2nd Amendment: In the home only?

[jocal505]

Thanks for the link. But where is the discussion, about the key matter within the link?


ACLU Thinks the Second Amendment Is a Threat to the First Amendment


OIL-AND-WATER ALERT!

Amusing, because the reason.com writer (while noting the ACLU's turn against white supremacists/armed protests), is missing the point here.

The First Amendment trumps the Second, because free expression is the superior, and peaceful, alternative to the decisions made by force of arms. 

Introducing force queers the democratic process, by definition. Duh. 

 

[Pertinacious Tom]

Biden Administration Asks the U.S. Supreme Court to Judicially Nullify the Right to Bear Arms

Well, that's the NRA's take anyway.
 

On September 21, the Biden Administration filed an amicus brief in the pending U.S. Supreme Court case of New York Rifle & Pistol Association v. Bruen, supporting New York’s draconian and unconstitutional restrictions on the right to bear firearms in public for self-defense.

This NRA-supported challenge to New York’s “may-issue” licensing scheme for public handgun carry is the first Second Amendment challenge to a firearm law to reach the high court since 2010.

New York’s law presumptively denies the right to bear arms for self-defense unless a license applicant can demonstrate a special need for self-protection that distinguishes the person from the general population.

In practice, this means the rich and well-connected can get unrestricted carry licenses but ordinary people cannot, even if they actually face a greater risk of being violently victimized while going about their daily lives in public.

I agree about who can $how a $pecial need. But I found this funny:

The government’s brief, filed under the auspices of the U.S. Department of Justice, also gives complete vindication to the NRA’s opposition to now Attorney General Merrick Garland’s nomination to the U.S. Supreme Court in 2016, when he was a federal appellate judge. Anti-gun pundits had mocked that opposition at the time, falsely claiming there was no legal basis for it, even though Garland had voted to rehear a case that had ruled an outright ban on handgun possession violated the Second Amendment. Yet, as we had explained, the only plausible reason to support such a “do-over” was that the court had come to the wrong conclusion. Why repeat something already done correctly?

Possibly because my memory goes back a bit further, to the time when the NRA tried twice to scuttle the Parker (later Heller) case before SCOTUS could hear it.

 

[jocal505]

Possibly because my memory goes back a bit further, to the time when the NRA tried twice to scuttle the Parker (later Heller) case before SCOTUS could hear it.

Ah, yes, THAT time. Are you an able reader, about the pre-Heller events and developments? Does your memory, perhaps, go back to Joyce Lee Malcolm? 

Might your memory go back to how Robert Levy paid for some embarrassing historical research? Let's discuss the Statute of Northampton, as quoted by Scalia's historian, in your Heller case.

 

[Pertinacious Tom]

In indoor militia news, the first merits amicus brief showed up yesterday in New York State Rifle & Pistol Association Inc. v. Corlett as SCOTUS Revisits Gun Control.

The case is now called NY State Rifle & Pistol Association Inc v Bruen and has been scheduled for argument at SCOTUS on Nov 3, 2021.

The final reply from the petitioners came out a few days ago. That's their last shot before oral arguments in a couple of weeks.

Commenting on the upcoming case,

Public Defenders vs. Gun Control
 

...

"Each year," the groups told the Court, "we represent hundreds of indigent people whom New York criminally charges for exercising their right to keep and bear arms. For our clients, New York's licensing requirement renders the Second Amendment a legal fiction. Worse, virtually all our clients whom New York prosecutes for exercising their Second Amendment rights are Black and Hispanic." And that "is no accident," the brief argued. "New York enacted its firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities. That remains the effect of its enforcement by police and prosecutors today."

According to the public defender groups, New York's scheme has had predictably "brutal" consequences for their clients. They have been "stopped, questioned, and frisked," "forcibly removed" from their homes, locked up "in dirty and violent jails and prisons," and "deprived….of their jobs, children, livelihoods, and ability to live in this country," all "because our clients exercised a constitutional right."

It's possible that such arguments will resonate with Justice Sonia Sotomayor, the Court's leading critic of overpolicing and related law enforcement abuses. As the public defenders make abundantly clear in their brief, a Supreme Court decision against New York's gun control scheme would be a victory not only for the Second Amendment but for criminal justice reform too.

