Supreme Court Justice Ruth Ginsburg on the Second Amendment (and Heller a bit)

[Photographer]

Just a reminder.


"The Second Amendment has a preamble about the need for a militia...Historically, the new government had no money to pay for an army, so they relied on the state militias. And the states required men to have certain weapons and they specified in the law what weapons these people had to keep in their home so that when they were called to do service as militiamen, they would have them. That was the entire purpose of the Second Amendment."

But, Justice Ginsburg explains, "When we no longer need people to keep muskets in their home, then the Second Amendment has no function, its function is to enable the young nation to have people who will fight for it to have weapons that those soldiers will own. So I view the Second Amendment as rooted in the time totally allied to the need to support a militia. So...the Second Amendment is outdated in the sense that its function has become obsolete."

As for the Heller case, decided by the Court in 2008, Justice Ginsburg says, "If the Court had properly interpreted the Second Amendment, the Court would have said that amendment was very important when the nation was new; it gave a qualified right to keep and bear arms, but it was for one purpose only—and that was the purpose of having militiamen who were able to fight to preserve the nation."

I agree with The Justice.

[Chan790]

1. As do I.

That is my position in full...I do not believe that a Constitutional right to RKBA exists and I believe SCOTUS will eventually come to agree with me, you and the Notorious RBG on this eventually.

[SunSeeker]

57. SCOTUS did agree with you up until 2008's ridiculous 5-4 Heller decision.

We just need to change ONE of those 5 nutter conservatives for a progressive and SCOTUS will agree with you again.

[BlueCaliDem]

87. Also to note, Justice Bader-Ginsberg and Justice Breyer are President Bill Clinton appointees.

With four, maybe five, seats to open on SCOTUS in the next decade, we need a president in the White House who can not only replace both Justices Bader-Ginsberg and Breyer (who are rumored to want to retire) but also appoint new Justices for Scalia and Kennedy who will either retire or keel over in their seats a la Rehnquist.

We can't afford to have another foul-up like in 2000 that put Duhbya Bush in the White House and gave us Roberts and Alito. We need a strong Democratic president who knows where the bodies are buried and who pull these skeletons out to twist Republican (and maybe even Democratic) arms in the Senate Judiciary Committee in order to get them through.

Four more vitally important reasons why we need Hillary Clinton in the White House.

[SunSeeker]

95. I so agree. nt

[former9thward]

121. Not true.

You can't cite one case pre-2008 where the SC says what you say.

[SunSeeker]

122. You are wrong, former9thward. Stevens cites the cases in his Heller dissent.

Here is but a small snippet:

In 1934, Congress enacted the National Firearms Act, the first major federal firearms law.1 Upholding a conviction under that Act, this Court held that, “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.” Miller, 307 U. S., at 178. The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.

Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there;2 we ourselves affirmed it in 1980. See Lewis v. United States, 445 U. S. 55 , n. 8 (1980).3 No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses.

The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text; significantly different provisions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions; postenactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Court’s decisional process than on the reasoning in the opinion itself.

https://www.law.cornell.edu/supct/html/07-290.ZD.html

[former9thward]

124. That is not what it says.

The Miller case involved automatic weapons -- not the type of weapons Americans can now legally buy. It also involved a defendant who had disappeared by the time the case reached the SC. No attorney showed up to even argue Miller's side. You may think a case like that has precedent but because of the factual circumstances it was one of the weakest SC decisions.

[SunSeeker]

128. Miller was good precedent, as were the other cases Stevens cited.

It is really disappointing to see someone mouth the right 5's bullshit pro-gun arguments on a progressive board.

[former9thward]

140. It is really disappointing to see someone

wants to attack the Bill of Rights on a progressive board.

[SunSeeker]

141. Preferring the progressive--and correct--interpretation of the 2A is not "attacking" it.

Nor is Justice Stevens, a great champion of civil rights jurisprudence, attacking the "Bill of Rights" in his Heller dissent.

You, on the other hand, are mouthing Scalia's argument.

[former9thward]

147. Actually I am mouthing Madison's argument.

But I think that is too much history for you.

[SunSeeker]

162. Bullshit. Madison could not have imagined what gun nuts would do to the 2A. nt

[jmowreader]

143. Miller was about sawed-off shotguns, not automatic weapons

Here's the decision:

https://supreme.justia.com/cases/federal/us/307/174/case.html

Miller was busted for transporting a double-barrel shotgun with barrels less than 18 inches in length across a state line, sued the government on Second Amendment grounds, and was told a sawed-off shotgun was not a weapon useful to the militia.

[former9thward]

148. You are correct.

I knew it was about weapons Americans can't buy at this time. I had forgotten it was about sawed off shotguns and so I assumed it was automatic guns. Miller had disappeared though and no one argued his side of the case.

[GGJohn]

153. Actually, Miller died before his case came before the court

so it was dismissed.

[MohRokTah]

2. Regardless of what she believes, the proper interpretation ot the constitution is...

whatever a majority of the court says it says.

[boston bean]

6. And that can change if people vote in presidents who want gun control.

Praise be to god, we will hopefully have a presidential candidate who believes in doing something about this national crisis.

[MohRokTah]

8. Any presidential candidate who promises to ban guns will lose. eom

[boston bean]

9. Who has suggested such a thing?

who is promising to ban all guns.

Ban some types of guns for the civilian population, which is allowing the easy mass murder innocents, yes.

[MohRokTah]

12. Read DU, it's what many supporters of all the candidates want.

Frankly, you are causing me to question my choices in this election, and I don't own any guns.

