actually incorrect.

the number of 5-4 decisions this term is one of the lowest in years. 40% of this term's decisions have been unanimous and 14% have been 5-4.

it's just that two very high profile decisions have been 5-4.

last year there was a high number of 5-4s...while the first year of Roberts' tenure had a low percentage as well.

Kevin wrote: "My personal, layman's view has always been that both the history and the wording of the Second Amendment point toward a limited, personal right to bear arms, not merely the right for a militia to be armed."

Right -- the first phrase of the 2nd Amendment, which clearly addresses the need for a "well-organized militia" as "essential to the security of a free state", was just thrown in there for no reason at all and means nothing.

And the authors of the amendment, who lived in a time when "arms" meant single-shot flintlock rifles, clearly intended that every citizen should be able to walk around carrying an arsenal of easily concealable semi-automatic pistols, each of which has the firepower of an entire army in 1776.

Indeed, it is quite clear that the "right to bear arms" means that every citizen has an unlimited right to own and carry any weapon or weapons that he or she can physically carry, including not only machine guns and hand grenades but backpack nuclear weapons.

You have really been bamboozled by the NRA's BS, which has nothing to do with anyone's "right" to self-defense or hunting (neither of which are even mentioned in the 2nd Amendment), and everything to do with enriching the wealthy and powerful arms manufacturers.

This is just another corrupt, partisan, lawless ruling by the bought-and-paid-for agents of America's Ultra-Rich Ruling Class, Inc. who are now the majority on the Supreme Court. It is another victory for corporate profits over human life.

Perhaps the gun nuts, which is to say anyone who wants to own a handgun, are now one magical step closer to shooting each other. One can dream.

Cheers,

Alan Tomlinson

P.S. Yes, I really think gun owners are that retarded.

Well, Stevens is 88, so let's hope we get a Dem in the White House or we will be up the creek.

BTW, while looking up his age, I found this fascinating nugget on Wikipedia (caveat emptor, but is is sourced). This is a measure of how right-wing the court is now:

On the Seventh Circuit Court of Appeals, John Paul Stevens had a moderately conservative record. Early in his tenure on the Supreme Court Stevens had a moderate voting record. He voted to reinstate capital punishment in the United States and opposed the affirmative action program at issue in Regents of the University of California v. Bakke. But on the more conservative Rehnquist Court, Stevens tended to side with the more liberal-leaning Justices on issues such as abortion rights, gay rights and federalism. His Segal-Cover score, a measure of the perceived liberalism/conservatism of Court members when they joined the Court, places him squarely in the ideological center of the Court. A 2003 statistical analysis of Supreme Court voting patterns, however, found Stevens the most liberal member of the Court.

It seems virtually certain the next president will replace Stevens. I've also heard RBGinsberg has had recurring health problems, but I can't find references to this anywhere.

I'd pick Kennedy as the next one likely to retire after that. None of the Four Horsemen are likely to retire for the next fifteen years.

I'm basically OK with this. My personal, layman's view has always been that both the history and the wording of the Second Amendment point toward a limited, personal right to bear arms, not merely the right for a militia to be armed. —Kevin Drum

The Constitution used to prevent wiman, negros and injuns from votin', too. That didn't mean it was proper. Other than law enforcement, no one needs a hand gun, which are designed exclusively as a concealable weapon for shooting people.

Hunting rifles and shotguns are okay.

My country is becoming an embarrassment.

Waiting for Obama to release a statement indicating his displeasure that Roberts, Scalito, Thomas, et al., don't go far enough in their opinion, and it's every citizen's *obligation* to own at least 3 firearms in order to go after homegrown terrorists & child rapists.

TOTALLY disagree with this squishy reasoning.

The experience of George Washington with a regular army vs. irregulars MAKES CLEAR from his originalist POV (interesting how Nino can be selective on that) that he, at least, and apparently many other founders, thought the "well-regulated militia" clause was the primary clause.

Otherwise, SecularAnimist goes into even more detail, on my same line of reasoning.

Time to do another "Kevin Drum's worst blog post of the week" at my blog.

ebay just announced separate auctions for personal atomic, anthrax and polonium defensive arms.

It seems to me the ruling creates a new right: The Right of Self-Defense.

I'm all for the 'original intent' interpretation of the 2nd Amendment. I think that every man, woman and child has the right to bear a powder-loaded musket.

mhr: they could have consulted the laws of places like Tibet and Zimbabwe...

Aren't fact-free right-wing smears supposed to at least have a nodding familiarity with reality? Zimbabwe? Really? At what point did the right abandon their traditional "totally incorrect and kinda loony" point of view and head off into LSD-land?

I'm just asking.

Kevin, look at Article 1 of the Constitution again. It assigns Congress the task of arming the militia. Officers and training are to be provided by the states.

The 2nd Amendment is not floating in a vacuum. The Constitution defines the term "militia" and references that definition in the 2nd Amendment of the Bill of Rights, which is subsequent to the main body of the Constitution.

Scalia, the alleged "originalist", cheerfully ignores the original intent of the framers whenever it suits his purposes. The original intent of the 2nd Amendment is right there in plain text. People just don't like what it says.

It's been barely 36 hours since a disagreement between employees turned into six dead people - only because somebody had a gun in his car.

That happened right here in Kentucky, where it's legal to carry concealed and one of my very own co-workers does so right in the office.

This isn't just an NRA fundraising issue, and it isn't a theoretical Constitutional argument.

This is about people who risk heart attacks from the stress of worrying all day long about what stray comment is going to set a seemingly sane coworker off.

A coworker with a perfectly legal handgun within reach.

Hunting rifles and shotguns are okay.

But the DC ban required that even those be kept unloaded and locked away. To actually use a gun in defense of your home, you'd basically have to be in constant defiance of the law.

It seems to me the ruling creates a new right: The Right of Self-Defense.

I'll grant that this is not explicitly in the Constitution, but do you not think that people have an implicit right to defend their life, liberty, and property? Or is self-defense a right that only the government can grant?