It's possible. I think they should. We'll soon see.

 

[Pertinacious Tom]

NRA lawsuit gives SCOTUS chance to confront 2nd Amendment's roots in racism

The title seems like this article might have been written by someone who read the Public Defenders brief above. Alas, it seems to be the work of a mythspewer.

The justices next month will hear a challenge backed by the National Rifle Association to New York state’s restrictions on concealed handguns in public. The NRA and two gun owners are claiming the restrictions violate the Second Amendment, arguing that Americans have an unfettered right to carry guns in public for self-defense.

Conservative justices are expected to extend into the public sphere the gun rights established by the court in 2008 and 2010 for protection inside the home.

...

In the 5-4 ruling, conservative justices determined that the Second Amendment was originally intended to grant an individual right to have guns, tied to self-defense, and unconnected with militia service, such as the National Guard.

Justice Antonin Scalia, originalism's most prominent evangelist, said the Second Amendment right stemmed mainly from fears that the federal government might disarm citizen militias, enabling a standing army to rule.

The liberal's legal interpretation in Heller was that the Second Amendment grants a collective right in the context of state-regulated militias. Justice John Paul Stevens said that's evident in the first words of the Amendment: "A well regulated Militia, being necessary to the security of a free State..."

...

Another indoor militia believer. Sigh. They really didn't muster in homes.

The "collective right" interpretation was abandoned by Lawrence Tribe before the Heller case and Justice Stevens' opinion begins this way:

Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.

The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals.

The article goes on to talk about how the militias were all about suppressing slaves, which ignores the militias in non-slave states.

 

[jocal505]

NRA lawsuit gives SCOTUS chance to confront 2nd Amendment's roots in racism

The title seems like this article might have been written by someone who read the Public Defenders brief above. Alas, it seems to be the work of a mythspewer.

Another indoor militia believer. Sigh. They really didn't muster in homes. INFANTILE BULLSHIT AWARD

The "collective right" interpretation was abandoned by Lawrence Tribe before the Heller case and Justice Stevens' opinion begins this way:

The article goes on to talk about how the militias were all about suppressing slaves, which ignores the militias in non-slave states.

Good article. Is this the right thread for the Tom Dogballs Ray discussion on this?

Yo Tom, yeah, let's have a beer with this author. First round is on me.

 

[jocal505]

Another indoor militia believer. Sigh. They really didn't muster in homes.

JACKASS MILITIA ALERT

footnote 190: The battle of Camden took place in 1780. General Horatio Gates of the Continental Army placed Virginia and North Carolina militia units in the center and on the right of his position. “They alone outnumbered the whole British force,” writes historian Charles Royster. Royster, supra note 143, at 282 (1979). “But they ran without firing a shot.” Id

source: Carl Bogus, from Tom's link.  

THE HIDDEN HISTORY OF THE SECOND AMENDMENT.pdf (thomsonreuters.com)

which ignores the militias in non-slave states.

Nope. Slavery concern was streaming within the discussions of the Second Amendment in the Continental Congress, north and south...

Footnote 192: A year earlier at the Constitutional Convention in Philadelphia, Luther Martin of Maryland raised the converse problem -- the North being forced to march its militia south. Martin suggested that the slave system would unfairly burden the Northern states because they would be bound to protect their sister states from insurrection. See Anti-Federalist Papers, supra note 60, at 161 (quoting proceedings of Aug. 21-22, 1787). In this same exchange with Martin, John Rutledge of South Carolina extinguished any thought that slavery might be a negotiable subject at the Constitutional Convention with his now famous statement that “(t)he true question at present is whether the Southern States shall or shall not be parties to the Union.” Id. Rutledge said he would be willing to exempt the Northern states from an obligation to defend the THE HIDDEN HISTORY OF THE SECOND AMENDMENT, 31 U.C. Davis L. Rev. 309 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 45 Southern states from slave insurrection. See id. Although Rutledge's suggestion of granting the North an exemption from the duty to suppress slave insurrections in the South was not acted upon by the Constitutional Convention, Maryland later proposed a constitutional amendment providing that the “(m)ilitia not be subject to the rules of Congress, nor marched out of the state, without the consent of the legislature of such state.” 2 The Debates on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle Over Ratification 555 (1993). Query whether, by raising the possibility of Northern militia being ordered to march to the South, Luther Martin unintentionally stimulated fellow delegate George Mason's thinking about the reverse problem.