[boston bean]

14. Little ole me is causing you to question something so important?

[MohRokTah]

16. You and other DUers who want to ban guns. eom

[boston bean]

17. I want to see a ban on semi auto guns, that allow

persons to easily and quickly murder innocents.

Sorry, that doesn't sit well with you.

[MohRokTah]

21. Nope, it does not sit well with me.

It's unconstitutional to make such a ban. I would not vote for any politician who suggested such a ban.

[boston bean]

23. It won't be unconstitutional once we get a good ruling.

So, chill.

[MohRokTah]

24. You'll never get the ruling you want. eom

[boston bean]

26. So sayeth you. You will be very suprised one day.

This country cannot function with this kind of threat to innocents.

And it WILL change, for the better.

[GGJohn]

29. And when, not if, but when you don't get your ruling,

will you come back here an say you were wrong?
Because as was pointed out to you, you're not going to get that ruling.

[boston bean]

31. No matter how long it takes, I won't ever say I am wrong on this.

I will always hope for this scourge on our nation to end.

[MillennialDem]

88. "Gay marriage bans will never be ruled unconstitutional"

[MohRokTah]

90. You are comparing apples to horse shoes. eom

[MillennialDem]

91. I know they're not the same thing, but a more favorable supreme court will likely

eviscerate the current meaning of the 2nd.

[MohRokTah]

94. Kagan wouldn't

So you need to replace at least two of the more conservative justices.

Not sure how Sotamayor would come down.

[lark]

45. I read DU every day and have never seen anyone advocating for take all guns.

It's just a straw man used by gun supporters as a boogie man and it's not true. We say less guns, more rules.

[MohRokTah]

47. You must have not read about half the anti-gun threads over the past two days, then.

Calling for the banning of all semi-automatic weapons, approximately 120 million of which are currently legally owned, is rampant on the site.

I've even seen DUers call for banning revolvers, too. Yes, 400 year old firearm technology has been called upon to be banned on this very site.

And yes, multiple posts calling for banning ALL guns.

[lark]

49. Where?

Can you post the link?

[MohRokTah]

52. Here:

http://www.democraticunderground.com/10027418609

http://www.democraticunderground.com/10027418609#post35

http://www.democraticunderground.com/10027418526

There are more...

[lark]

62. Nope, that's not what you said or what I asked for.

She wants to ban owning mass quantities of guns and mass killing types of guns, not ALL guns. Show me one post where someone says all guns should be taken, still haven't seen any.

[X_Digger]

76. Here you go- feel free to move the goal posts again. ;)

http://www.democraticunderground.com/10027421339#post52

[MohRokTah]

79. I recommend you improve your reading comprehension skills. eom

[MohRokTah]

116. Okey doakey, here's another

From two days ago:

http://www.democraticunderground.com/10027417716

OP, Ban all guns.

[rockfordfile]

133. Why are you here?

There needs to be something done about our gun problem in our country.

It just seems that you would be more suited for a right wing forum.

[MohRokTah]

136. Who aare you to question why I am here?

Do you honestly believe that because somebody supports the second amendment, they have to be a right winger.

Are you seriously that shallow or politically ignorant?

[lark]

144. OK, you got me.

O.N.E. person said that. However, that's one out of millions. Almost everyone on here does NOT say that, as you know. There's no sweeping call for confiscating all guns as you and a host of other pro-gun folks constantly claim.

[MohRokTah]

145. It's more than one

It's a general attitude here, but I simply do not have the time to search, copy, and paste all of them from this iPad.

[lark]

146. I read here too.

There is NO general attitude to take away all guns. We mention stopping assault style rifle sales and many gun nuts heads explode because "They're taking my guns!!"

But this is the last response. You have your opinion and I have mine and neither of us is about to change our minds, so ta ta. Have a nice life.

[Squinch]

73. Not one of those called for banning guns. Try again.

[MohRokTah]

75. All of them did.

I suggest you take a remedial reading course.

[Squinch]

78. None of them did.

[LiberalArkie]

55. Well I guess I will say it. I would like something like what Australia did about weapons

to happen here, but it won't. We are not smart enough to do things like that and our gun owners are not patriotic as the Australian owners were.

[lancer78]

159. ok, if we have

The turn in rate australia had, there will still be a quarter billion guns on the street.

[GGJohn]

161. So for me to be a patriot, I have to give up my firearms?

That's utter bullshit.

[A Simple Game]

56. Revolvers are 400 year old technology?

Know what you are talking about or your argument is irrelevant, isn't that what the gun control side is told after every mass killing. You do your cause no service by not knowing the proper timeline, terms, and technology, or so we are told.

[MohRokTah]

60. The oldest revolver still existing was manufactured in 1597. eom

[A Simple Game]

81. I stand corrected, maybe I should take my own advice.

Very nice looking weapon too even if manually operated.

[EX500rider]

54. Please, their have been multiple calls to ban all guns in multiple threads.

[Squinch]

67. Boston, I have the answer to this. There is an interesting phenomenon that I have deciphered:

If a poster says, "You must take the responsibility for your hobby and ensure that your gun is not used to hurt me," the gun nuts hear the following: "I am going to break into your home with government storm troopers and confiscate all your guns."

Happens ALL the time! These gunners are a fascinating bunch.

[rockfordfile]

134. "gunners" I think do have a mental problem.

I think they're cowards to and afraid/paranoid about everything around them.

[GGJohn]

155. Wow!!!

That's deep.

[ChisolmTrailDem]

19. But aren't you glad she said it? nt

[MohRokTah]

22. No. It decreases my respect for her. eom

[ChisolmTrailDem]

25. It increases my respect for her. But at least you're on record: YOU DO NOT RESPECT JUSTICE GINSBURG.

'Nuf said.