(Disclaimer: I am not a gun owner; I've fired a .22 rifle a few times at Boy Scout camp, and that's the limit of my experience with firearms. However, after two terms of Bush and far too many years of Republican-led Congress, I'm definitely thinking about it. Besides, as long as the police are allowed to use assault rifles and submachine guns for routine arrests, the real gun control problem in this country isn't the citizens. That said, I don't think civilians should have machine guns either, although I'd buy an MP-5 if it were legal.)

It seems to me the ruling creates a new right: The Right of Self-Defense.

Yeah, good thing we don't have activist judges inventing new precedents, because conservatives are dead-set against that sort of thing.

"P.S. Yes, I really think gun owners are that retarded."

Wow. Sometimes it is just embarrassing to be on the liberal side.

You just insulted several people that I hold in very high reguard. Who, I have no doubt, you could not hold an intellectual candle to.

.

"The wording of the Second Amendment suggests to me that the government can regulate guns a bit more than they can regulate, say, speech..."

Is this really true in practice? There are things you cannot say (fire/theater), and there are places you cannot take a handgun (a courtroom). What's the functional difference?

The "well regulated militia" clause is the dependent clause. It does not take precedence over the independent clause. Many laws of the time have a similar dependent clause that serves only as an explanation, not to modify the law. I doubt that any of the Founding Fathers would have agreed that one must be a member of an organized militia to own a gun.

I will further say that I would have expected this place to be more welcoming to such a significant victory for Civil Rights.

Nat: I'll grant that this is not explicitly in the Constitution, but do you not think that people have an implicit right to defend their life, liberty, and property? Or is self-defense a right that only the government can grant?

That's an entirely separate issue than whether or not the second amendment states this. As SecularAnimist quite accurately pointed out, the second amendment deals specifically with the communal defense of the state - NOT hunting, NOT self-defense.

Not only has Scalia broadened it to do so, but he's also completely arbitrarily defined what constitutes "arms" as well. It's blatant activism of the type that republicans cry and beat their chests to pretend to oppose.

Kevin, you also need to read, or re-read, The Federalist. Alexander Hamilton:

"The power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense."

Also, Minutemen kept powder, and many of their weapons, at armories similar to National Guard armories of today. That’s what started the Revolutionary War, for doorknob’s sake. The British were marching on Concord to seize the arsenal there, as well as to try to round up Patriot leaders.

And, speaking of that, Dan Minneapolis has the right originalist snark angle on this.

Brian, wrong. Go join Volokh if you really believe that interpretation.

I expect this decision to have zero effect on the number of deaths and injuries by gunfire. I feel that if the decision had gone the other way the effect would also be zero.

Americans' penchant for violence and guns is a cultural thing, not a legal or constitutional thing.

Scalia, the alleged "originalist", cheerfully ignores the original intent of the framers whenever it suits his purposes. The original intent of the 2nd Amendment is right there in plain text. People just don't like what it says. Posted by: zak822

The Constitution is not a sacred document nor is it the divine word of anyone's god. The thing is riddled with anachronisms and things that need to be changed. The 2nd Amendment is vague and needs to be thrown out, as does the 10th. The 14th Amendment needs to be rewritten, etc. It's not just a matter of picking and choosing. It began service in the the 18th century! The world has change just a bit since then. Letting a bunch of partisan assholes who really have no special talents tell us how to re-read the document every few years is ludicrous.

I've long felt two things: 1) that the 2nd amendment meant that individuals could carry arms and 2) that anyone since 1945 who felt that this was important was prima facie crazy and shouldn't be permitted to own them.

As Sen. Russell (I think) famously said, "States Rights is dead. The Feds have The Bomb."

Banning guns causes gun owners to want to defend their right to own them to the death. Denying the right to own guns seems to justify their use. The public should emphasize reducing gun violence through education and strict punishment for use in non-life threatening conflicts.

This is about people who risk heart attacks from the stress of worrying all day long about what stray comment is going to set a seemingly sane coworker off.

I'm not the only one who worries about this?

Other than law enforcement, no one needs a hand gun

Disarm the police. They do not need weapons of deadly force to do their jobs, and if deadly force is required it should be administered by a specialist.

Nat & DH Walker--Sorry for the short post. My use of caps was to suggest that the 2nd Amendment itself had now been turned into the "Self-Defense" Amendment. In other words, the majority read the 2nd Amendment and decided it was about self-defense rather than militias or arms. Yes, I do think that we have a right to self-defense, but I do not think that is what the 2nd Amendment is about.

Jeff II: It began service in the the 18th century! The world has change just a bit since then.

Exactly. People, I think, don't generally have a good handle on just how significantly the industrial revolution changed the western world. Just the population explosion alone is enough to overcome the founders' notion of a small citizenry coming together in time of crisis for mutual defense. To say nothing about not only firearm technology, but mass production and industrialization.

So, definitely, the second amendment is outdated for a few reasons. But even putting that aside, it still doesn't say what Scalia says it does. He's just sanctifying his personal opinions, plain and simple.

The "well regulated militia" clause is the dependent clause. It does not take precedence over the independent clause. Many laws of the time have a similar dependent clause that serves only as an explanation, not to modify the law. I doubt that any of the Founding Fathers would have agreed that one must be a member of an organized militia to own a gun.

Posted by: Brian

Actually the framers and writers of the constitution expound on the 2nd Amendment in the Federalist papers and express views stating the intent was to protect private ownership of guns. So run with your leftwing interpretation if you want but it is wrong and does no go along with the context of the time the amendment was written or the intent of the writers. I love it!

SG,

I'm quite correct. You may not like it and you may be bitter over it, but I am right. Go join Kos if you believe that moronic tripe that SA is peddling.

Yes, I do think that we have a right to self-defense, but I do not think that is what the 2nd Amendment is about.

Yeah, ok. This is exactly what I believe too. :)

Anthony Scalia is yet again legislating from the bench. It is pretty obvious that when the founding fathers referred to the “right to bear arms”, they specifically meant the right of free white men to own muzzle loading black powder weapons. Nino champions both the dead or living versions of the constitution, depending on which serves his interest at any given point.

