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

[alfred russel]

That is odd. I live in New York and know lots and lots of people who own and bear a variety of arms all the time.

Which New York are you talking about?

Well like half the state population lives in new york city, and i'm not clued into all the gun laws there but my impression is that the random dude can't walk around bearing arms in the city. A lot of the rest of the population is in other cities that i imagine are similar.

I'd imagine that if a gun was left on every resident's doorstep this am, and every resident just carried the weapon around during their normal Thursday, the vast majority would violate a gun control law at some point.

[The Minsky Moment]

New York State has minimal restriction on long guns.  New York City is the exception.
The plaintiffs in the gun case were from an upstate county and could carry their rifles freely.  What they wanted was to carry concealed pistols in the grocery store,

[DGuller]

Rural areas everywhere are going to be more lax with guns.  In NYC getting a carry permit is legally possible but in practice impossible without a tightly defined need (i.e. you're a cop or ex-cop), or special connections. 

From what I know, in Jersey City, to even buy a gun you need to get permission from police and maybe go through a background check with references and such, and you will probably be denied if you say you want it for defense rather than, say, target shooting.  I don't know that for a fact, and it may be outdated, but it is something that I learned from research a while back.

It you buy into the idea that owning guns is generally a right, then both NYC and Jersey City are infringing on that by way of regulation and unwritten policies disingenuously presented as discretion.

[Berkut]

It always struck me as weird that an amendment about a militia doesn't include military weapons. For a militia to be effective requires access to military weapons. Whether the imagined enemy is an army raised by the federal government or a foreign power, you need military weapons to fight them. These days this means weapons up to and including nuclear weapons.

AS grumbler indicated in his comment above, this issue arose in a very specific historical context.  There was a very lively debate both before and after the Revolution about the relative efficacy of, and relative benefits and dangers of, state and local militias vs. regular troops under national command.  That debate was not definitively resolved, the Constitution memorializes a compromise between the two.

A big knock on militias was that they weren't well organized, equipped or disciplined.  The Militia clause in Article I of the constitution addresses the organization and discipline issue. But equipment was a big problem - during that era, a very high percentage of militiamen were unable to muster with a properly maintained musket fit for military use. 

One common revolutionary era law relating to firearms were laws requiring all adult males eligible for militia service to keep and maintain a musket fit for militia service.  This was not regarded as a treasured individual right but rather as an annoying financial imposition.  However, from the POV of the state government, this was a useful power to have, without interference from federal authority.

Another regulation of the era, especially in the northern cities, were rules placing strict limits on the amount of powder that could be kept.  Excess powder had to be kept in government-controlled warehouses.  I can't imgaine how the NRA would react today to such law - e.g. imagine if Boston or Philly passed a law saying that people could only keep 2 magazines of ammo on their persons or houses, and had to deposit the rest in a government warehouse.  But such a rule would satisfy Thomas' requirement of a regulation understood to be consistent with common law rights at the time the Amendment was enacted.

The point is that if the amendment had a particular meaning and significance in a particular historical context that doesn't exist anymore.  The originalist conceit that one can simply transplant one historical context to another inevitably leads either to nonsensical results or to Kagan's pick and choose, "get-out-of-text free card" critique.

This is why I find the entire 2A discussion just exhausting.

People who argue that the only thing we should focus on is the last part either don't know, or are willfully ignoring, the actual history of their own country.

And trying to explain it is just a waste of time. They don't care. They don't want to care. They just want their guns.

The is no "textualism" or "originalism". There is "I want my guns, all of them". 

Like I said before, there is not way to start with the words of the 2A, and get from them to an individual right to carry concealed weapons and assault rifles, without adding some additional reasoning in. And once you add additional reasoning, context, the idea that the outcome of that objectively is where they want to get is even more ridiculous. It requires and active dismissal of the actual history of the revolution itself, much less the 200 years that followed it.

[Berkut]

That is odd. I live in New York and know lots and lots of people who own and bear a variety of arms all the time.