[MohRokTah]

27. I love it when grabbers try to put words in my mouth. eom

[ChisolmTrailDem]

30. I'm not a "grabber". You should pay better attention. nt

[MohRokTah]

33. I disagree. eom

[ChisolmTrailDem]

34. So you think you can decide for me what my stance is on an issue? I have never said a single word..

...about "grabbing" guns.

You may think you're smarter than everyone else on this board, but you have no idea what you're talking about.

[MohRokTah]

36. You decided what my stance on an issue was, so turnabout is fair play. eom

[ChisolmTrailDem]

40. Mo on Ginsburg: "It decreases my respect for her." Tell us how much you respect her. nt

[MohRokTah]

41. Of all the SCOTUS justices, I respected her the most...

until I read her statements on Heller.

Now I respect her fourth most.

Kagan now has the most respect from me. At least she owns guns.

[Skittles]

123. anyone who isn't a gun humper is considered a "gun grabber"

it is part of their paranoia

[morningfog]

59. Which is why we need to change the majority. We can end this.

[MohRokTah]

61. That will win votes for the Democratic nominee.

[morningfog]

63. You don't support a liberal majority in the SC? Noted.

[MohRokTah]

72. I do not support a majority that would ignore the second amendment

Fortunately, Kagan would never ever alter jurisprudence to that degree, but if a nominee is so stupid as to declare they would nominate justices that would overturn Heller, that nominee will not win.

[Squinch]

83. So you believe Dredd Scott was the proper interpretation of the Constitution?

[MohRokTah]

86. By the constitution, the proper interpretation of the constitution is ALWAYS...

What a majority of the SCOTUS says it is. This has stood since Marbury v Madison. If you don't like how our system functions, you need to suggest amendments to alter it.

[Squinch]

89. So you believe Dredd Scott was the proper interpretation of the Constitution?

[MohRokTah]

92. See my prior post.

The Dred Scott decision was made on the construction at the time.

It resulted in the 13th, 14th, and 15th amendments, making Dred Scott a moot decision.

This is how our system works.

[Squinch]

93. So you do. OK.

[MohRokTah]

96. Straw man, typical. eom

[elleng]

103. Not necessarily 'proper,' but certainly 'CURRENT.'

[MohRokTah]

105. You may not like it, but it is ALWAYS the proper interpretation.

See the Dred Scott example above. When a decision based upon current constitutional law and precedent is greatly disliked, the constitution is amended.

[elleng]

107. I KNOW the process,

and the precedents. It is NOT always 'proper,' as Dred Scott clearly demonstrates.

It is the CURRENT interpretation.

Have a good day.

[Turn CO Blue]

119. Oh, you mean like Dred Scot or Korematsu or Plessy v Ferguson? The SCOTUS is NOT infallible.

The "majority" of the court has fucked up majorly in dozens of interpretations.
Repeat: The SCOTUS is NOT infallible. Not now and not historically.

How about Citizens United? How about the 18th Amendment?

Go ahead and tell me that those decisions were "right for the time", or some other such triangulation. Those decisions were ALWAYS wrongheaded and incorrect. And 2A is a completely misinterpretation, especially based on the original text as submitted, before editing, which was:

“The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” Veit, et al., at 12.

Actually, the Constitution does not say that SCOTUS gets the last word on what the meaning was...the Court's role was interpreted in Marbury vs Madison. So basically, it was the SCOTUS that inferred that the SCOTUS gets the last word.

Besides, as we know, there is clear precedent for repealing amendments, and/or passing a new amendment that overrides a previous amendment.

Hell, the Republicans are trying to privatize the Post Office, and the founders established the Post Office and postal routes as primary function of the new government in the original document (not later as an Amendment) but that sure as hell is not going to stop Republicans from at least trying to REWRITE the original text of the Constitution for their corporate buddies in the shipping business.

We amended those parts about slave-ownership, 3/5 of a vote and women's voting rights.

We can amend 2A. We just need the will and a groundswell.

[pintobean]

3. If it was a requirement, why would they call it a right

Last edited Sun Dec 6, 2015, 11:42 AM - Edit history (1)

of the people, and prevent congress from infringing upon that right? If her claims were true, there would have been no need for the amendment.

[appal_jack]

5. Indeed. nt

[GummyBearz]

39. Bingo

Now await the non-replies, because you just made too much sense

[lark]

46. Historical measures from Europe.

Remember, most Americans hadn't been here that long and were steeped in European law. That's the reason. It made sense for the times, doesn't anymore at all. Today's reading is a total twisting of the words of the constitution.

[erronis]

58. Agree. And it wouldn't really matter whether or not it's a "constitutional" question.

It's become a religiou$ issue. Corporations and people can make money by peddling fear and some possible salvation via weaponry.

Obviously, the NRA and other RWNJ will try to escalate what should be a rational discussion about personal safety into a threat that the LWNJ are trying to take the assault weapons away.

If this can be couched as a them-vs-us problem then all intelligent discussions are overridden by the non-thinking parts of the brain.

[pintobean]

100. BS

[lancer78]

160. it isn't a right

"The bill of rights" is a bit of a misnomer. The bill of rights states things government shall not do. It does not grant rights. 1st amendment states state actors shall not limit speech as an example

[Hoyt]

4. Hopefully we will get a SC again that is not packed with callous, racist right wingers.

[GGJohn]

18. Guess you also don't understand settled law.

The justice's are loath to revisit or overturn settled law, law like Heller v DC, case in point, we've had a RW court for decades now, yet Roe v Wade still stands.
That should tell you something.

