It is unclear if it should be the fight for the Second or if it is the fight against the second. Regardless it is best to know your enemy.
In the best of worlds, what would happen when a new law was being proposed is that the lawmakers would look at the constitution and say “This isn’t constitutional.” and it would die. It doesn’t happen that way. The number of letters I’ve gotten from my Senators and representatives saying “I support the Second and this bill will not infringe on the rights of gun owners.”
The battle is waged between those that know what is happening with the troops of the ignorant sounding off.
“It is my right to possess and carry arms!” is the battle cry but regardless of how true that statement is, the Evil and their minions can’t accept that simple statement.
The attack on the Second falls into different vectors but they are always the same.
- The Second Amendment doesn’t apply to you.
- The Second Amendment doesn’t apply to that.
- The Second Amendment doesn’t apply there.
- The Second Amendment is wrong for today so it doesn’t apply to ____.
- The Second Amendment is not unlimited and must be balanced against societies needs as expressed by the government.
Argument 1 is based on the word “Militia” within the Second. The infringers, correctly, point out that until Heller the Supreme court had never ruled that the Second was an individual right. This is because until the infringers started to claim it was a collective right there was no need for a Supreme Court ruling.
The reason it took so long to be heard by the Court is because nobody had standing for the longest time and if they did have standing the State was often willing to take a loss rather than let a case get to the Supreme Court.
Heller eviscerated the “Collective” right argument. They went through each and every part of the Second and defined and explained what each part meant.
The second applies to YOU. That’s the end of it.
You can see that in the way that the legal landscape changed after Heller.
Argument 2 is that some arm or part of an arm isn’t covered by the Second. Since there were no center fire cartridges in 1791 then the Second doesn’t apply to center fire pistols and rifles. It only applies to muskets. The argument is so ridiculous as to be barely worth noting. Except it is repeated over and over again.
The Supreme court addressed this in Heller by explicitly stating that it does apply to all arms. Not just arms as they existed in 1791.
Argument 3 was already in effect in 2008 but it became the goto argument for the time being. It being that since Heller identified a purpose of the Second, defense of self within the home, that that was the only place were you could exercise your Second Amendment rights.
This was slapped down with McDonald which stated that the right to bear arms extended outside of the home. This turned every state that was “No Issue” into a “May Issue” state. Of course some states, like Hawaii, just never issued any.
This is where things stood after the Heller and McDonald opinions. The states that were reasonable were reasonable. Many states moving from “Shall Issue” to “Constitutional Carry.” Unfortunately the infringing states responded to “May Issue” requirements by making it so difficult to get permission from the government to carry that it was impossible for the average person to get a CCW.
In 2018 New York State Rifle & PIstol Association Inc filed suit against the City of New York. The suit alleged that NYC’s “rule” (go to jail if you violate said rule) that you could not transport your firearm out of the city was unconstitutional. The city and state argued that it was only a small infringement because you could have firearms stored outside of the city that you could transport to outside ranges and competitions. It was only your city firearm that couldn’t leave the city.
In arguments the city claimed that this rule kept the people safe and had to be kept and that the court needed to balance the minor infringement v. the greater good of society. The city won this argument in front of the second circuit court. The rule could stand.
The plaintiffs appealed to the Supreme court. The city and state argued that the Court should not hear the case and that it was a well balanced rule that didn’t really intruded on the core of the Second Amendment.
The Supreme Court granted certiorari. New York City leaped into action and the police department changed the rule. The city then argued the case was moot. This didn’t seem to hold much sway with the court so the state of New York passed a law making the repeal of the “rule” law. The city and state then argued the case was moot and the court agreed.
April 27, 2020
Held: Petitioners’ claim for declaratory and injunctive relief with respect to the City’s old rule on transporting firearms is moot, and any claim for damages with respect to that rule may be addressed in the first instance by the court of appeals and the district court on remand.
This left us where we have been for the last 10 years before Bruen
The infringers during this time turned to argument 5 in court and arguments 4 and 5 in public.
Argument 4 can be truly argued in good faith and it is the only path forward for the infringers. This argument leads to a proposal of an amendment to the constitution to change the second amendment. Either to repeal it or to replace it. The problem with this is that the second amendment does not grant us the right to keep and bear arms.
The Second Amendment acknowledges that the right to keep and bear arms pre-exists and denies the government the ability to infringe on that right.
While the infringers get most of the air time in expressing their opinions regarding the horrors of guns, the fact of the matter is that it would be very difficult to get enough states to vote for an amendment to repeal or modify the second amendment. This is not currently a concern but it is something we need to keep our eye on.
Part of this argument is that a person shooting in self-defense is acting as judge, jury and executioner. I.e. the woman that shoots the man raping her should have instead held him for the cops and then gone to court to argue that he did indeed rape her.
As stupid as that might sound to you it is an argument they make.
This takes us to “means-end” balancing. Because the Heller opinion said that some restrictions could be left in place as long as they were within the text, history and tradition of the Second Amendment at the time of ratification the infringers leaped on the concept of “means-end”.