I've always supported the right for sane, law abiding, tax paying citizens to own guns. IMHO, there is a line drawn in the sand. I think they should be licensed to the hilt, gun shows regulated, and firearm training a requirement. What I do not support is any type of private ownership of automatic weapons or people building home arsenals - which falls outside of my definition of "sane." (collectors of rare antiques excepted.)

That's an entirely separate issue than whether or not the second amendment states this.

Yes, but much of liberal jurisprudence on the Bill of Rights has focused on what we could call "implicit" rather than "explicit" rights. For instance, some conservatives still haven't stopped wailing about Kennedy finding a "right to sodomy" in the Constitution when he wrote the decision in Lawrence v. Texas. There is none, of course - but the civil libertarian position (which I share unreservedly) is that the constitutional limitations on government prevent it from criminalizing such activities.

That's not to equate firearms ownership with gay sex - among other things, I'm not worried about being struck down by random penises. But I'd argue (this is not an original idea, BTW) that there's a gaping inconsistency between a broad, liberty-oriented interpretation of the other amendments and a very restrictive, regulation-oriented view of the 2nd Amendment. The argument that certain types of guns were well outside anything the Constitution was meant to protect is compelling - but the claim that there is no individual right to own a gun doesn't seem consistent with civil libertarianism. (Carrying them in public is a much different issue.)

As far as the Founding Fathers are concerned, I've seen numerous quotes cherry-picked from the Federalist Papers, etc. by the other side that support their position equally well. The truth is that several of the most compelling original practical justifications for individual gun ownership are thoroughly obsolete in a nation that has a massive and unbelievably well-armed standing military. However, after reading the creative legal theories that the Bush administration has been spewing forth, I'm a little paranoid about any attempt to take away limitations on state power because we think the Constitution is obsolete. I'm not a big fan of rewrites, either, because there are a lot of crazy people waiting in the wings with grand ideas about how to unconstrain the awesome power of the federal government. Until the ACLU stops being a conservative scare word, I'm pretty certain that any rewrite would be a net loss for the individual rights. (And just to be fair and bipartisan, I'll admit that I've also come across far too many leftists who are actively hostile to the concept of personal autonomy. The level of latent authoritarianism in this country, across the political spectrum, often frightens me.)

I think the next justice to the supreme court needs to be someone capable of greatly annoying the four horsemen for the rest of their tenure.

Jeff II wrote: The Constitution used to prevent wiman, negros and injuns from votin', too.

Actually, the US constitution never prohibited any adult citizen from voting. Any other restriction on who could vote (based on race, sex, property ownership, non-felon status, etc.) was only imposed by state governments, not the US constitution, and there was plenty of variation in state laws.

For example, some states never restricted voting to whites only. Likewise, a number of states allowed women to vote long before the 19th amendment required all to do so.

Actually the framers and writers of the constitution expound on the 2nd Amendment in the Federalist papers and express views stating the intent was to protect private ownership of guns.

Have you actually read the Federalist Papers, or do you just let Wayne LaPierre tell you what they say?

As it happens, I work in Washington DC, and I consider this ruling to be a direct assault on my personal safety by the corrupt, partisan Republican hacks on the Supreme Court who have consistently ruled in favor of corporate power and profits over human life.

Brian, saying you're right doesn't actually mean you're right.

What I do not support is any type of private ownership of automatic weapons

Which is already illegal, and you'll have a hard time finding many gun-rights supporters who are interested in fighting this. I saw a quote the other day, perhaps from Obama, about how the citizens don't need MAC-10s to defend themselves. True enough, but the MAC-10 has never been legal in my lifetime anyway! But we arm the police to compensate for illegal machine gun ownership, leaving everyone else at the mercy of automatic weapons fire. I don't have a good solution for this, this is just a reminder that gun control isn't a cure-all.

On the other hand, I feel moderately safer knowing that the number of people capable of mowing down large crowds is kept to a minimum. (And fortunately, the MAC-10 owners are probably more interested in protecting their drug stash than they are in blowing away a classrom.)

For men who were great writers, the 2nd Amendment is rather ambiguous; but nobody who has looked even casually at the intent and writings of the framers really doubts that at the time 'militia' was used to refer to the general population, which could be roused to defend the nation against foreign enemies or our government if necessary.

Similarly the true intent of the 14th amendment was never to grant citizenship to jackpot babies and reward border sneaks despite the literal wording, The authors of the 14th could not have imagined the depth of corruption in Washington that is bringing in all the illegals.

Nat:

I don't have a lot to add to your very thoughtful post (1:32) - I agree with the bulk of what you say. I will say that I believe that personal defense and safety are more the domain of the fourth amendment than the second, which has to do more with defense of the state. Yes, it refers to individuals being armed - but individuals are/were expected to participate in such a defense (and do so without having the logistical challenges of assembly at a battery, etc). In other words, I think that the distinction between "collective" and "individual" here is a modern false dichotomy the same way the cold-blooded/warm-blooded debate over dinosaurs used to be.

The fourth amendment, on the other hand, makes no mention one way or the other about arms. I'd argue that for your implicit-rights argument to hold up, it would have to. I don't believe it's implicit in the second amendment, and (as I think we both agree), it sure isn't explicit.

Just my two cents.

SG,

But you're saying that I'm wrong actually means that I'm wrong, right? Tell it to Scalia.

WTF Gadfly, he was just responding to your post where the only argument you made was to tell him he was wrong. Can we raise the level of discourse here just a tad?

Right -- the first phrase of the 2nd Amendment, which clearly addresses the need for a "well-organized militia" as "essential to the security of a free state", was just thrown in there for no reason at all and means nothing.

I gotta agree with SA on this one. What part of "well-regulated militia" do you not understand or care to ignore? Sounds like judicial activism to me.

