a state line with an illegal sawed off shotgun & claimed 2ndA protection. It ended up in supreme court, and the court ruled against miller (even tho he had died by then), citing the following opinions, within my summary:

Me, jun 06, 2019: The 2008 supreme court heller ruling was a political verdict, 5-4, and a subversion of the 2nd amendment by right wing demagogue scalia.
In 1939 the supreme court previously 'last' ruled on the 2ndA prior to heller, a unanimous 8-0 ruling (one recusal since new arrival) and offered these interpretations:

The Constitution, as originally adopted, granted to the Congress power -- "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."
With obvious purpose to assure the continuation and render possible the effectiveness of such {militia] forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
https://supreme.justia.com/cases/federal/us/307/174/case.html

1939 miller cont'd: In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument

This 1939 supreme court ruling on miller was UNANIMOUS. Not one justice felt the above wording to be wrong or misleading about any individual rkba, they clearly called it for the militia interpretation. Not one justice thought 'whoa fellow justices, look how we worded that, future generations are gonna think we're ruling for a militia interp' Nope, all thought it was proper wording, that it was indeed a militia interpretation.
{.. Note, the 9th recused justice later wrote a book or paper supporting gun control.}

Tack on amicus brief citing adams, by the US justice dept in 1938 to the 1939 supreme court re miller: In the only other case in which the provisions of the National Firearms Act have been assailed as being in violation of the Second Amendment, the contention was summarily rejected as follows:
The second amendment to the Constitution, providing, "the right of the people to keep and bear arms, shall not be infringed," has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act. It {2ndA} refers to the militia, a protective force of government; to the collective body and not individual rights. http://www.guncite.com/miller-brief.htm

Scalia kicked stare decisis (scotus bound by previous interpretations handed down thru the years), in the ass & the right wing put him on a pedestal.
The Militia Act of 1792, coming a mere 5 months after the 2ndA was enacted in bor, was intended to define what the 2nd amendment described - the well regulated militia part, how to drill when to meet. The Militia Act of 1792 was superseded under Teddy Roosevelt circa 1903, disestablishing the citizen's militia part & replacing the 1792 act with the US militia code which established the national guards & the unorganized militia.

US Militia code, circa 1903 under teddy roosevelt: 10 U.S. Code § 246 - Militia: composition and classes (a) The militia of the United States consists of all able-bodied males at least 17 years of age.. et cetera:
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
https://www.democraticunderground.com/?com=view_post&forum=1172&pid=206865

Note in class 2, the unorganized militia (99% of americans belong or belonged or will belong) does not meet the requirements of the 2nd amendment, in that, by definition, an unorganized militia is NOT well regulated. It could not possibly be what madison intended in 1791..

[raging moderate]

7. '

This is a superb discussion. Thank you.

[aikoaiko]

9. What do you think would have happened had Miller livrd

And showed that short-barreled shotguns were used and useful in WWI fighting in the trenches?

[jimmy the one]

29. had jack miller lived

aiko x2: What do you think would have happened had Miller lived And showed that short-barreled shotguns were used and useful in WWI fighting in the trenches?

If Miller had lived, he wouldn't have appeared in court to say anything like you suggest (laughable aiko), because he had ratted on his pals & they would've killed him once they realized where they could find him (DC):

wiki: In reality, {first ruling by district court, in favor of jack miller} was in favor of the gun control law and {only} ruled the law unconstitutional because he knew that Miller, who was a known bank robber and had just testified against the rest of his gang in court, would have to go into hiding as soon as he was released. He knew that Miller would not pay a lawyer to argue the case at the Supreme Court and would simply disappear. Therefore, the government's appeal to the Supreme Court would be a sure win because Miller and his attorney would not even be present at the argument

Neither the defendants {miller or layton} nor their legal counsel appeared at the Supreme Court. A lack of financial support and procedural irregularities prevented counsel from traveling. Miller was found shot to death in April, 1939 before the decision was rendered
https://en.wikipedia.org/wiki/United_States_v._Miller

aiko: short-barreled shotguns were used and useful in WWI fighting in the trenches

Maybe then, but that was a standing army under pershing, not a local yokel crossing state lines not acting within a well regulated militia.

Aside: Germans, somewhat surprisingly, appealed to the hague convention (or geneva, later i thinks, can't recall) to disallow short barrel shotguns in early stages of WWI due their horrendous way of killing, near cutting a man in half sometimes at the belly, leaving him still alive for a while (up to days possible since stomach wounds can be like that without much blood loss). Pershing arrived 1917 iirc, so issue was likely past by then, and not adopted.
You approve of sawed off shotguns aiko? wakaru masen shiite

[aikoaiko]

32. For people who think a shotgun is good home defense,

a short-barrelled one would make the most sense for the same reason they were useful in the trenches. Shorter, easier turning radius around hallways.