 

[jocal505]

JFC. The Continental Congress was actively implicit in slave suppression. The Second Amendment was their tool, to secure the free state...the one with all the slaves. And they needed the Northern militias, to protect the southern militias, FFS.

(See footnote 233): In response, Charles Pinckney, a Federalist who served as a delegate to the Constitutional Convention, did not challenge the assumption that the North might like to interfere with the slave system. Instead, he argued that the South had made a necessary bargain:

The honorable gentleman alleges that the Southern States are weak. I sincerely agree with him. We are so weak that by ourselves we could not form a union strong enough for the purpose of effectually protecting each other. . . . I am of the same opinion now as I was two years ago, when I used the expressions the gentleman has quoted -- that, while there remained one acre of swamp-land uncleared in South Carolina, I would raise my voice against restricting the importation of negroes. . . . We (at the Constitutional Convention) endeavored to obviate the objections that were made in the best manner we could. . . . By this settlement we have secured an unlimited importation of negroes for twenty years. Nor is it declared that the importation shall be then stopped; it may be continued. We have a security that the general government can never emancipate them, for no such authority is granted; and it is admitted, on all hands, that the general government has no powers but what are expressly granted by the Constitution, and that all rights nor expressed were reserved by the several states. We have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before. In short, considering all circumstances, we have made the best terms for the security of this species of property it was in our power to make. We would have made better if we could . . . . Id. at 283-86.

A speech delivered by Patrick Dollard later in the South Carolina ratification debates also evidences paranoia about Northern and, therefore, federal designs. “My constituents are highly alarmed at the large and rapid strides which this new government has taken towards despotism,” he said. Id. at 337-38. “They say it is big with political mischiefs, and pregnant with a greater variety of impending woes to the good people of Southern States, especially South Carolina, than all the plagues supposed to issue from the poisonous box of Pandora.” Id. Georgia: Debates in Georgia's ratifying convention were not recorded. From the convention's journals, which recorded motions and votes, as well as letters written by delegates, we know that after no more than three days of debate, the delegates voted to ratify the Constitution by a vote of 26 to 0. The speed and decisiveness of the vote is attributed to the fact that Georgia feared an impending war with the Creek Indian nation and hoped for protection from a strengthened Union. However, one delegate expressed the view that the Constitution should be ratified with a provision requiring a second convention a set number of years later to reconsider the interests of the Southern states, which might not be able to adequately protect the slave trade under the constitutional framework. See Smith, To Form a More Perfect Union, supra note 66, at 77-78 (1993).

•  
  

 

[Pertinacious Tom]

Yo Tom, yeah, let's have a beer with this author. First round is on me.

It's going to get really awkward when I turn and ask you whether our guest appears immature and volatile to you, but I can't resist the opportunity, so OK. You might want to warn him that's going to happen when you invite him.

Back on topic,

In major Second Amendment case, court will review limits on carrying a concealed gun in public
 

...

One brief supporting the challengers comes from a group of public defenders and Black legal aid lawyers, who tell the justices that the consequences of New York’s licensing scheme are “brutal” for racial and ethnic minorities, who are “routinely … charged with a violent felony for simply possessing a firearm outside of the home, a crime only because they had not gotten a license beforehand.” Another brief supporting the challengers argues that New York’s law prevents groups that are particularly vulnerable to violent crime – such as women, LGBTQ+ people, and religious minorities – from carrying a handgun to protect themselves.

...

Those NY public defenders and Black legal aid lawyers are notorious right wing gun nutz.

 

[Pertinacious Tom]

We are public defenders. New York’s gun laws eviscerate our clients’ Second Amendment rights.
 

