Supreme Court has voted to overturn abortion rights, draft opinion shows

[Admiral Yi]

I don't think anyone who doesn't start from the conclusion that guns are swell and everyone should be allowed to have them can, or will, take that leap just by reading the text itself.

I disagree, as that describes me.  No leap is required, just a reading of simple English.

[Berkut]

I don't think anyone who doesn't start from the conclusion that guns are swell and everyone should be allowed to have them can, or will, take that leap just by reading the text itself.

I disagree, as that describes me.  No leap is required, just a reading of simple English.

I thought you said it was puzzling?

Now it is "simple English".

But you make no leap at all, of course. You go from "that is puzzling" to "simple English" with no need for any steps in between at all.

Partisan hackery, all the way down.

[Admiral Yi]

That must be it.

[The Brain]

In other legal texts of the period, is "the people" always the same thing as "the individual citizen"?

[Syt]

In other legal texts of the period, is "the people" always the same thing as "the individual citizen"?

You mean whether or not it includes the non-voting population at the time (i.e. slaves, women etc.)?

I would expect that slaves were not included in the Right to Bear Arms.

[The Brain]

In other legal texts of the period, is "the people" always the same thing as "the individual citizen"?

You mean whether or not it includes the non-voting population at the time (i.e. slaves, women etc.)?

I would expect that slaves were not included in the Right to Bear Arms.

No, I mean if the amendment is about individuals or about collective action.

[bogh]

Yeah, I've always had found it baffling that it's read as an individual right. As an outsider, that's the confusing thing to me.

[The Larch]

To me the it's quite puzzling how the part of the amendment that refers to a "well regulated militia" gets basically ignored, turning a right meant for a collective purpose (the militia part) into an individual one.

I've read in some places regarding gun control debates how ironic it is that in most places gun control is much more lax nowadays than in the wild west times, when it was not unusual at all to have sheriffs actually enforcing gun bans in towns and cities.

Just when did this second amendment means zero gun laws allowed stuff begin to emerge?
It was in the second half of the 20th century right?

IIRC it started out in the 70s, mostly with a notable change of attitude at the NRA. Prior to the 70s it was, AFAIK, a non-partisan group that didn't really get into gun control issues and focused more on hunters, sports shooting and so on. In fact if you see some quotes from former NRA leaders from the first half of the XXth century you could be quite surprised about their attitudes regarding gun control. For instance, this is from their president back in 1934, Karl Frederick: "I have never believed in the general practice of carrying weapons. I seldom carry one. [...] I do not believe in the general promiscuous toting of guns. I think it should be sharply restricted and only under licenses."

A leadership change in 1977 cemented this turn to focus on political lobying and alignment with the Republican party and later went into overdrive after the 90s, when the current leadership of Wayne LaPierre took control of the organisation.

[Berkut]

Yeah, the NRA was never about gun control and politics for most of its history.

Gun control is like abortion. A wedge issue that has worked to create a stronger tribe of ultra partisan populist reactionaries that has been carefully groomed to secure power for a minority.

[The Minsky Moment]

Is there any contemporaneous commentary on the well regulated militia preamble?

I've always had a problem with the interpretation "only for the purpose of use by a well regulated militia" because there are many ways to make that clear if it is in your intention, the drafters understood written English, and as a question of basic syntax the actual text doesn't support it.

But look at it the other way.  If the intent was simply to announce an unconstrained individual right to possess and carry firearms, why insert the preamble?  No other significant right in the bill of rights is phrased that way.  The First Amendment says "Congress shall make no law "  The fourth says the right to secure against unreasonable searches "shall not be violated."

A core canon of textualism is that all words in a legal text are significant and must be given real meaning if possible. So a consistent textualist must give meaning and function to the preamble and can't read the amendment as if those words didn't exist.

Another consideration to keep in mind is that even those rights that are written in absolute terms are not given absolute effect.  For example - the first amendment as written is absolute: "Congress shall make no law . . . abridging the freedom of speech."  Taken literally it would mean that Congress (and the states via the 14th amendment) couldn't outlaw conversations between competitors to fix prices, or regulate false advertising, or prosecute mob bosses for ordering a hit on a rival etc.  In reality, there are lots of things that government does that violates a literal reading of the First Amendment.

Speech rights aren't and never been absolute, despite what the text says.  The Court applies "means-ends" scrutiny.  They first look at the type and nature of the speech regulation and apply a level of scrutiny - which determines the level of state interest required to overcome the presumption against regulation.  E.g. Strict scrutiny requires a compelling state interest to overcome.  "Rational basis" scrutiny just requires a rational basis for the reg. Then they compare the nature of the government interest to the level of scrutiny. 

What is truly extraordinary about Thomas' gun opinion is not just that he reaffirms the Second Amendment as conferring an individual right and that he hand-waves away the preamble.  It is that he rejects means-ends scrutiny entirely in the Second Amendment context and makes the right to bear arms absolute so long as it falls within its "historical" sphere as he broadly defines it.  That means as of now the right to bear arms is not merely an individual constitutional right on par with the other in the Bill of Rights.  It is the most powerful right in the constitution - the one and only absolute right that brooks no exception within its scope of operation.

[grumbler]

In other legal texts of the period, is "the people" always the same thing as "the individual citizen"?

No, not even in the US Constitution.  "The people" is used both to refer to all individuals ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated") and to people collectively ("the right of the people peaceably to assemble").  Even the first sentence of the Constitution has the collective use of "the people" ("We the People of the United States").  Examination of the term "the people" doesn't get us anywhere in examining the second amendment.

[Berkut]

How does this Heller++ new Second Amendment allow a state to restrict an individuals right to own and carry a machine gun? Light mortars? MANPADS?

How about handguns that are designed to evade metal detectors?

[grumbler]

Yeah, I've always had found it baffling that it's read as an individual right. As an outsider, that's the confusing thing to me.

For 219 years, the USSC followed the line of reasoning that every word of the second amendment was as important as any other word.  In 2009, the radical court faction followed Antonin Scalia's argument that only the operative clause of the Second Amendment was part of the US Constitution.  Amazingly, he also claimed in the majority opinion that this had ben the interpretation of the USSC all throughout US history, despite that being clearly false.

Heller is one of those decisions that, like Dred Scott and Citizens United, will serve future history classes as examples of how the USSC can sometimes come up with the most bone-headed and pernicious judgements, to be struck down by later, saner judges or politicians.

[alfred russel]

A core canon of textualism is that all words in a legal text are significant and must be given real meaning if possible. So a consistent textualist must give meaning and function to the preamble and can't read the amendment as if those words didn't exist.

Cool, but the single sentence of the second amendment has two parts. The second has a clear meaning:

" the right of the people to keep and bear Arms, shall not be infringed."

The other is adding confusion, and i've said what i think was going on from a historic perspective, but we are committed to a textualist approach here.

"A well regulated Militia, being necessary to the security of a free State,"...

A logical perspective would be that this is an explanation for the purpose of the other clause. What I don't think is a strong argument is that this ambiguous portion of the amendment should be so expansively interpreted so that the vast majority of "the people" are unable to "bear arms"--a right explicitly granted in the other portion. Just focusing on the text of the amendment, i don't think you get there unless that is where you want to end up.

[Berkut]

Who has proposed that expansive interpretation?

Is there some place in America where there is an absolutely denial of anyones ability to bear arms?

The case in question certainly has zero bearing on such an expansive strawman.