[FBaggins]

34. Maybe... but it doesn't have to be under that 18" barrel standard to be useful for home defense

Of course... my theory on the most useful shotgun for home defense is any device that can make the sound of a pump-action chambering a round. Doesn't much matter if it can fire.

[jmg257]

10. Hey Jimmy! Since by 1939, the people were already only the UNorganized Militia,

And the USSC was STILL unanimous in the 2nd's purpose, and quite clear its application re: a civilian Miller...

With obvious purpose to assure the continuation and render possible the effectiveness of such {militia] forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
https://supreme.justia.com/cases/federal/us/307/174/case.html

1939 miller cont'd: In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument

Shouldn't we all be entitled to guns like M16s and M9s, full cap mags, etc. - those being exactly the type of arms the USSC did say were protected?

The decision reads such that if Miller was carrying say a BAR, the USSC would have found it was protected and so legally possessed?

[jimmy the one]

12. flies in your ointments

aiko: What do you think would have happened had Miller lived .. And showed that short-barreled shotguns were used and useful in WWI fighting in the trenches?

jmg: Shouldn't we all be entitled to guns like M16s and M9s, full cap mags, etc. - those being exactly the type of arms the USSC did say were protected? The decision reads such that if Miller was carrying say a BAR, the USSC would have found it was protected and so legally possessed?

Flawed reasoning from both jmg & aiko. Had miller actually 'belonged' to a well regulated militia, your arguments would hold water, as long as he argued in that vein, not individually. The national guard today could argue your point in court if m16's & m5's et al were proposed to be banned.

1939 miller decision: In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument

Since there no longer was in 1939, or is now any 'well regulated' citizens militia as envisioned & planned by the 2nd amendment, any individual right to keep & bear arms stemming from heller is actually obsolete & moot. But scalia twisted it so much with fractured reasoning that it's now judicial law.

[jmg257]

13. Understood about Heller - we were talking Miller. You use the decision as proof of militia relation

of the 2nd. Of course it is related.

But in Miller, the USSC decision clearly stated the 2nd protects the arms related to militia usage...they did NOT say or even refer to the point that Miller wasn't in a well-regulated Militia, but very specifically stated (wrongly BTW - only due to lack of evidence) that the SHOTGUN he possessed wasn't applicable to militia usage.

All despite whatever the code says about people = UNorganized militia, etc.

IF he had a BAR and some one presented evidence of its very well-known military usage, the decision as handed down unanimously would have found such an arm legal and protected by the 2nd. (I am not saying maybe they would have changed their tune/wording if that was the case - but only what they did say about the 2nd protecting militia-quality arms)


BTW, Heller does say some restrictions are lawful.

[jimmy the one]

16. what they did NOT say, does not trump what they DID say

jmg: IF he had a BAR and some one presented evidence of its very well-known military usage, the decision as handed down unanimously would have found such an arm legal and protected by the 2nd.

That's strained reasoning to apply it individually. The right as described by scotus 1939 needed be in conjunction with the 'WRM' purposes, as set forth in the following, applying it to the militia member:

With obvious purpose to assure the continuation and render possible the effectiveness of such {militia] forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

jmg: .. in Miller, the USSC decision clearly stated the 2nd protects the arms related to militia usage...they did NOT say or even refer to the point that Miller wasn't in a well-regulated Militia, but very specifically stated that the SHOTGUN he possessed wasn't applicable to militia usage.

You sound like the gun lobby nra manipulation of it, their song & dance, which they use to sidestep the obvious interpretation the 1939 supreme court decision expounded upon. According to you, just because they 'did not say', that miller was not in a militia, somehow negates the clear reasoning behind what all 8 of them DID say.
Muddy up the waters is all you are doing.
This wasn't the ruling of the supreme court, the two excerpts I posted are adjunct opinions which clearly demonstrate how they felt. The ruling went against jack miller using the 2ndA to defend himself.

[jmg257]

18. What I stated, just like the USSC did, is quite clear...exactly WHY it went against Miller...

Last edited Tue Aug 6, 2019, 12:28 PM - Edit history (1)

The Miller decision states that the 2nd protects arms with reasonable military use, in order to assure the effectiveness of the militia entities.

"The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense

Period. Pretty simple to see just what they did say, and no dancing is needed - its all about the inadequate weapon.. the ownership/possession by a citizen of an arm..."this weapon", a "shotgun..." of "such an instrument", "its use", not proved to have some reasonable relationship to the preservation or efficiency of a well regulated militia - is/was not protected by the 2nd.