I honestly don't mind this ruling. I have been a liberal my entire life, but gun control has always been something that has left a bad taste in my mouth, probably because I grew up around guns. I am also not crazy about gun control because I have never seen really compelling, straight forward evidence that gun control laws do any good whatsoever to dampen crime. We are a violent country. We will kill people in our streets regardless of gun control laws. If we really want to reduce crime, we need to focus on poverty and injustice, not whether or not Jonny Redneck can compensate for his diminution by carrying a piece in Lafayette Park.

I doubt that any of the Founding Fathers would have agreed that one must be a member of an organized militia to own a gun.

Thank GOD we have Brian to tell us what the Founding Fathers intended. I feel better.

Nat,

You must not be very old, federal law does allow ownership of a MAC-10, it just has to be a registered weapon, sold through a Class 3 dealer and subject to a rigid check by law enforcement.

The real cost is the price of such a weapon which is in the thousands of dollars (plus a $200 transfer tax) and the cost of shooting the darn thing.

More recent federal law made it illegal to buy a recently manufactured automatic weapon (1986, I think so if you are 18 or younger ...) but the older registered weapons are for sale subject to state law.

Tell it to Scalia.

Well, if a well-known fascist thug agrees with you, well hell, that settles it.

Drum-

Please read the decision. Even the majority does not argue that "a right is a right." And even Scalia recognizes that there many exceptions and caveats, and have been since the 19th century. Heck, even his arguments for where to draw the line (handguns, yes; handgrenades, no) are somewhat reasonable, apart from their blinding refusal to acknowledge that this decision will result in hundreds more deaths, and almost no additional prevented crimes.

On the MAC 10 -

Look, either the idea behind the 2nd amendment is that the general public should be able to take on invading army, or there is no right to bear arms.

How do you read the second amendment and say that people have a right to hand guns, but not to an M-16? How in God's name does that make any damn sense whatsoever?

I think the argument is, "Well, of course the founders didn't intend ... " or "That would be ridiculously dangerous."

Just change the amendment already. It doesn't make any sense to anybody, which is why we are always fighting about it.

The NRA might be the new March of Dimes. A successful organization in search of a mission. Maybe the can become gun safety advocates or maybe they can sponsor shooting events. You know, the stuff they used to do.

Fat White guy wrote: Actually the framers and writers of the constitution expound on the 2nd Amendment in the Federalist papers and express views stating the intent was to protect private ownership of guns.

Fascinating! Cite, please? Thanks in advance.

OK with me. Just remember, we don't have guns just so we can defend ourselves from the government if necessary, but against the aristocracy if necessary (increasingly the same anyway.)

So...being a Brit, I thought I'd leave this one alone - if Americans want to shoot each other, that's fine. Personally I wish you wouldn't but it doesn't affect me in the slightest so knock yourselves out. However this got me:

"I am also not crazy about gun control because I have never seen really compelling, straight forward evidence that gun control laws do any good whatsoever to dampen crime"

Wrong, I'm afraid. Just cold, dead wrong. Last time I looked, South Africa was the only Western(ish) country with a worse record on gun crime. We've had a horrendous upsurge in the UK and we're still short of deaths in LA alone per year.

By all means fight for your rights if that's what you believe them to be, but please don't ignore the truckloads of plain and simple stats which say that it's going to make life more dangerous.

The wording of the Second Amendment suggests to me that the government can regulate guns a bit more than they can regulate, say, speech,

What wording is this?

Yes the Second Amendment states:

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.

However, the First Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

If you think that the Second Amendment applies only to militias, then you are obliged also to assert that the First Amendment applies only to Congressional legislation. Yes, the First Amendment has been flexibly extended to the states; but this obliges you to extend the same flexibility to the Second Amendment. You can't have it both ways.

Let me speak plainly, while one of course may, for policy reasons, favor free speech and religion freedom over the right to bear arms, it is nevertheless doubletalk to play free and easy with Constitutional language to achieve results you like while parsing other language to avoid those you dislike.

It is precisely such sort of liberal doubletalk that provides an opening for conservative doubletalk in response: signing statements, John Yoo and the rest. BS engenders more BS.

And much of the problems that we are now experiencing with Bush / Cheney have been made possible because liberals, through a generation of PC malarkey with the judicial process; have discredited the system to protect the freedoms that we do need.

Fat White Guy writes: Actually the framers and writers of the constitution expound on the 2nd Amendment in the Federalist papers and express views stating the intent was to protect private ownership of guns.

Like Gregory, I'd be interested in seeing that citation from the Federalist Papers ... because it seems to be missing from my copy. In no. 29 there is some discussion of whether and to what extent the federal government could and should try to "discipline" and "regulate" states' militias. That's the closest anything comes to your claim, and it's not very close.

Yes, the First Amendment has been flexibly extended to the states

No it hasn't. It's applicable to the states via the Fourteenth Amendment. Plus, most state constitutions have their own versions of the first amendment rights. Look at Scalia's majority opinion if you don't believe me.

Say what you will, but Scalia's analysis of the historical nature of the right to bear arms is exhaustive. He's got a number of sources pre-revolution, revolutionary-era, pre-civil war, post-civil war, and early 1900s, plus a pretty thorough dismantling of Stevens' and Breyer's arguments; this was a decision on the offensive against the dissents. The historical record's clear, and if you hold otherwise, you either haven't read his decision and analysis, or are convinced otherwise despite the evidence.

He also analyzes Miller in detail, and reveals it for what it is - a technical case on whether one type of firearm or other was permissible, with the collective-rights interpretation commonly ascribed to it found nowhere in the actual decision. In other words, Miller didn't actually say anything about the individual vs. collective rights perspective, nor was it in any way related to the issue except that it was the last gun case the Court had taken in the century (and, as Scalia points out, one that wasn't even argued before it!)