[ThoughtCriminal]

37. Guess your don't understand that the court can and has reversed itself

It is not common and sometimes takes a long time, but it has and will happen.

You can cling to Scalia's far right ideology and your 5-4 majority, but I'm siding with Ginsburg.

[GGJohn]

38. I'm not clinging to anything,

I'm just stating a fact of life, very rarely has the court revisited settled law and overturned itself, and I very much doubt that will happen with Heller v DC.

[ThoughtCriminal]

42. You are clinging to a 5-4 decision

rendered by some of the most extreme right-wing justices that we have seen in the past century.

[GGJohn]

43. No, I'm clinging to historical fact.

There have been hundreds of 5-4 decisions yet, they still stand.

[Hoyt]

66. No, you are clinging to keeping your 5 gun safes filled with lethal weapons and ammo.

[GGJohn]

70. Please seek help for your unhealthy fascination of 5 safes.

[Hoyt]

71. Just pointing out where your loyalty and views lie.

[GGJohn]

77. As I said...................

[lark]

50. Come on, they constantly chip away at it.

There are many places where abortion, although totally legal, aren't available. These two things aren't equal. Do you want this to happen with guns, I don't think so. Seems like you want unfettered rights and you could care less that millions of innocents are killed every year, long as you have your beloved guns.

[GGJohn]

113. That's the states, not SCOTUS,

and most of those onerous laws are overturned on appeal by the lower courts.

No, what I want is for the law abiding citizens of this country to have the right to the freedom of choice to make the decision that's right for them, ie: whether or not to own a firearm.

[Hoyt]

65. Precedents are overturned all the time, as Heller and McDonald proved.

[GGJohn]

74. Wrong again Hoyt, as usual.

Heller or McDonald didn't overturn any SCOTUS settled law.

[X_Digger]

7. If the framers of the federal constitution intended a qualified collective right..

.. why did those same framers go back to their respective states and protect an individual right?

[div class='excerpt']The present-day Pennsylvania Constitution, using language adopted in 1790, declares: "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned."

Vermont: Adopted in 1777, the Vermont Constitution closely tracks the Pennsylvania Constitution. It states "That the people have a right to bear arms for the defence of themselves and the State.."

Kentucky: The 1792 Kentucky constitution was nearly contemporaneous with the Second Amendment, which was ratified in 1791. Kentucky declared: "That the right of the citizens to bear arms in defence of themselves and the State, shall not be questioned."

[NNadir]

20. If the Second Amendment said what the NRA thinks it said...

...why would individual states need to add this right to state constitutions cited in your example?

The 1792 constitution of Kentucky almost certainly had slave clauses in it as well. The search for "original intent" is silly, particularly as the Constitution itself was very controversial even during its framing.

Benjamin Franklin, in many ways the inventor of the United States, remarked at the end of the Constitutional Convention, noting a decorative sun on the back of the chair in which the President of the Convention, a fellow named George Washington, sat, (I paraphrase) "For the entire length of the convention, I have been trying to decide if the sun on the back of the chair was rising or setting on the American nation. I have decided it is rising."

Franklin said so even though he was painfully aware of the imperfections of the document. He himself in approving the constitution had to compromise with his deeply held abolitionist sentiments.

He was a rationalist. The people who hold up the Second Amendment as a law handed down by God are, frankly, irrational nuts.

It doesn't matter what the framers had in mind, even though I personally think that the militia was what the second amendment was about, since they were mere human beings, and not gods, living in a primitive time. If the Second Amendment means that assholes can walk into a movie theater dressed as Batman and blow people away, or that an asshole can assault and kill school children and their teachers in their classrooms in public elementary school, it's a pretty fucking bad law and needs to be repealed.

Your analysis is, in any case, not quite on the level of Lincoln's Cooper Union Address.

[X_Digger]

35. That's a non sequitur. Care to address what I actually wrote?

There was a not-small cadre of framers who thought the bill of right wasn't even needed-- that the government would never infringe on a right because it wasn't granted the power to do so. They worried (and apparently rightly so) that the explicit protection of some rights would cause future generations to claim that others not explicitly protected could be infringed. The compromise was the ninth and tenth amendments.

You seem to be under the mistaken impression that the bill of rights (or state constitutions) "grant" or confer rights. It doesn't.

It's right there in the preamble to the bill of rights:

[div class='excerpt']The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.

Abuse of whose powers? Declaratory and restrictive clauses against whom? The government. This is not a 'the people can' document, it's a 'the government shall not' document.

[NNadir]

109. I did address what you wrote, but I think you didn't get it.

What my remarks were meant to state is that people living in the 18th century were not all knowing Gods. When you cited people living in the 18th century, I stated I couldn't care less about this conservative view of the Constitution. This is hardly a non sequitur. It rejects your basic premise, which you now repeat by citing the preamble to the bill of rights, a document written under 18th century conditions.

The people who wrote the Constitution knew very well that they were not Gods, even if clueless people who worship them as Gods today don't. That's why they put a mechanism in the Constitution for its amendment.

For one thing, many of them were laboring under the impression that a "right" implied in their constitution was to treat other human beings like farm animals. Obviously this 18th century thinking - although many people in the 18th century, even some among "the founders" like Adams and Franklin, were relatively advanced in their thinking compared to many other "founding fathers" on this score - was not inviolably correct.

The Constitution is not the Koran. It's not the Bible. It's not the Torah.

It's the Constitution of the United States, subject to revision whenever its clauses have outlived their time.