You sound like someone who is trying to prove a point using only a small part of a decision in support, while ignoring the rather obvious point stated in another part.

We do get the 2nd is militia related - states it right in the preamble.

[FBaggins]

14. But some in yours as well

You refer to "the militia interp" as though mentioning "militia' means that they agree with any other interpretation that also evaluates 2A through the lens of the militia clause.

That simply isn't so.

The interpretation that you seem to be promoting is fairly common - 2A was created to enable a militia... the National Guard has taken the place of the militia and he's not in the Guard... therefore 2A does not apply to him. That is not "the militia interp" the unanimous Miller court used. There is no mention of whether or not "militia" excludes Miller... merely that it excludes the specific weapon.

[jimmy the one]

17. the prevailing 1939 thought was no individual rkba

fbaggins: There is no mention of whether or not "militia" excludes Miller... merely that it excludes the specific weapon.

Same specious reasoning used by jmg; you are arguing what the 1939 supreme court did 'not' say, while ignoring what all 8 of them 'did' say. As well as what the 1938 DoJ amicus brief 'did' advise the 1939 supreme court that there was no individual right. This was the prevailing thought then, not an individual rkba.
This counter has been around for decades, the best the gun lobby could do to sweep the miller decision under the rug, muddy the waters & equivocally argue with strained reasoning.
Dialectic reasoning is not always correct - if this means that, and that means this, then this & this means that & that. Nope, not absolutely.

[FBaggins]

19. You've provided no evidence for that

Later (but pre-Heller) rulings went both ways (which is why Heller made it to SCOTUS). The Emerson court could not have ruled that it was an individual right if Miller was universally understood to mean that there was no individual right.

you are arguing what the 1939 supreme court did 'not' say, while ignoring what all 8 of them 'did' say.

Not at all. You're taking what they did say and extending it to mean something that they did not say. I'm merely pointing out that they didn't say it.

As well as what the 1938 DoJ amicus brief 'did' advise the 1939 supreme court that there was no individual right.

The fact that it was in the DOJ brief and nobody on the court adopted that reasoning refutes your assumptions. If nobody argued that and the court left it out... it could be argued that they didn't consider it. Instead... they were presented with that rationale and did not make that ruling. It isn't even dicta. It's evidence that Roosevelt wanted them to rule as you assume and they refused to do so. Taking an amicus brief that is not referenced by the court in their decision and arguing from it is a bigger "nope" than "dialectic reasoning" (which, BTW, better fits your #12)

[jimmy the one]

23. flies in the bulloffal

baggins: The Emerson court could not have ruled that it was an individual right if Miller was universally understood to mean that there was no individual right.

According to who, you? you are 'impartially' adjudging a politically biased scalia led 2008 supreme court well versed in gun lobby revisionist history of the 1939 miller decision?
No, miller was not 'universally' understood to mean militia, but it generally was, stare decisis & all that.

baggins: It's evidence that Roosevelt wanted them to rule as you assume and they refused to do so.

You spout bulloffal. Here is the miller rendering:

On May 15, 1939 the Supreme Court, in an opinion by Justice McReynolds, held:
The National Firearms Act, as applied to one indicted {jack miller} for transporting in interstate commerce a 12-gauge shotgun {the one jack miller owned} with a barrel less than 18 inches long without having registered it and without having in his possession a stamp-affixed written order for it, as required by the Act, held:

Not unconstitutional as an invasion of the reserved powers of the States. Citing Sonzinsky v. United States.. The conclusion was in the favor of the NFA.
.. Not violative of the Second Amendment of the Federal Constitution.
The Court cannot take judicial notice that a shotgun {jack miller's} having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia {extant for 1930's}, and therefore cannot say that the Second Amendment guarantees to the citizen {jack miller} the right to keep and bear such a weapon.

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than 18 inches in length" {the one jack miller owned} at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia {in existence when jack miller owned it}, we cannot say that the Second Amendment guarantees the right {of jack miller} to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment {of any contemporary 1930's well reg'd militia or military}, or that its use could contribute to the {contemporary} common defense.
https://supreme.justia.com/cases/federal/us/307/174/

[FBaggins]

28. Once again... general claims without evidence

Except for {your own imaginings}. The Miller court makes no evaluation of whether a qualifying militia still existed at the time, nor whether Miller was a member of such.

You are 'impartially' adjudging a politically biased Scalia led 2008 supreme court ...

I haven't cited Scalia or the Heller ruling. Scalia had nothing to do with Emerson.