Which New York are you talking about?

Well like half the state population lives in new york city, and i'm not clued into all the gun laws there but my impression is that the random dude can't walk around bearing arms in the city. A lot of the rest of the population is in other cities that i imagine are similar.

I'd imagine that if a gun was left on every resident's doorstep this am, and every resident just carried the weapon around during their normal Thursday, the vast majority would violate a gun control law at some point.

So unless random dudes can carry illegal weapons anywhere they want, their 2A rights are being violated?

So this isn't about your previous claim that nobody could bear arms, it is about a new claim that nobody can bear illegally procured arms anywhere they want without any restriction at all.

You are right - they cannot carry illegal weapons, or missiles, or drive tanks through Manhattan.

[Admiral Yi]

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.

I agree with everything you wrote.  The preamble must serve *some* purpose.  A natural reading of the preamble is, as Fredo said, that a militia is the rationale for the right to carry arms.  Unfortunately for advocates of gun control it is *not* a natural reading of the whole amendment that this rationale then leads to the right to carry arms being limited to members of state militias.  If this had been the intention it would have been triflingly easy to put into words.

Thinking out loud, I wonder if the 2nd was written this way because the drafters just couldn't foresee a central governement motivation to limit gun ownership apart from the militia issue.  Nobody objected to farmers on the frontier arming for defense against Indians.  No one objected to anyone owning hunting rifles.  Gun crime was insignificant.

Another consideration to keep in mind is that even those rights that are written in absolute terms are not given absolute effect.

Absolutely.  But these balancing tests cut both ways don't they?  One group of justices can find an exception to the absoluteness of a given right, and another group can find the opposite.

[alfred russel]

That is odd. I live in New York and know lots and lots of people who own and bear a variety of arms all the time.

Which New York are you talking about?

Well like half the state population lives in new york city, and i'm not clued into all the gun laws there but my impression is that the random dude can't walk around bearing arms in the city. A lot of the rest of the population is in other cities that i imagine are similar.

I'd imagine that if a gun was left on every resident's doorstep this am, and every resident just carried the weapon around during their normal Thursday, the vast majority would violate a gun control law at some point.

So unless random dudes can carry illegal weapons anywhere they want, their 2A rights are being violated?

So this isn't about your previous claim that nobody could bear arms, it is about a new claim that nobody can bear illegally procured arms anywhere they want without any restriction at all.

You are right - they cannot carry illegal weapons, or missiles, or drive tanks through Manhattan.

Again, i'm not arguing anything about what the law should be, or what rights should be protected. I don't own a gun, don't want to own a gun, and don't want guns around me generally.  I am happy about the restrictions on guns in New York and wish we had more in Georgia.

What I am arguing is that you were wrong about there not being a way to get to the conclusion the NY law should be struck down based on a purely textualist approach.

[The Minsky Moment]

Absolutely.  But these balancing tests cut both ways don't they?  One group of justices can find an exception to the absoluteness of a given right, and another group can find the opposite.

Balancing tests require an act of judgment to do the balance, so yes they can lead to different conclusions.  But there is a long history of such tests and what constitutes compelling state interests so it is not purely a discretionary effort.

Had the Court applied a balancing test in the NY Gun case, it could not have reached the result - striking the entire law down on its face.  The NY law provided that a conceal carry handgun license would be issued for proper cause shown.  On its face that is a reasonable regulation - the question would be how the cause requirement was applied in individual cases. That would mean the gun club plaintiffs could have brought an "as applied" challenge - i.e. not challenging the law generally but rather the reasonability of its application to their individual cases.  On a balancing test, they might have won that case but the law would still remain intact for other reasonable applications.

The Court, however, had an agenda, which was not to decide the merits of the case of these particular individuals, but to overturn the New York legislature judgment and require them to apply a shall issue carry license across the board. The only way the majority felt they could do that is by dispensing with the balancing test and making the right absolute.