And again, if the Second Amendment means that two high school kids can load up with guns, burst into a high school, and shoot up their peers and teachers, killing many and paralyzing and otherwise wounding others, it's as odious as the slavery clauses put into the constitution by the "Founding Fathers;" it needs to be treated exactly like the 18th amendment, repealed. If the Second Amendment means that a single guy can roam around a Campus in Virginia shooting his fellow college students, killing 32 people, including three highly accomplished professors of engineering, I am spectacularly uninterested in what the people who wrote this amendment intended. It's a bad law that is morally reprehensible and unsuited to 21st century life.

Why should I give a rat's ass what the 18th century intent of the Bill of Rights was? I am interested in the Constitution as a living document, not as some fossil.

The document that they, the founders, put together was a brilliant document in the sense that it allowed for flexibility and change. However, it is not the case that one brilliant act on the part of an individual or a group of individuals means that all of their acts are brilliant. I think it's pretty clear in the 21st century that the Constitution has evolved. If it didn't evolve historically, it would have died, because, among other things, African Americans are decidedly not farm animals, and never were farm animals, even if many of the people who wrote the Constitution acted, in a completely self serving and reprehensible way, as if they were.

Enjoy the rest of the weekend.

[X_Digger]

111. No, you haring off on a different subject is a non sequitur.

We were discussing whether or not the right protected by the second amendment is an individual right or a 'qualified collective' right.

You've not addressed that in your ramblings. Why is that, I wonder?

And again, if the Second Amendment means that two high school kids can load up with guns, burst into a high school, and shoot up their peers and teachers, killing many and paralyzing and otherwise wounding others, it's as odious as the slavery clauses put into the constitution by the "Founding Fathers;" it needs to be treated exactly like the 18th amendment, repealed.

And again, you've demonstrated that you think the bill of rights grants rights. It doesn't. If the 2nd amendment were repealed tomorrow, the right would go from being explicitly protected as an enumerated right to being implicitly protected as an unenumerated right via the ninth and/or fourteenth amendments. A good example is the right to travel. It is not enumerated in any of our founding documents, yet it exists and is protected.

[NNadir]

163. Um...um...um...yeah...yeah...

Last edited Wed Dec 9, 2015, 10:21 PM - Edit history (1)

It's called the bill of "rights," why then can you claim doesn't grant "rights?"

Your hair splitting borders on incoherence. Obviously, a "right" to own a gun gives some people the power to do what I described in what you label, in a clear demonstration of an inability to discern a point, and I think, to read very well.

You might actually start by reading the 2nd amendment itself.

To wit:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The word "right" actually appears in the bill. However the operative words, that blow through your rather mindless argument, are those I've put in bold.

Repealing the second amendment, which the asses in the NRA, many of whom have a confused their male sexual organs with rifled tubes attached into which explosive chambers can be added, obviously interpret that "shall not be infringed" implies that congress shall pass no law "infringing" the "right" for people who I described, and which you partially quoted...

... two high school kids can load up with guns, burst into a high school, and shoot up their peers and teachers, killing many and paralyzing and otherwise wounding others

...to buy weapons. One need not be very bright to see through the tortured reasoning you offer. It is clear that if the stupid amendment were repealed, Congress and the States could easily pass laws infringing the idiotic "right to bear arms."

Are you trying to be clueless, or is it just an affectation on the part of a person who thinks he needs a gun in order to live?

I'm an old man. I never owned a gun, and never needed one. I will confess that I have been threatened with a gun - which the asshole doing the threatening should not have been allowed to own - but obviously, I'm um, still alive.

The "right" to have guns is impinging the "right" of many others to live. The victims of San Bernadino, of Colorado Springs, of Aurora, of Columbine High School, of Sandy Hook have no implied or unimplied right to travel. They're dead, and the kind of "reasoning" you offer - which in my view would not actually constitute reasoning at all - is wholly and clearly responsible for their lack of implied right to travel for all of those people. Graves don't go anywhere.

Jesus, people get so damned strange when they confuse their penises with guns.

[X_Digger]

164. It's the bill of right because these are rights that it protects! It's right there in the preamble.

[div class='excerpt']The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.

The Bill of Rights was intended as a 'the government shall not' document- "to prevent misconstruction or abuse of its powers"- not a 'the people can' document. Abuse of whose powers? Declaratory and restrictive clauses against whom?

If the Bill of Rights were a 'granting' of a person's rights, there would be no need for the ninth and tenth amendments ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." and "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." respectively.)

(Notice it says 'enumeration', not 'granting', 'creating', or 'conferring'.)

Fucking duh.

You need to go back to 10th grade civics class.

http://www.reviewjournal.com/opinion/few-reminders-constitutionally-challenged

As recent events have clearly amplified, the average American's grasp of the content and purpose of the U.S. Constitution is woefully inadequate and too often inaccurate.

Ask a friend, a family member or a co-worker about the Constitution and what it does. You are likely to be told it grants Americans their rights and assures democratic elections and fair trials, or something along those lines. You'll also learn these things belong only to individual Americans. Foreigners and corporations are not covered.

No Miranda rights for the knickerbomber. Corporations have no free speech rights. Not in the Constitution. Never mind what the Supreme Court ruled in Citizens United v. Federal Elections Commission, saying laws limiting free speech by anyone are tantamount to censorship.
...
The Bill of Rights does not grant rights, either. Those 10 amendments limit the power of government to encroach on the rights presumed to belong to all of us.

http://www.pbs.org/tpt/constitution-usa-peter-sagal/rights/#.VmjTwr99ZmN

What is a right, and where does it come from? A right is a power or privilege that is recognized by tradition or law. Natural or human rights are inherent to human nature; they are not given by government, but neither does government always protect them.

[erronis]

64. Nice explanation. I guess we will always try to understand what was in the framers' minds,

and be able to warp their writings unless they are extra-ordinarily clear.