The Emerson court ruled unanimously (including a Carter appointee) that there was an individual right. Unlike Miller, they explicitly considered the three prevailing theories of the day. SCOTUS denied cert despite Ginsburg/Breyer/Souter/Stevens/Kennedy/O'Connor being on the court... they could not muster even four justices who felt that it should be reviewed.

You spout bulloffal. Here is the miller rendering:

You obviously missed the point. The DOJ made two arguments: 1) That there is no individual right and 2) even if there were such a right, this weapon would not be covered by it. While SCOTUS adopted much of the rationale for #2... they included nothing from the argument that there was no individual right. You cannot, therefore, continue to argue that it's what they really meant (let alone that it's "stare decisis & all that".

Immediately following Miller, the 1st Circuit ruled in Cases v. United States. They recognized exactly what I'm saying above: That the Miller decision rested entirely on the type of weapon being used and that it was as far as the court was willing to go on the issue... not a general rule for all 2A cases.

Question - This was just three years after Miller. If that unanimous court disagreed with what the 1st circuit was saying... if your take on the ruling was the general understanding... why didn't they just pick up the case and smack them down?

[jimmy the one]

31. not unanimous en banc like 1939 scotus re miller

baggins: The Emerson court ruled unanimously (including a Carter appointee) that there was an individual right.

Unanimous 3 - 0 was it? the 5th circuit now has 16 or 17 justices, so this emerson ruling was not unanimous en banc was it?
Those 3 justices were all republican I believe - I reviewed this & googled them, two were noted as republican, the third, Robert Parker appt'd by carter & later nom'd by clinton, was not party id'd, but this:
From 1965 until 1966, he {robt parker} worked as an administrative assistant to United States. Republican Ray Roberts. https://prabook.com/web/robert.parker/1920574

Yeah clinton & carter appt'd some republicans, esp to southern circuits.
Trying to mislead & embellish by sweeping full disclosure under the rug, baggins?
It wasn't a full 5th circuit unanimous decision, and it appears the 3 - 0 ruling might've come from 3 republicans, which quelle surprise, often returns a political decision in the ruling party's favor.

baggins: Immediately following Miller, the 1st Circuit ruled in Cases v. United States. They recognized exactly what I'm saying above:...
Question - This was just three years after Miller. If that unanimous court disagreed with what the 1st circuit was saying... if your take on the ruling was the general understanding... why didn't they just pick up the case and smack them down?

Another 'unanimous' 3 - 0 ruling by a partial circuit court baggins? really don't want to give the full picture do you?
I do not know nor care fully what you are driving at above, just sounds like more dialectic reasoning, 'if that unanimous scotus' disagree with ... 1st circuit ... why didn't they ..--
.. so this & that, must be that & this to you, eh?

[FBaggins]

33. Entitled to your opinion, but not your own facts

Did I say it was en-banc? Nope. I said "the Emerson court" (you know... the judges who ruled on that case??).

But let me get this straight... he was appointed by both Carter and Clinton (and recommended both times by Lloyd Bentsen) but you believe that he was actually a Republican because he spent one year as an admin assistant to a Republican? Seriously?

That would be an incredibly lame position even if your 20 seconds of googling was accurate. In reality, your research skills suck:

Ray Roberts was a Democrat.

While you're picking what's left of your spin off the floor... don't think that anyone missed that you once again dodged the key question. There were four liberals and two moderates on the Supreme Court. Why didn't they even grant cert when the case was appealed?

Don't worry... I won't be holding my breath waiting for a substantive reply.

Another 'unanimous' 3 - 0 ruling by a partial circuit court baggins?

Did I even mention the count on the ruling? Nope. So how is that spin?


What I asked was simple (and again... you can't dodge it by name-calling). The ruling was just a couple years after Miller. If they got it wrong... why didn't that unanimous Miller court overturn them???

You can try to spin... but you really can't answer because the simple fact is that the Miller court had nothing to say about whether 2A does or does not confer an individual right. It merely said that the weapon involved was not covered by it. They didn't overturn the 1st because the 1st accurately evaluated their Miller ruling.

Oh... and while you're still there on the floor trying to find your credibility... you know that "partial court"?

All three were Roosevelt appointees.

But... you know... maybe they had a cousin that once had tea with a Republican. So you can probably still dismiss the ruling.

[jimmy the one]

35. the phantom justice, ray roberts

baggins: Ray Roberts was a Democrat... he was appointed by both Carter and Clinton (and recommended both times by Lloyd Bentsen.