All that said, the actual conclusions involved were about as narrow as you could possibly ask for. The DC gun "ban" wasn't overturned - it's just that DC has been ordered to issue a permit (and, by extension, permits to other people who aren't obviously disqualified by mental retardation or criminal records). Reasonable regulation of the right to keep and bear arms is still okay; it's merely not okay to extend a reasonable regulation such that there is no longer the right to keep and bear arms. Machine guns are still regulated. Gun licensing is still permitted, so long as those licenses are actually issued. Restrictions on concealed-carry or open-carry are still all right.

What more do you want? The right to keep and bear arms is, in fact, a right to keep and bear arms. If you think that the world has changed sufficiently that such a right is a danger and ought to be repealed, you're welcome to push for the relevant Constitutional amendment. Good luck with that. ;p

"...please don't ignore the truckloads of plain and simple stats which say that it's going to make life more dangerous."

You're right, Ally. But, you know, those stats are so over, and individuals should be free to be as much a danger to themselves and others as they want to be. We recently had an op-ed in the Boston Globe arguing that people be allowed to carry weapons openly -- strap on a holster and show off that handgun; let everyone know you're packin' and not just some sissy who can be messed with by whomever happens by. This wasn't a joke; as far as anyone could tell, the guy was serious. Handguns may be OK with Kevin, but personally, I'm not thrilled at the thought of sharing the sidewalks with a bunch of armed, paranoid tough-guy wannabes. I guess we'll be stuck with the situation now that the Supremes have spoken. But isn't it fair for rest of us to demand some sort of sensible federal licensing and regulatory structure to ensure that all these armed and principled individuals know how to handle those weapons they love so very much?

Avatar - You say that "it's not okay to extend a reasonable regulation such that there is no longer the right to keep and bear arms," but then say (approvingly, I assume) that machine guns are still regulated.

This is what I don't get about the whole thing. I'm not trying to make the slippery slope argument that since handguns can't be banned neither can any other type of "arms." But if restrictions (and bans) can be placed on entire categories of firearms (like machine guns), why can't handguns be included as one of those restricted or banned categories? Unless I'm mistaken, rifle ownership was still allowed in DC, so it wasn't the case that "the right to bear arms" had entirely been taken away by the handgun ban.

There doesn't seem to be any argument about the fact that some types of guns are too dangerous to allow people to own, and handguns are obviously a lot more dangerous to the citizens of DC than they are to the citizens of, say, Wyoming.

J From my one post above:

The Federalist No. 29. Alexander Hamilton:

"The power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense."

Hamilton, at least, clearly thought and said the well-regulated part took precedence.

Joe, read what CKelly said to Brian. How's that for "raising the discourse"? Geez, yourself. You're fine to follow Brian's suggestion and tell it to Nino..

Say what you will, but Scalia's analysis of the historical nature of the right to bear arms is exhaustive.

You mean all those citations to Eighteenth Century dictionaries for their definitions of "keep," "bear" and "arms"? Or the one single pre-1791 legal case he cites to -- from England? Color me convinced.

Fascinating! Cite, please? Thanks in advance.

Posted by: Gregory

"The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation ... (where) the governments are afraid to trust the people with arms."
-James Madison, Federalist Paper No. 46.

"If the representatives of the people betray their constituents, there is no recourse left but in the exertion of that original right of self-defense which is paramount to all forms of positive government."
-Alexander Hamilton, Federalist Paper No. 28.

"No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government."
-Thomas Jefferson, Proposed Virginia Constitution, 1776, Jefferson Papers 344

"The constitution of the United States asserts that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed and that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of press."
-Thomas Jefferson

"The great object is that every man be armed. Everyone who is able might have a gun."
-Patrick Henry

"Oppressors can tyrannize only when they achieve a standing army, an enslaved press, and a disarmed populace."
-James Madison

"The best we can hope for concerning the people at large is that they be properly armed."
-Alexander Hamilton, The Federalist Papers at 184-8.

"A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government."
-George Washington

The Federalist Papers and other writings of the founding fathers support the individual right to bear arms. I am not a scholar or expert on these things and have only read part of them. They are pretty lengthy and address much more than just the 2nd Amendment giving insight into the intent of the framers of the constitution. So they are pretty good rainy day reading.

Interesting list FWG. Meanwhile, they were banning dueling...not fast enough for Hamilton though.

liberal doubletalk

The freedoms of expression and religion do not cause the kind of violence and killing the freedom to bear arms does. Legislatures and city councils are trying to prevent the taking of life when they create limitations on gun ownership.

No it hasn't. It's applicable to the states via the Fourteenth Amendment. Plus, most state constitutions have their own versions of the first amendment rights. Look at Scalia's majority opinion if you don't believe me.

Yeah and blah, blah, blah, blah. Penumbras and e pluribus unum.

Say hi to John Yoo on the way out.

Well done, FWG. Thanks for going to the effort to list those. I'm the most liberal person I know, except when it comes to affirmative action and gun rights. The most important reason for gun ownership, and given the civil rights abuses of Bush in the past 7 years I would think you'd all be on board with this, is as a hedge against dictatorship. However, there is a strong need for gun control, common sense measures that for some reason, no matter how common sense, the NRA is against. But they can't just outright ban all handguns. I'm amazed the law was unchallenged for 32 years!

Fat White Guy wrote: I am not a scholar or expert on these things

You don't say.

Let's take your first example, which you cut-and-pasted as: The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation ... (where) the governments are afraid to trust the people with arms

This exact text does not, of course, appear in Federalist 46. What you do have is a discourse on -- yes -- a militia as a check on a standing army!

Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.

Note that while this passage presupposes the milita being armed, it does not address arms as posessed by private citizens.

Your second quote cites a right of self-defense, not individual ownership of arms.

Your third, fourth, fifth, sixth and eight aren't cited as from the Federalist Papers at all. The third, once again, is as easily cited as in support of an armed militia as private ownership of arms.

FAIL.

Of course, while the Founders would be aghast, 20th -- let alone 21st -- Century technology ensures that, unlike the 18th Century -- standing armies have access to military weaponry -- tanks, jets, missiles, ships, aircraft carriers, nuclear weapons, etc. etc. -- far in excess of what private citizens could field. Thus the militia-as-check-on-standing-army issue is moot anyway. We must remember to be grateful for the professionalism of the American military and damn the Republicans for their ongoing efforts to subvert it.