And how would some gent in the 18th century know about people in the 21st that can get advanced killing devices by walking down the street?

I hate to muddy these waters with my muddled juxtaposition, but isn't that what a lot of people do with the Torah, the Bible, the Koran? How would they have known?

[SunSeeker]

85. "in defense of themselves and the State" is a reference to citizen militias.

We don't have militias any more; we have a standing army and state national guard units who provide for our defense.

[X_Digger]

97. And? You seem to think that the bill of rights (or state constitutions) limit rights. They don't.

What we're discussing is Justice Ginsburg's contention that rights only apply when one particular application of the right is still valid.

If I said, "I'm out of soda, I'm going to the store," would you assume that stores only sell soda? Or that I'm only going to buy soda?

[SunSeeker]

99. The "right" is citizen militias, not private gun ownership for love of gun play. nt

[X_Digger]

102. "right of the people to keep and bear arms." -- does not say "the right to form citizen militias".

If that's what they meant, why didn't they say so?

Article I, Section 8 empowers the government to form militias, why would they need to repeat themselves??? There are also state analogues in their own constitutions, separate from their protection of the right to keep and bear arms. Why would they also repeat themselves?

The lengths that some will go to try to twist logic, history, and grammar are ludicrous sometimes.

[SunSeeker]

114. The 2A's words: "A well regulated militia being necessary to the security of a free state..."

"The lengths that some will go to try to twist logic, history, and grammar are ludicrous sometimes." Oh the irony.

[X_Digger]

115. "I'm out of soda, I'm going to the store." -- do stores sell more than soda? Am I only buying soda?

So why did these folks have to repeat themselves twice, (four times if you count state analogues) if the intent was to establish the militias?

Derp.

[GGJohn]

117. Here, let me finish it for you.

The Right of the People to Keep and Bear Arms, shall not be infringed.

If the FF meant it to be a collective right, then they would not have added that.

[SickOfTheOnePct]

110. Because at the time the Constitution was adopted

The Bill of Rights didn't apply to state governments, only to the federal government.

[X_Digger]

112. Well, the point being.. these same folks wrote one set of documents protecting an individual right..

.. what makes a person think that these same folks turned right around and then wrote a document protecting it as a collective right?

Doesn't make any sense.

[GGJohn]

10. And the majority of Constitutional scholars disagree with her,

as does Pres. Obama and the Democratic Platform.

[NNadir]

11. I love Justice Ginsberg, but I wish...

...she'd retire. There is a possibility that a Republican will be elected to this already reactionary court. We have only a year remaining on this Presidency.

If Thurgood Marshall had hung on for another year on the court rather than in the Daddy Bush years, we wouldn't have Clarence "The Clown" Thomas on the court.

I think Justices need to consider this.

[aikoaiko]

13. If she truly believed her interpretation of the 2nd then we would have unregistered machine guns

Until the amendment is repealed.

Whether a law is outdated is not for judicial review.

[Orrex]

28. "Whether a law is outdated is not for judicial review."

I'm pretty sure that that's incorrect, since "passing Constitutional muster" is at least as much about the timing of a law as about the founders' intent. That is, there's no immutable, objective standard to which the Constitution adheres, Scalia's fairy tales notwithstanding.

Capital punishment is still permitted in large measure because the SCOTUS has declared that states haven't decided en masse that it's an embarrassing, obsolete relic of bronze age mythology; they could easily declare it to violate the Constitution, but they don't feel that states are yet ready to accept that it's barbaric and outdated.

[appal_jack]

15. Does the existence of army barracks render the Third Amendment void?

Last edited Sun Dec 6, 2015, 11:36 PM - Edit history (1)

I'm glad that we have a standing army in this day and age (it's certainly larger than it needs to be, but that's another discussion), but its existence is only one facet of "the security of a free State." The right to keep and bear arms exists separately and entirely, regardless of the Second Amendment's prefatory clause. Indeed, the right of self defense existed in common law long before the US Constitution and its first ten amendments enumerated some of our most important rights.

RBG is grinding an axe here, rather than upholding the Constitution as she swore to do. As they say in meme-land, "I am disappoint." She might as well say that the Third Amendment could be dispensed with since we have bases and barracks. That's as may be, but soldiers still can't quarter in my house.

-app

[gwheezie]

32. The founders and early government regulated firearms

It wasn't a friggin free for all. They restricted who could own them. They detailed how ammunition could be stored. They demanded everyone be able to pass muster for crissake. I want every state to have a division of passing muster. The government could challenge your right to bear arms, from the earliest days.

[stupidicus]

44. me too

and the reasons behind/for that language is nothing short of disgusting

But the Constitution’s Framers in 1787 and the authors of the Bill of Rights in the First Congress in 1789 never intended the Second Amendment to be construed as the right for individuals to take up arms against the Republic. In fact, their intent was the opposite.

The actual goal of the Second Amendment was to promote state militias for the maintenance of order in a time of political uprisings, potential slave revolts and simmering hostilities with both European powers and Native Americans on the frontiers. Indeed, its defined purpose was to achieve “security” against disruptions to the country’s republican form of government. The Second Amendment read:

“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” In other words, if read in context, it’s clear that the Second Amendment was enacted so each state would have the specific right to form “a well-regulated militia” to maintain “security,” i.e., to put down armed disorder and protect its citizens.