Who pray tell, is ray roberts in emerson? I thought you were referring to the 5th circ emerson decision in 2001;

United States Court of Appeals,Fifth Circuit.
UNITED STATES of America, Plaintiff-Appellant, v. Timothy Joe EMERSON, Defendant-Appellee.
Decided: October 16, 2001
Before GARWOOD, DeMOSS and PARKER, Circuit Judges.
https://caselaw.findlaw.com/us-5th-circuit/1332436.html#

Now Robert Parker was indeed a carter appointee, but wow, what a big coincidence that would be if you are citing another emerson case with a carter appointee.

What I'd written about robert parker: Those 3 justices were all republican I believe - I reviewed this & googled them, two were noted as republican, the third, was not party id'd, but this: From 1965 until 1966, he {robt parker} worked as an administrative assistant to United States. Republican Ray Roberts.

Oh I figured it out. See Ray Roberts in the above sentence baggins? - Ray Roberts is the senator that Robert Parker worked for. Ray Roberts is indeed a republican, not a democrat - you read him as being one.
It's obvious you simply cited the wrong person in your haste to nick my shoulder, but still, get a napkin wipe the egg off your face.

baggins: That would be an incredibly lame position even if your 20 seconds of googling was accurate. In reality, your research skills suck:

More like 20 minutes, & my research skills are quite good comparatively. And if you want LAME, reread the top half of this post about what YOU wrote.
If you are so good at research, post a link or website which ascertains that Roberts was a democrat. You get 20 minutes.

Why I felt Robert Parker might be a republican: Those 3 justices were all republican I believe - I reviewed this & googled them, two were noted as republican, the third, Robert Parker appt'd by carter & later nom'd by clinton, was not party id'd, but this: From 1965 until 1966, he {robt parker} worked as an administrative assistant to United States. Republican Ray Roberts
Yeah clinton & carter appt'd some republicans, esp to southern circuits.
It wasn't a full 5th circuit unanimous decision, and it appears the 3 - 0 ruling might've come from 3 republicans,

Its obvious I was uncertain as to Robert Parkers political party. Its a minor point, not like I confused Robert Parker with Ray Roberts or anything gooney like that. To exploit it as you did demonstrates that you continue to mischaracterize & are more interested in promoting gun lobby positions at opponents expense.

baggins: don't think that anyone missed that you once again dodged the key question. ......There were four liberals and two moderates on the Supreme Court. Why didn't they even grant cert when the case was appealed?

I hate to break this to you baggins, but I do not think that -anyone- is following this except a few, likely out of boredom or nothing on tv.
As far your inane dialectic argument, you can stick that somewhere; I will not play your stupid game trying to go back 60 years to try to explain, to YOU, why the miller supreme court did not hear a subsequent Cases v US case. You do your own research.
Except for quickly: there are several reasons scotus could refuse - they agreed with the underlying decision, felt miller was definitive enough, that district courts and circuits sometimes had an alternate version of 2ndA and to address every issue was impractical and took up court time needed for more important issues.

[FBaggins]

36. Hiding by replying to yourself?

baggins: Ray Roberts was a Democrat... he was appointed by both Carter and Clinton (and recommended both times by Lloyd Bentsen.

I"ll just assume that's an error and not intentional dishonesty. I never referred to Roberts as the judge involved. The "he was appointed" referred to your imagined third republican judge. The one you assumed was a Republican because he once worked for someone you thought was a republican. You cobbled unrelated clauses into a single sentence that I never posted.

You're running around in circles now.

What I'd written about robert parker: Those 3 justices were all republican I believe - I reviewed this & googled them, two were noted as republican, the third, was not party id'd, but this: From 1965 until 1966, he {robt parker} worked as an administrative assistant to United States. Republican Ray Roberts.

Yes... that's what you wrote and you were incorrect. Parker was the Emerson judge appointed by Carter and Clinton. He worked for about a year for Ray Roberts... but Roberts was not a Republican.

Oh I figured it out. See Ray Roberts in the above sentence baggins? - Ray Roberts is the senator that Robert Parker worked for. Ray Roberts is indeed a republican, not a democrat - you read him as being one.
It's obvious you simply cited the wrong person in your haste to nick my shoulder, but still, get a napkin wipe the egg off your face.

What delicious irony. You really don't know when to quit (though again... your choice to try to hide your reply is telling)

Nope. Parker worked for Representative Ray Roberts. Democrat from the Texas 4th.

Why I felt Robert Parker might be a republican:

Was clear enough from the beginning. It's the same reason that you tried to question the pannel from the 1st circuit. You wanted to throw shade on the rulings by claiming that the decisions were made by republicans and thus should be ignored.