It's long been clear that Fat White Guy reads righty blogs and is stupid enough to believe what he reads there. It's long been clear that Fat White guy is lacking in the critical-thinking department. It's now clear that Fat White Guy is also stupid enough to cut and paste inaccurate quotes taken out of context no doubt from a typically deluded and dishonest righty blog without stopping to consider whether they back up his claims. Fat White Guy's faith in the right-wing propaganda machine lets him down yet again. I love it!

We ban them from places.

We restrict how you can carry them.

The Supreme court handed down a ruling that was both confusing and unrelated to the text - they said you can't ban them from people's homes, but also that you couldn't require they be kept in a safe mode.

So anywhere people /live/ now has to allow guns to be there. This ruling also opens up 'why won't you let me carry it x' arguments which the lower courts will ignore and the supreme court will pretend like they've ruled.

And it'll lead to more deaths. Mostly children. Way more unarmed, innocent people will die than those attempting crimes.

Well done, FWG. Thanks for going to the effort to list those.

It certainly does appear that even cutting and pasting must have taxed Fat White Guy's mental abilities.

Speaking of critical thinking, Joe, you might have smelled a rat when FWG failed to provide a link, let alone to a primary source. As I pointed out, his very first "quote" is inaccurate, not to mention that it doesn't support the position FWG claims it does. And the Patrick Henry quote, for example ("The great object is that every man be armed. Everyone who is able might have a gun"), is so far out of context that it could just as easily be expressing the ideal condition of the Continental Army -- especially considering its early supply difficulties.

When will you rightards learn that the postings on right wing blogs are bullshit? I love it!

...standing armies have access to military weaponry -- tanks, jets, missiles, ships, aircraft carriers, nuclear weapons, etc. etc. - far in excess of what private citizens could field.

Patience, patience, give us time.

Avatar has it pretty well nailed.

For those who haven't read the actual decision, here it can be read. Scalia's opinion is utterly exhaustive in regards to the language and the history of the amendment itself. Stevens's dissent is weak when discussing the language of the amendment, and Scalia pulls no punches in eviscerating the dissent on both the language and the history of the 2nd Amendment.

If you don't like the fact that Americans have a right to keep and bear firearms, you will have to amend the constitution.

Joe wrote: "The most important reason for gun ownership, and given the civil rights abuses of Bush in the past 7 years I would think you'd all be on board with this, is as a hedge against dictatorship."

Yeah -- ask David Koresh, the Symbionese Liberation Army and the Black Panthers how that worked out.

Shorter Yancey Ward: My loony libertarian proclivities demand that I prefer Scalia's interpretation.

Well, duh, Yancey.

"Note that while this passage presupposes the milita being armed, it does not address arms as posessed by private citizens."

I'm sorry; maybe I missed something. Is not the militia, as defined by Federal law and the writings of the Founders, composed of private citizens not already in some form of government service?

"Of course, while the Founders would be aghast, 20th -- let alone 21st -- Century technology ensures that, unlike the 18th Century -- standing armies have access to military weaponry -- tanks, jets, missiles, ships, aircraft carriers, nuclear weapons, etc. etc. -- far in excess of what private citizens could field. Thus the militia-as-check-on-standing-army issue is moot anyway."

Leaving aside the myriad historical examples of people with small arms causing no end of grief to a much-better-equipped and -trained professional military (and often achieving their political goals in spite of rarely winning on the battlefield), your argument assumes that the *crews* of those "tanks, jets, missiles, ships, aircraft carriers, nuclear weapons" - American citizens all - would use that advanced technology on their fellow citizens. *Some* would, no doubt, but the small amount of research the military has done indicates that disobedience of orders to fire on other Americans would be common, if not widespread.

I am not convinced the armed-citizenry-as-check-on-tyranny is moot at all.

If an oppressive or illegitimate goverment tries to force its' will on the people and the military won't intervene, then it's just us folks against cops (or maybe Blackwater). There are a whole lot more of us citizens than there are of them and they aren't that heavily armed. That's starting to look like a farier fight.

Don't forget Ruby Ridge.

...standing armies have access to military weaponry -- tanks, jets, missiles, ships, aircraft carriers, nuclear weapons, etc. etc. - far in excess of what private citizens could field.

It may be very difficult to disarm the populace, but there is no constitutional reason the military could not be elminated.

SA, those were fringe groups who did not have the backing of a large minority, much less a majority of the country, and for obvious reasons. I'm speaking of a popular uprising against a tyrannical government.

Relax, Crissa.

Deaths of children (under 14) by firearm are lower now than they have been since since the gov't starting tracking those numbers in the early 70's - at a time when the number of firearms in private hands has steadily increased. (+/- 200 million in 1990, +/- 300 million now).

Violent crime also declined steadily from 1990 until very recently. Even now, we're seeing a lower level of violent crime than any time since 1965.

If the sheer number of firearms in private hands were the driving factor behind violence and crime, things would be much worse than they are.

I should have said "about 1990"; not all categories of violent crime peaked at the same time. However, by 1991, all major categories of violent crime were in decline.

No, Gregory- logic demands that I accept Scalia's argument over that of the dissenters and the petitioners.

The dissent repeatedly has to resort to tortured interpretations of the words and the phrases of the 2nd amendment (plus that of other amendments like the 1st) in order to reach the conclusion that the right is a collective one. Scalia annihilates each of these attempts with clear citations to the language used at that time. In addition, Scalia puts the amendment into its proper historical context, again exhaustively citing the contemperaneous literature.

Even if I thought guns were a great evil that had to be eliminated from the face of the earth, I would be embarrassed to associate my name with the dissent in this case. I don't think even Stevens believes his own argument, but was forced to offer it in an attempt to save the handgun ban in this case.

I'm sorry; maybe I missed something. Is not the militia, as defined by Federal law and the writings of the Founders, composed of private citizens not already in some form of government service?