In the late Eighteenth Century, the meaning of “bearing” arms also referred to a citizen being part of a militia or army. It didn’t mean that an individual had the right to possess whatever number of high-capacity killing machines that he or she might want. Indeed, the most lethal weapon that early Americans owned was a slow-loading, single-fired musket or rifle.

https://consortiumnews.com/2015/10/07/the-second-amendments-fake-history/

[jalan48]

48. The US is into selling armaments at home and abroad.

Or, I should say the armaments industry is into selling them. Chaos and death are collateral damage, the profits are soaring for this business.

[cantbeserious]

51. This Citizen Suspects That A Ginsburg Smear Campaign Is Now Underway By The NRA

eom

[Photographer]

53. +100 n /t

[Hoyt]

69. Not just the NRA, gun fanciers everywhere.

[cantbeserious]

80. Yes - This Citizen Agrees - Weapon Enthusiasts - Must Have Arch Enemies To Battle

Otherwise, why the need for all the guns.

[Lizzie Poppet]

118. Not me.

I'm quite a fan, for all that I think she's wrong on several points in that article. She's an excellent jurist.

[CBGLuthier]

68. Smart woman. Too bad so many in this nation are too fucking dumb to understand

simple english.

[ananda]

82. Right on.

And really just Logic 101.

[smirkymonkey]

84. K&R

[Agnosticsherbet]

98. Is there a link to this

[elleng]

101. NO DOUBT!

"If the Court had properly interpreted the Second Amendment, the Court would have said that amendment was very important when the nation was new; it gave a qualified right to keep and bear arms, but it was for one purpose only—and that was the purpose of having militiamen who were able to fight to preserve the nation."

So the majority completely DISREGARDS this.

[DrDan]

104. Bravo - spot on!!!

[jtuck004]

106. The Bill of Rights has an expiration date? Or just the parts you woke up hating?

This sounds a bit more like the excuses of a politician, instead of considered opinion.

Since we are being liberal about our definitions, let's take a little time pill and go back to the framer's table, and know that when they said "militia" - and, regardless of some contentions, the US wasn't the first god damn nation ever established - and militia meant "all able-bodied men who are not members of the Army or Navy". So whether there was an army or navy then, the militia was separate from that.

and "its function is to enable the young nation to have people who will fight for it to have weapons that those soldiers will own" < That's precisely what is happening today - judging by the military style weapons that frequent people's mantles. Well, where the mantle would be. But that was back then when we had muskets.

Thank you for playing.

Anyway, the freedom to keep guns was something that distinguished this country from so many other. So much so that keeping guns has become synonymous with freedom through most of the center of the country. As long as that association is there, you might as well figure on a war of attrition, because it will take 2 or 3 lifetimes to rid us of the 300 million+ guns that are in homes.

Seen the headlines? Since Evilhair started his campaign of hatred for president, gun permit requests are higher than ever.

Besides, the soon to be seen water wars, the disruptions in our food supply and cities going underwater are going to overshadow the few killings from this. Assuming we aren't hit by a biological attack that kills a couple million people, which is likely just a matter of time.

Those conflagrations will make us forget all of this.

[Captain Stern]

108. If the amendment were reinterpreted to mean what Justice Ginsburg thinks, nothing would change much.

Whether or not being able to bear arms is considered an individual right will fall back to the states. 44 states declare in their constitution that individuals have the right to bear arms.

Additionally, if the 2cnd were reinterpreted, I have no doubt that an amendment that clearly states that all citizens have the right to bear arms, regardless of militia status would be proposed, and easily go through the House, the Senate, and be ratified by well over 34 of the states.

The people that want to ban guns aren't going to be able to get what they want through Tyranny, or by running an end-around and reinterpreting the 2cnd Amendment. They are going to have to put in the work, and convince the rest of the country that they are right.

[moondust]

120. Agree.

Other considerations include King George's gunpowder embargo and attempts to confiscate the cannons of the Lexington and Concord militias, attempting to leave the colonies defenseless from foreign invaders and/or the tyranny of the King's men. "We're gonna make sure that never happens again."

The 2A could have simply left out the part about militias if it was meant for individual arms ownership. Better yet, if that was the intention it could have simply stated as much: "The right of each citizen of the United States to keep and bear SMALL arms shall not be infringed."

The fact that it doesn't place any limits on the size or number of "arms" is another indicator that the 2A was intended for militia protection of the collective--whatever that may require to ward off foreign armies or invaders. I kinda doubt the 2A was meant to open the door to private ownership of artillery and private armies.

[beevul]

130. Open the door?

The fact that it doesn't place any limits on the size or number of "arms" is another indicator that the 2A was intended for militia protection of the collective--whatever that may require to ward off foreign armies or invaders. I kinda doubt the 2A was meant to open the door to private ownership of artillery and private armies.

Open the door? That door was already opened. You are not aware of the privately owned warships of the time, I take it? Is it your suggestion that they intended to 'close' that door? Amendment 2 seems to cover them as protected, as written.

[moondust]

131. Link?

Private armies and/or navies/warships at the time?

[beevul]

132. its often overlooked.

http://en.wikipedia.org/wiki/War_Powers_Clause


We don’t issue Letters of Marque anymore. While we are not a signatory to the treaty forbidding them, we generally follow that treaty. What is a letter of Marque? It’s basically an official commission from the government for a private person to attack enemy shipping without being branded a pirate. What do you think that a person would have to have in order to attack enemy ships with? You guessed it, a ship, armed with weapons appropriate to naval combat.



More:

Private ships of war and the American maritime tradition



by J. Michael Waller
Serviam, January-February 2008

Lynx Privately owned warships are so deeply at the heart of American maritime tradition that a reference to them is enshrined in the U.S. Constitution. With their own contract crews who rushed to the fight for independence during the American Revolution and in defense of the nation during the War of 1812, the private warships successfully waged naval guerrilla warfare against the world’s most powerful fleet. Private warships also fought the Barbary pirates in the nation’s first foreign war.