This, of course, is why you're dodging. Three Roosevelt appointees cannot rationally be spun as biased. The fact that in the immediate context of the Miller ruling they disagreed with the position that you believe was a general understanding is devastating to your spin. You want to pretend that it was all Scalia. You started with the position and had the confirmation bias bug so bad that you just assumed it had to be true. You're still stuck with it. You can't imagine Democratic judges would disagree with you.

[jimmy the one]

25. 1938-39 Dept of Justice DoJ amicus brief

baggins: The fact that it was in the DOJ brief and nobody on the court adopted that reasoning refutes your assumptions. If nobody argued that and the court left it out.. Taking an amicus brief that is not referenced by the court in their decision

Oh please. There were dozens of items re DoJ amicus brief advice the 1939 supreme court did not mention in the miller decision. But the supreme court ruling did mention several opinions from DoJ's amicus brief, which indicates they both were on the same page regarding the militial interpretation of 2ndA.

Miller 1939 decision: The Militia which the States were expected to maintain and train is set in contrast with Troops {standing army} which they were forbidden to keep without the consent of Congress.

DoJ 1938 amicus brief: Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its {militial} infringement by Congress

Miller decision: "In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.

DoJ amicus brief: under the common law of England and of this country. In both countries the right to keep and bear arms has been generally restricted to the keeping and bearing of arms by the people collectively for their common defense and security.

Miller decision: Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that {2ndA} guarantees to the citizen {concomitantly in the broad sense here} the right to keep and bear such a weapon.

DoJ amicus brief: Sawed-off shotguns, sawed-off rifles and machine guns are clearly weapons which can have no legitimate use in the hands of private individuals.

If you want a reason for why 1939 supreme court did not specifically mention DoJ's citing adams & 'no individual right', perhaps it was to recognize the dichotomy which existed in 1939 (& long prior), between the individual & militia interpretations within state constitutions, which would preclude federal interference:

1939 miller: Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seems to afford any material support for the challenged ruling of the court below.
https://guncite.com/miller-brief.htm

[hack89]

30. So if Miller had a gun that was suitable for militia service then he would've been ok?

Given that the focus was purely on the weapon and not on Miller's lack of militia membership?

Why didn't they simply say that Miller was not a militia member therefore the 2A didn't apply? Instead they said the 2A didn't apply to a sawed off shotgun. The clear implication is that the 2A does apply to certain weapons.

[radius777]

8. Civil Rights were considered unconstitutional,

and still are by the RW, on the basis of 'state's rights' and private entities 'right' to exclude anyone they choose.

Basically, the Constitution was written by the White Man to give himself rights and hold down everyone else, and the system is still largely set up that way.

White Terrorism has few laws to truly address it the way other forms are... they're allowed to spread their hate and build up an arsenal until they attack innocent PoC like they did last weekend.

[jimmy the one]

11. criticism of 2008 heller decision by british scholars

Soph, I just thought, if you are from Ireland the glorious rev might not be your cup o' tea, oh well.
Thanks raging moderate, for the kind words!

The following was written about 2011/12 following both the 2008 heller decision (federal) & 2011 mcdonald decision (applying to cities) by a consortium of approx 21 british scholars (most from america tho) regarding scalia's supreme court ruling (added emphasis mine):

Amici Curiae are scholars and professional historians whose collective expertise covers the following areas: the history of Stuart England, the Restoration, the 1689 Glorious Revolution, the American Revolution, the Early Republic, American legal history, American Constitutional history, and Anglo-American history. Each has earned one or more advanced degrees in history, political science and/or law. The depth of knowledge they bring to the Court’s inquiry in this case is reflected in biographical information provided in accompanying Appendix.

BRIEF FOR ENGLISH/EARLY AMERICAN HISTORIANS AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

I. THE SUPREME COURT SHOULD REEXAMINE PRIOR FINDINGS IN LIGHT OF SOUNDER SCHOLARSHIP WHEN INTERPRETING RIGHTS IN THE CONSTITUTION ..The [US supreme] Court “throughout its history has freely exercised its power to reexamine the [historical] basis of constitutional decisions.”
II. THE ALLOWANCE OF A RIGHT TO “HAVE ARMS” SET FORTH IN THE 1689 DECLARATION OF RIGHTS WAS THE PRECURSOR TO THE SECOND AMENDMENT.