Sure, but since when does it have to follow that these citizens keep their weapons when not in the militia? Ever hear of an armory? Militia are formed of private citizens, but that doesn't mean the citizens must necessarily retain their weapons all the time.

By an astonishing coincidence, the National Guard works on this very model.

Speaking of militia, it's interesting to note that, while citizen militia did occasionally perform heroically in the 18th century, they were often poor supplements to regular army troops -- ill-equipped and ill-disciplined. (Not that the quality of army troops were necessarily much better, mind.) The militia's primary function, it seems, was to run away. St. Clair's defeat on the Wabash is a good example.

your argument assumes that the *crews* of those "tanks, jets, missiles, ships, aircraft carriers, nuclear weapons" - American citizens all - would use that advanced technology on their fellow citizens.

I'll see your supposition and raise you one concrete example. The Ohio National Guard didn't exactly prove reluctant to open fire on their fellow citizens -- unarmed, yet! -- at Kent State. Now go ahead and pretend that the US military would stand down in the face of what their commanders call a "terrorist threat."

If an oppressive or illegitimate goverment tries to force its' will on the people and the military won't intervene, then it's just us folks against cops (or maybe Blackwater).

You prove my point -- the key factor is not citizens being better armed than the military, but the professionalism of the military itself. (Which professionalism, again, is being undermined by Republican policy.)

Of course, if an oppressive or illegitimate goverment tries to force its' will on the people and the military does take it side, then the point that it's much better armed then the populace stands. Sorry, your romanticism is touching, but that's a mighty big wishing-away you're doing in order to pretend civilians with deer rifles but lacking military training can truly turn the tide against an oppressive government.

No, Gregory- logic demands that I accept Scalia's argument over that of the dissenters and the petitioners.

Of course it does, Yancey. You're quite the rugged individualist after all!

Shorter Gregory: "Blah, blah, blah, blah, blah. I love it!"

Even if I thought guns were a great evil that had to be eliminated from the face of the earth, I would be embarrassed to associate my name with the dissent in this case.

Oh, come on, now, Yancey, you can't expect us to believe that -- you don't appear embarrassed to associate your name with the unconvincing assertions in this thread and others, after all.

BS wrote: Shorter Gregory: "Blah, blah, blah, blah, blah. I love it!"

What can I say -- demonstrating that FWG's cut-and-paste bullshit didn't prove what he thought it did, and pointing out that Yancey Ward's assertions don't exactly carry a lot of weight, can hardly stand up to such a riposte.

Someone obviously has a panties in a twist at the reminder that a narrow 5-4 interpretation of an ambiguous phrase isn't the victory for loony libertarianism it might appear. I love it!

Gin, that guy was most certainly serious. Open carry has been and still is legal in much of the U.S. On the frontier, carrying a weapon concealed rather than openly was considered the mark of a coward.

"A Right Unexercised is a Right Lost"
http://opencarry.org/

Sorry. I left out a "blah."

Sorry. I left out a "blah."

Oh, why didn't you say so, BS? You're right -- Yancey Ward's ruggedly individualistic assertion that Scalia's opinion convinced him of a position he agreed with to begin with truly is convincing.

People who actually live and work in Washington, D.C. might have a different opinion about this. I don't count the SC justices, who live on some remote, transhuman plane.

I don't get it though. If, as per the dissent, handguns are banned because they have no military use in a militia, why does every F-ing army in the world issue side-arms.

For those who suggest that the militia need not bring their own weapons, a quick look at the Militia Act of 1792 might help.

The Swiss militia keep automatic weapons in their houses (SIG 550). And every male is force conscripted at 18 (women may volunteer). There is forced shooting practice every year till the age of 30. Fail to make the grade and you have to pay for more ammo, and do more service.

If the militia have to keep their basic weapons in an armory, that will be where the opposing troops go first. And they're armed from the get go. Good luck making it to your rifle. Either change the amendment to ban private ownership, or admit that the practicalities are that unarmed militia are termed "rioters".

Alan Thomlinson...gun owners are retarded? Coming from a man who apparently cannot read the plain English of the Constitution, this is a stunning accusation...or maybe not. Obviously, you don't believe that. You just hate losing. And you lost this one big time. You and ever other gun-grabber might as well get used to sucking it for a while. Justice Breyer was probably right: This is just the first of many dominoes to fall.

Here's me loving this new Supreme Court!

I work in Washington DC, and I consider this ruling to be a direct assault on my personal safety

Did the Supreme Court give you the right to defend yourself from the Supreme Court?

I predict that when all the immediate hoopla is over, almost nothing will have changed, either for better or for worse. Most gun regulation short of the near-total disarmament embodied in the D.C. law will be upheld if challenged.
FWIW, I'd be cool with an actual, revived, well-regulated militia, where most people have to train, maintain a sweapon, and demonstrate proficiency. I've always thought it politically dangerous that the ability to engage in organized violence, shoot people in a disciplined manner, and blow shit up is seriously skewed in a right-ward direction. A real militia might cure the imbalance.

The introductory clause of the Second Amendment was completely ignored by Scalia in reaching his judicial opinion. The Founders did not use words frivolously. If they meant the 2nd Amendment to apply to people individually, they would have written, "A well-armed populace, being necessary to the security of a free state..."

Now that we are back to the law of the Wild Wild West, I have a question for you gun goons out there -

Does this decision give Bill Gates the right to "bear" nuclear arms? He can surely afford them. If not, why not???

Conservative Deflator,

No, Scalia did not ignore the opening clause, but he properly analyzed the operative clause first.

Gregory,

It is great entertainment watching you spin and blather in mindless anger. I am laughing my ass off at your expense.

Haven't read all posts, so someone may have already said this, but, there is certain truth in the statement that if you outlaw guns, only outlaws will have them.

HOWEVER, there simply MUST be severe limitations on ownership. Better regulation (i.e., extending waiting periods and purchase limits). Stiffer penalties for illegal possession and use in crimes. Stronger investigation and policing laws. Etc. Etc. Etc.