The privateers of the Revolutionary War and the War of 1812 were much different from the private military contractors (PMCs) and private security contractors of today. They operated as independent businesses, chartered by Congress and bonded to ensure observance of the law, but, unlike PMCs, they were free of the military chain of command. They served the national interest not as government contractors, but made their profits by attacking enemy shipping—especially commercial shipping, on which the enemy’s economy depended. Those on the receiving end viewed privateers as glorified pirates. But the U.S. government viewed them as legitimate weapons against the commercial engine that fueled the enemy’s armed forces. Several European powers also used privateers at sea.

By necessity, American naval warfare at the time was asymmetrical against the overwhelmingly superior Royal Navy. From the very beginning, the leaders of what would become the United States of America turned to the private sector to do cost-effectively and efficiently what the government could not do at all. Before independence, in April 1776, the Continental Congress voted to issue commissions for “private ships of war” to attack the British. Borrowing from established French and British practices, the Continental Congress authorized the issuance of “letters of marque and reprisal” for the owners and captains of private warships to attack enemy vessels. In one of the Founding Fathers’ earliest regulations of private business, the Continental Congress legislated how the private naval forces and their commanders and crew would conduct themselves, and required privateer owners to post bond to guarantee compliance.

http://jmw.typepad.com/political_warfare/2008/01/private-ships-of-war-and-the-american-maritime-tradition.html

That's the jist of it.

[moondust]

135. "They served the national interest..."

"chartered by Congress and bonded to ensure observance of the law"

I still doubt the 2A was meant to open the floodgates for rogue private concerns to buy up whatever heavy military hardware they wanted, form private armies and navies and deploy them in the service of private interests--perhaps even against the young government itself. Yet that seems to be the NRA interpretation: "anything goes."

The problem with the 2A is ambiguous language.

[beevul]

142. You miss the point.

"chartered by Congress and bonded to ensure observance of the law"

Yes. But they were still privately owned.

I still doubt the 2A was meant to open the floodgates...

Privately owned warships, and cannons, were not uncommon. The point is, there were no flood gates to open. That rubric had already been crossed, and the framers AKA the people who had issued those marques, were well aware of it. I doubt very much they intended to strip people of that private property or to forbid the private ownership of it in the future, with an amendment intended to restrict only government, contained in a list of like restrictions intended to restrict government.

The problem with the 2A is ambiguous language.

The language is only 'ambiguous' to those who refuse to read it through the lens it was intended to be read through, which is stated quite clearly in the preamble to the bill of rights itself.

[davidn3600]

125. Sorry, but she's wrong

She wishes that is what it meant.

But when you read what Washington, Adams, Jefferson, Madison, etc.. all said about the 2nd amendment, their intent is very clear. Now I agree the amendment needs to be updated to today's modern world which is very different from the 18th century. But you have to do that through the amendment process. The Supreme Court doesn't have the authority to change the meaning of the Constitution.

[Photographer]

126. Well, she's smarter than me and I don't know you so I'll go with her on this.

[davidn3600]

129. Well, I'll go with the guy who actually authored the damn amendment

"Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms."
-James Madison

"The Constitution shall never be construed....to prevent the people of the United States who are peaceable citizens from keeping their own arms"
-Samuel Adams

[Major Hogwash]

138. Good post.

Ginsberg failed to address the issue.

[jmg257]

139. Yep - of course Madison was referring to the state militias overcoming

A federal army, so clearly he would expect them to be armed.

[villager]

127. Though consider how many gungeoneers are Scalia/Thomas fanboys (and girls) on this issue...

Kinda tells you all you need to know, really...

[Photographer]

137. True dat!

[Snobblevitch]

149. The question I have on this subject is,

when has it ever been illegal for all citizens to possess any gun in their home?

[Photographer]

150. Rail guns, BFG 9000's, fully auto's w/out permits and the dreaded Sawed off shotgun for a few...

I don't think we can have depleted uranium ammo either. Other than that it's a fucking cornucopia of killing instruments up for grabs here in the states.

[Snobblevitch]

151. Reading comprehension fail...

I wrote 'all' guns not some of them.

[Photographer]

152. Lighten up. I was just having a bit of fun with your post. The BFG 9000 should have been a hint.

[Snobblevitch]

156. Oh, I understood your sarcasm.

However, your constant calls for complete gun bans and confiscations are not helpfull on the topic of gun control. I am quite sure you understand that a complete on bans, even bans on semi-autos, is not realistic, and yet you post such drivel. Talk of bans accomplishes one thing, increasing gun sales. (Sturm-Ruger and Smith & Wesson were both up today.)

[Photographer]

157. We have different views and opinions on this but we should still be able to talk

with civility and even humor. Yeah, I'd like to see semi's off the streets. You wouldn't. I don't think you're a terrible person for not agreeing with me. Peace out.

[Snobblevitch]

158. If you mean 'on the street' as to mean criminals

and what could be seen as racist (gang members) I agree, we need to do something to reduce the nubers of guns 'on the steet'. Tvat would not include a nation-wide gun ban/confiscation plan, which would not work anyway.

[Spider Jerusalem]

165. She's kind of wrong, there, actually

it wasn't just that the fledgling USA couldn't afford an army. The maintenance of a standing army of regular troops in time of peace was seen as a threat to liberty. One of the causes of the Revolution was the British maintaining a standing army in the colonies. (There's an awful lot about this in contemporary literature of the 18th century; it was much debated in Britain at the time, and James II's maintenance of a standing army without the consent of Parliament was one of the reasons for the Glorious Revolution.)