[bogh]

Question:

Given the absolutist reading of the 2nd amendment, how does one allow for the special zones and areas that legally are allowed to restrict guns - e.g. airplanes, schools, near the president etc.? How is that not an infringement if the wording after the preamble is to be taken completely literal and with no modification based on neither intent (through the preamble) or practicality/societal good?

[Berkut]

That is odd. I live in New York and know lots and lots of people who own and bear a variety of arms all the time.

Which New York are you talking about?

Well like half the state population lives in new york city, and i'm not clued into all the gun laws there but my impression is that the random dude can't walk around bearing arms in the city. A lot of the rest of the population is in other cities that i imagine are similar.

I'd imagine that if a gun was left on every resident's doorstep this am, and every resident just carried the weapon around during their normal Thursday, the vast majority would violate a gun control law at some point.

So unless random dudes can carry illegal weapons anywhere they want, their 2A rights are being violated?

So this isn't about your previous claim that nobody could bear arms, it is about a new claim that nobody can bear illegally procured arms anywhere they want without any restriction at all.

You are right - they cannot carry illegal weapons, or missiles, or drive tanks through Manhattan.

Again, i'm not arguing anything about what the law should be, or what rights should be protected. I don't own a gun, don't want to own a gun, and don't want guns around me generally.  I am happy about the restrictions on guns in New York and wish we had more in Georgia.

What I am arguing is that you were wrong about there not being a way to get to the conclusion the NY law should be struck down based on a purely textualist approach.

Given that to do so you had to invent a scenario where people are magically given illegally procured guns, I think you proved exactly the opposite.

There is no "textualist" approach that can get to the strike down conclusion - it requires adding in a bunch more assumptions.

[The Minsky Moment]

Question:

Given the absolutist reading of the 2nd amendment, how does one allow for the special zones and areas that legally are allowed to restrict guns - e.g. airplanes, schools, near the president etc.? How is that not an infringement if the wording after the preamble is to be taken completely literal and with no modification based on neither intent (through the preamble) or practicality/societal good?

You would have to argue that the zonal restrictions do not interfere with the "common law right to bear arms" as it existed in 1789.  And don't ask me how the hell one does that in a way that makes sense.

[Jacob]

... and then you have to decide where it's okay to have a zone. Because why not make NYC a zone?

[grumbler]

Thinking out loud, I wonder if the 2nd was written this way because the drafters just couldn't foresee a central governement motivation to limit gun ownership apart from the militia issue. 

That moment you realize that the other person hasn't been paying attention at all.   

[alfred russel]

Given that to do so you had to invent a scenario where people are magically given illegally procured guns, I think you proved exactly the opposite.

There is no "textualist" approach that can get to the strike down conclusion - it requires adding in a bunch more assumptions.

"the right of the people to keep and bear Arms, shall not be infringed"....I really don't think I invented a scenario where people were magically given illegally procured guns...at least I didn't intend to. But the text of the amendment is quoted in this post. If you only want to rely on a textualist approach, it isn't hard to see how that can get you to a strike down conclusion.

[grumbler]

Given that to do so you had to invent a scenario where people are magically given illegally procured guns, I think you proved exactly the opposite.

There is no "textualist" approach that can get to the strike down conclusion - it requires adding in a bunch more assumptions.

"the right of the people to keep and bear Arms, shall not be infringed"....I really don't think I invented a scenario where people were magically given illegally procured guns...at least I didn't intend to. But the text of the amendment is quoted in this post. If you only want to rely on a textualist approach, it isn't hard to see how that can get you to a strike down conclusion.

"A well-regulated militia being essential to the security of a free State..."  I really don't think that your scenario creates a well-regulated militia, and so the Second Amendment would not apply.

Had the USSC simply declared that one of the un-enumerated rights of American citizens was self-defense, then we wouldn't even need your absurd contortions to try to hammer that square Second Amendment into that round self-defense hole.