No one seems to recognize the plainest fact (which I learned in the margin of the old MAD magazine, but which rang so true as to be unquestionable)."Guns don't kill people, BULLETS kill people." A gun without ammunition is nothing but a club (or a really expensive paperweight). I can fashion a perfectly effective weapon from two lengths of interfitting pipe and a shotgun shell (which any fifteen-year-old can go into Wal-Mart and buy for me). We have the technology to make ammo more difficult to come by, as well as being easier to trace. Gun laws and bans have done precisely SHIT to the violent crime rate.

End of story.

Goodnight.

Let it also be noted that in the dissent Stevens and his clerks commmit simple factual errors that a 1st year law student should be able to avoid. It is an embarassment. Hell, couldn't any of the justices (or their clerks) who signed on to Stevens' dissent have noticed these mistakes? Sheesh, what hackwork.

loony libertarianism

This sort of dismissal is no different from the smears I read on conservative blogs every time the issues of "enemy combatants", torture, and government surveillance are raised. As far as the Bush apologists are concerned, only someone completely detached from reality - or someone so thoroughly warped by ideology that they purposefully adopt an amoral position that puts the entire country at risk - could oppose giving the president free reign to deal with our enemies. All sane Americans understand that we can rely on the government to protect us, and our childish infatuation with made-up "rights" only prevents us from living in peace.

I dunno about Yancey, but personally, I'm quite happy calling myself a "loony libertarian." I realize it sounds like I'm equating gun control advocates with murderous right-wing authoritarians, but that's really not my intention - especially since I don't have any major objections to regulating gun ownership (although the DC ban was atrocious, IMHO). I just think that the intellectual content of the arguments made by both groups is disturbingly low. And the contempt both hold for anyone who disagrees with them, however civilly, is depressing. And frankly, it really makes me want to stock up on ammo.

You must not be very old, federal law does allow ownership of a MAC-10, it just has to be a registered weapon, sold through a Class 3 dealer and subject to a rigid check by law enforcement.

Which, along with the ban on the sale of new(er) automatic weapons, makes it virtually impossible for a private citizen to purchase one, especially since this is all at the whim of the government anyway. More importantly, I'm pretty confident that very few of the MAC-10s (and similar) in private hands were acquired legally, if only because it's a complete piece of junk useful only for drive-by shootings where you don't really care what you hit. For all-purpose defense of life, liberty, and property, an assault rifle seems like the best pick. (Too bad they're illegal where I live. Or maybe it's a good thing, but I'd still like an AR-15.)

It is great entertainment watching you spin and blather in mindless anger.

It's great entertainment seeing you once again dishonestly misrepresenting your betters' critiques of you and a central tenet of your loony libertarian faith, Yancey. Who's angry? I'm delighted at your tacit admission that you don't have a good faith response to my posts.

I am laughing my ass off at your expense.

Only fair, I suppose, since I've been doing the same from the beginning. And after all, it is ridiculous to point out that you assert Scalia's opinion convinced you of a position you agreed in all along.

Oh, wait -- no, sorry, it's ridiculous to pretend that such an assertion is a credible argument. And even more ridiculous to claim to be laughing at someone whose posts you haven't come close to rebutting. I guess it's all you've got to salve your wounded -- but ruggedly individualist! -- little ego, Yancey, but haven't jokers like you learned from Iraq? Declarations of victory don't disguise the sight of smoking ruin.

I'm perfectly happy to let your comments, and Fat White Guy's foolish cut-and-pasting, and mine, stand and let the readers judge who's doing the spinning and the blathering and making an ass of himself.

Speaking of which, irony alert: Will Allen complains about embarrassing factual errors and hackwork. Always an entertainer, you are, Will.

Gregory - I was intrigued by your post, and looked at Federalist 46...having read it, I note that you seem to have been unfair to fwg as the phrase "...the governments are afraid to trust the people with arms" (in reference to "military establishments in the several kingdoms of Europe") actually does appear just a little ways down from where you ended your excerpt.

As I read it, Madison is in fact clearly refering to individual ownership of arms in this paper, so its not sporting to beat fwg over the head about this...

Gregory - I was intrigued by your post, and looked at Federalist 46...having read it, I note that you seem to have been unfair to fwg as the phrase "...the governments are afraid to trust the people with arms" (in reference to "military establishments in the several kingdoms of Europe") actually does appear just a little ways down from where you ended your excerpt.

As I read it, Madison is in fact clearly refering to individual ownership of arms in this paper, so its not sporting to beat fwg over the head about this...

IMHO. after reading both sides of the opinion, is the majority had the facts right but their logic was faulty. The dissenters had the facts wrong but were logically consistent. This off-the-wall ruling will haunt us for a long while, I wish they had taken more time to get their ducks in a row.

I live in St Louis. Several years ago, right to carry concealed weapons was put to a vote. In the city of St Louis, where violent crime is a huge issue, where people deal with the problem of people being killed by guns all the time, it was voted down by 90%. 90%. In the outstate, rural areas, where violent crime with guns is rare, it was passed by 75%. Suburban areas also voted it down. The area I live in, voted it down by 75%. The measure failed.

This wasn't good enough for the rural/Republican crowd. Right to carry concealed was brought up in the legislature and was passed into law. Our state representative, who was the majority leader, cast the deciding vote. Typical Republican, his constituency convincingly expressed their desire, yet he supported the party over his people. Your Republican democracy at work.

In Missouri, we already had the right to carry weapons, with a permit; not good enough for the gun freaks.

Realistically, this issue doesn't make much difference, outside of the cities, their isn't enough crime for it to make a difference and in the cities, people who want guns will get them, regardless of the law. There doesn't appear to be a lot of passion shootings from all the new guns on the streets, which was my concern. Of course, there may have been a significant increase in shootings that the "liberal" newspapers didn't seem important to report on. Never seen any stats either way, but I haven't looked.

The lesson here is that the people who live with gun crime all the time