Amici simply urge that the Court base its decision on a well informed study of historical facts, which demonstrates that armed self-defense of the home by individuals acting for private interests was not the right enshrined in the Second Amendment

In {DC} v. Heller (2008), the {US Supreme} Court examined the English Declaration of Rights of 1689, correctly finding that the right to “have arms” in Article VII is the basis of the right enshrined in the Second Amendment.
The Court also correctly recognized that the Second Amendment right to bear arms was an individual right to have and use arms for “self preservation and defense” as in its English predecessor.
However, contrary to discredited scholarship {to wit Joyce Malcolm} upon which Heller relied, the right to “have arms” embodied in the English Declaration of Rights did not intend to protect an individual’s right to possess, own, or use arms for private purposes such as to defend a home against burglars (what, in modern times, we mean when we use the term “self-defense”). Rather, it referred to a right to possess arms in defense of the realm. Accordingly, the right to own or use arms for private purposes is not a right deeply rooted in our {british} nation’s tradition, and should not be incorporated as against the states by the 14th Amendment.

The “have arms” provision in the English Declaration of Rights, which was later codified as the Bill of Rights, provided two protections to the individual.
First, the right to “have arms” gave certain persons (qualified Protestants) the right to possess arms to take part in defending the realm against enemies within (i.e., Catholics) as well as foreign invaders.
Second, the grant of a right to “have arms” was a compromise of a dispute over control of the militia that gave Parliament concurrent power (with the sovereign) over arming the landed gentry. It allowed Parliament to invoke its right of “self-preservation” and “resistance” should the sovereign usurp the laws, liberties, estates, and Protestant religion of the nation.

In no part of his Commentaries does Blackstone link the right of personal security with the possession of arms, nor does he cite the Declaration of Rights’ “have arms” provision in his discussion of personal security
.
... In doing so, the Court relied heavily on the scholarship of Joyce Lee Malcolm. The overwhelming consensus among leading English historians, however, is that Malcolm’s work is flawed on this point. ...Amici, based on a wealth of scholarship, disagree with Malcolm’s conclusions. Contrary to Malcolm’s view, the “have arms” provision was the result of a political dispute over whether ultimate control over the militia

They {America's founding fathers} also borrowed the Second Amendment’s preamble from England’s militia laws, for the Second Amendment’s “well regulated militia” language was inspired by the preamble of the 1757 Militia Act, which stated, “Whereas a well-ordered and well-disciplined Militia is essentially necessary to the Safety, Peace and Prosperity of this Kingdom.

The {supreme} Court “throughout its history has freely exercised its power to reexamine the [historical] basis of constitutional decisions.” That the Heller decision is recent only weighs in favor of quick action by the Court to correct its error of historical interpretation

CONCLUSION Based on the foregoing, we ask that the Court correct its view of the historical background of the Second Amendment as set forth in Heller.
https://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_09_10_08_1521_RespondentAmCuEnglishHistoriansnew.authcheckdam.pdf

[former9thward]

21. Those British scholars would use English law to justify us still being a colony.

We fought a revolution against them so I suspect they have some bias in the matter....

[LanternWaste]

24. Your suspicions are necessary to validate your own biases.

We didn't fight a revolution against them, we weren't born yet. We did jack.

[Mike_DuBois]

37. Umm, put of idle curiosity

Why would Americans care about English legal opinion? I thought we quit carrying round about 1776 or so.

[FBaggins]

38. The Heller decision goes to great lengths to discuss the history/origins of 2A

To the extent that they interpret the English predecessors... they think it's reasonable to listen to their interpretations of those sources. Though to be fair... "British scholars" in JTO's post is not the same thing as "scholars from Britain"

This is nonsense of course. There's nothing involved in being born geographically nearer to where those documents were written that means that your scholarship on the subject is better than others. Nor a reason to fall for the "appeal to authority" fallacy because 21 people claim to be scholars in the field (there are no doubt equal numbers of scholars on the other side too).

I note two points as examples:

Those on the other side of the pond claim: "in no part of his Commentaries does Blackstone link the right of personal security with the possession of arms"

Yet I find - "The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law.3 Which is also declared by the same statute, 1 W. and M. st. 2, c. 2, and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

My second point is that the Breyer dissent in Heller agrees with the majority that one of the purposes of those who wrote 2A was so that citizens would have arms for their own self-defense. Stevens, Souter, and Ginsburg joined in that dissent. So we essentially have a unanimous Supreme Court agreeing that the authors of 2A had as at least part of their intent the right of the citizen to self-defense. You are thus correct that we can safely ignore interloping Brits trying to reestablish their authority over us.