“Means-end” is simply the government (the courts are a part of the government) deciding how much of your rights they will stomp on. Be it a law forcing an artist to create art on demand for any person to a law requiring you to give up your papers on demand, all such mean-ends are allowing the government to violate your rights.
It was and is especially egregious in terms of the second amendment. The government could make a claim that a law would make society better or safer or would make children safer. This allowed the government to create the law in the first place. It passed means-ends in the chambers and at the President’s or Governors office.
When it was challenged the court would decide if the law did infringe on your rights. Or they would just stipulate that a law infringed. They would then decide how much it infringed which would allow them to pick the level of balancing that would be performed.
In other words, the scale was never fair. In every case the court would decide just how much to add in favor of the government before they started analysis. Once the decision was made as to how hard they would be pressing down on the scales of justice with their thumb, the court would then hear the claim of the government.
Since all gun control laws are of a predictive nature there have never been in real facts to back up the government claims. “A large capacity magazine ban will save lives!” Why will it? What proof do you have? Has it ever been proven that it works.
“Well it would have been worse if they had access to large capacity magazines so of course it worked.”
“It would have been worse if…” is a non-argument that is used constantly. We don’t know what would have happened if… When we suggest that the Uvaldi shooting might have been stopped sooner if the teachers had access to firearms we are told that there is no proof of that. At the same time they tell us it would have been so much worse if the teachers had shot back.
Which takes us to the post Bruen situation. At this time the infringers are throwing everything at the wall in a effort to see what sticks.
They are trying the “sensitive locations” with the idea of making the ability to carry without violating a restricted location so difficult that you decide not to carry.
They are trying the “good moral character” gambit. It isn’t that you have to have a good reason to carry, you have to be a good person. In many “May Issue” states being arrested invalidates your right to bear a firearm. It doesn’t matter if you were convicted. It doesn’t matter if the case was dropped. It is just the act of being accused and arrested that will keep you from getting a permit.
It is federal law that a person that gets an ex-parte restraining order placed on you has in fact made you a prohibited person.
They are attempting to find laws in the late 1800s, post civil war, and early 1900s to justify their current infringements.
There are a couple of court cases where the courts have ruled that the government banning something and then claiming that the banned item is “uncommon” in order to justify keeping the ban is not an acceptable argument. This is one of the arguments made post Heller
They are also using the argument that restricting some firearms doesn’t infringe or that placing limits on how fast or easy it is to get a firearm isn’t infringing.
While all of this is happening in the courts, the media is pushing a narrative that the Supreme court got it wrong. In Heller they got it wrong because Militia!!! In McDonald they got it wrong because states should be able to protect the children. In Bruen the court got it wrong because means-end is the correct way to judge rights.
There are dozens of articles out there claiming that late 1800s through early 1900s should be considered as part of the history and tradition of gun control laws, even though Heller said otherwise. 1791 defines the history and tradition, 1868 can be used to confirm that history and tradition but NOT to contradict it.
In addition there is the never ending drum beat of “The Supreme Court is illegitimate!” The argument being that because the court is now 6-3 originalist vs leftist that it no longer represents the people. As compared to when it was 7-2 leftist vs originalist when every decision was final forever and ever and there was no legitimate reason to complain.
The last argument that keeps popping up is that gun owners should be required to get training before being allowed to own guns.
The Washington Post argues that gun training should be required. For some reason the believe that knowing the best way to store black powder, gun powder, and matches is relevant to owning firearms.
The New Republic thinks that the Supreme Courts Bruen decision is just to hard for judges to follow and besides, look at these horrible decisions federal judges have been making where they didn’t use “means-end”
And because Justice Thomas refuses to keep his wife under control and not to recuse himself the court has serious ethics issues. And Amy Coney Barrett is hearing cases regarding religion…
The Nation feels that it was conservatives that leaked the Dobbs decision because somebody said a conservative told them what the court would hold in regards to a different abortion case years ago.
The Evil that exists will attack anything and everything that stands in their way.
“The Second Amendment acknowledges that the right to keep and bear arms pre-exists and denies the government the ability to infringe on that right.”
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Correct, but in my (IANAL) opinion, not fully correct.
The 2nd acknowledges that we have a fundamental human right to self defense against threats, both personal and political, and it restricts any government’s ability to infringe on that right. A right exists, whether you can exercise that right or not. If arms disappear, your right to self defense continues to exist. If your state/city has a duty to retreat law on the books, your right to self defense still exists. Possession of an item is not a right. Possession of the most effective means to exercise that right is (IANAL) part and parcel of the right. Possession of an item that will provide someone equal standing to the threat is part and parcel of that right.
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However, the words in the 2nd will get in the way of an argument based on that opinion. What exactly are “arms?” seems to get way too much traction. And, it is nothing more than a red-herring argument. It moves you from the real argument to one about weapon tech. And, it is stupid. Do not play that game. Single answer to any of the above arguments: “How does my law abiding and responsible ownership of ________ cause any harm to society as a whole?”
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When the anti gun people can give my a supportable and reasonable answer to that question, I will likely agree with them. Until then, they have nothing except magical thinking to support their position.