[jimmy the one]

40. bulloffal

baggins, citing british scholars: : "in no part of his Commentaries does Blackstone link the right of personal security with the possession of arms"
baggins remarks: Yet I find - "The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute, and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

Typical mischaracterization from baggin's 2nd Amendment Mythology Bible. No baggins, blackstone above was not referring to individual defense but common defense of the crown as per militia. 'Violence of oppression' is referring to european conflict not getting bonked & robbed.
English were often disallowed firearm ownership when blackstone lived, due to what blackstone notes above & I highlighted, as well as preservation of game via english game laws.
You don't know what you are talking about baggins & you are misinterpreting & mischaracterizing what blackstone wrote.

baggins: My second point is that the Breyer dissent in Heller agrees with the majority that one of the purposes of those who wrote 2A was so that citizens would have arms for their own self-defense. Stevens, Souter, and Ginsburg joined in that dissent. So we essentially have a unanimous Supreme Court agreeing that the authors of 2A had as at least part of their intent the right of the citizen to self-defense.

This sounds like a canard I've come across in the past, more 2nd amendment mythology. Post evidence of what you are talking about to back it up.

baggins: You are thus correct that we can safely ignore interloping Brits trying to reestablish their authority over us.

That is stupid; they were correcting scalia in his misinterpretation of english history.

[jimmy the one]

39. scalia invalidly cited english history in heller

dubois: why would Americans care about English legal opinion? I thought we quit carrying round about 1776 or so

Scalia in 2008 heller decision cited english 1689 'have arms' decree as precedent to the 2nd amendment, getting crucial facts wrong. The british scholars corrected scalia such that he omitted a few of his invalid contentions he gleaned from them, from his subsequent 2011 mcdonald decision, re cities.
Of course pro gun crowd would proffer your comment, to diminish their report.

I thought we quit carrying round about 1776 or so.

No, there was a war going on at the time & shortly afterwards (presumed 'caring').

[Mike_DuBois]

42. Yeah, sorry 'bout that

Spelling was never my forte. My brain outpaces my fat thumbs and leaves the hands trying to figure out how to spell what I was thinking

[former9thward]

20. Many errors in the post.

#8 is not true. States have the right to set the age for voting and many had set it at 18 before the 26th amendment.

#3 and #7 says the amendment was made in 1971. Untrue, both were made in 1791.

#4 is not true. States had the right to give women the vote and many did before the 19th amendment.

#1 is not really true. The Constitution in its original form outlawed the importation of slaves after 1808. Slavery couldn't be sustained based on reproduction alone. Slave owners tried to illegally import slaves after that with varying degrees of success. That provision in the Constitution was one of the reasons for the Civil War.

[Buckeyeblue]

22. Follow the money...

There is too much money being made in the gun industry (including dealers) to touch the gun laws right now. It's crazy how little gun regulations there are. There are more rules/law involved in my going to the gas station to buy a beer than there are around me wanting to buy an AR-15.

Then you add on the illegal gun running that happens across the Mexican boarder and the amount of money really goes up. It's ironic, we ship our legal guns to Mexico's cartels and they ship their illegal drugs to us.

One more thought: I think the deference paid to the gun industry is also a nod to White Supremacy. It's all linked. It's all part of the code.

We are so close to absolutely chaos as a country that it gives me great pause.

[PJMcK]

27. Good post, Soph

Trumpers don't know shit about our government, our Constitution or our laws.

[jimmy the one]

41. more truth about the militia intent of 2ndA

More quotes & info from early 19th American writers, regarding the true meaning of the 2nd amendment:

1) Benjamin Oliver, Right of an American Citizen, 1832 (+emph):
"The provision of the constitution, declaring the right of the people to keep and bear arms, &c. was probably intended to apply to the right of the people to bear arms for such [militia-related] purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it."

Oliver was not alone in his views.. The notion that there was a general consensus on the meaning of the Second Amendment that supports an individual right with no connection to the militia is simply gun rights propaganda passing as scholarship.' Saul Cornell

2) No right to keep & bear arms in the Articles of Confederation, America's first constitution, adopted 1777, ratified 1781:
No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the united States in congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the united States, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.
search 'arms': https://www.usconstitution.net/articles.html#Article3

3) Supreme Court Justice Joseph Story wrote about the same time: "The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt, and thus gradually undermine all the protection intended by this clause of our National Bill of Rights."
https://selfeducatedamerican.com/2013/01/15/the-palladium-of-the-liberties-of-the-republic-justice-joseph-story/

Quite clear that Justice Story felt the 2ndA right to keep & bear arms & be 'duly armed' thereby, was impracticable without 'some organization' which of course was the militia. Not duly armed by an individual right, but duly armed within an organization.
Inexplicably, the gun lobby has twisted story's words & use this very passage to contend he was supporting an individual rkba.
Story also spoke of the dichotomy which had arisen early 1800's between militia supporters versus militia scofflaws who did not wish to be bothered with the militia system - to be rid of all regulations - who felt they had an rkba without militia involvement. This is tragically the opinion which has taken over in our 20th & 21st centuries, thanks to a far right wing gun lobby.