When Jose was 22 years old, a stranger slashed his 16-year-old brother across the face on the way home from school. One year later, police stopped and frisked Jose on the street after they claimed to smell marijuana and see Jose move “furtively.” They didn’t find any marijuana, but they did find a pistol. When the police arrested Jose, he protested. He told them what happened to his brother, that he did not intend to harm anyone, and that he had a Second Amendment right to protect himself and his family. Nonetheless, New York prosecutors charged Jose with second-degree criminal possession of a weapon, a “violent felony” that applies to virtually all simple firearm possession cases in New York, both outside and inside the home. Faced with a 3.5-year mandatory minimum prison sentence, Jose pled to a lesser charge. His sentence was one year on Rikers Island — a “good deal” for simple firearm possession in New York City. For exercising a constitutional right, Jose is now a so-called violent felon.

As we argued in an amicus brief, we hope New York State Rifle & Pistol Association v. Bruen ends prosecutions like Jose’s. In District of Columbia v. Heller and McDonald v. City of Chicago, the court recognized a constitutional right to possess a firearm in self-defense. Despite those decisions, that right has been a myth for our clients. New York law says that if someone does not first obtain a government license, then they have no Second Amendment right anywhere, both outside and in their own home. That licensing requirement is the key to New York’s ban on firearm possession: It is a pretext whose true purpose is to make firearm possession unlawful. For our clients, it makes the Second Amendment a legal fiction.

In New York State Rifle, however, the court could finally enforce the Second Amendment by invalidating New York’s pretextual licensing regime. The constitutional problems are clear. In New York City, where we practice, the licensing structure allocates total and unilateral discretion to the NYPD to decide whose firearm possession is lawful and whose is a “violent felony.” It charges hefty fees, disproportionately burdening indigent people. And it results in a wildly disparate allocation of licenses, unsurprisingly favoring people who are associated with the police. No part of this gatekeeping structure is consonant with a fundamental constitutional right.

But the problems don’t end there: New York also aggressively and specifically targets Black and Latinx people for firearm possession under the pretext that their possession is unlicensed. As former Mayor Michael Bloomberg explained, the city believes that racially disparate approach is justified. As a result, virtually all — about 96% — of the people arrested by the NYPD for simple firearm possession are Black or Latinx. Thus, while white people throughout the nation amass firearm arsenals even as hobbies, Black and Latinx New Yorkers are arrested, prosecuted, and imprisoned for simply possessing a single pistol for self-defense. 

...

Meh. The constitutional rights of black and Latinx people are only important sometimes.

 

[jocal505]

We are public defenders. New York’s gun laws eviscerate our clients’ Second Amendment rights.
 

Meh. The constitutional rights of black and Latinx people are only important sometimes.

 

[Pertinacious Tom]

Why the Gun Rights Case Before the Supreme Court Matters So Much
 

...

The Supreme Court has not ruled on a gun-rights case since landmark decisions in 2008 and 2010 upholding that the Second Amendment protects a private citizen’s right to keep a firearm in the home for “traditionally lawful purposes,” including self-defense. It could now decide whether private citizens have the constitutional right to carry that firearm outside of their home, as well.

...

Not really "could," I think they will now decide whether militias operate indoors or outside.

And it's about time. It's a really stupid question.

 

[jocal505]

Why the Gun Rights Case Before the Supreme Court Matters So Much
 

Not really "could," I think they will now decide whether militias operate indoors or outside.

And it's about time. It's a really stupid question.

A silly straw man, presented by a foolish hack. It's the wrong question. 

 

[Pertinacious Tom]

A silly straw man, presented by a foolish hack. It's the wrong question. 

Haven't you been paying attention here?

It's critically important that we focus on that first part of the second amendment, excluding to the extent possible that inconvenient part about the right of the people.

So... if we're going to talk about whether the second applies outside the home, we should focus on whether militias operate indoors or out.

 

[jocal505]

Haven't you been paying attention here?

It's critically important that we focus on that first part of the second amendment, excluding to the extent possible that inconvenient part about the right of the people.

So... if we're going to talk about whether the second applies outside the home, we should focus on whether militias operate indoors or out.

I am tired of the bullshit, Scrotum Tom, because I spent the week reading about what Madison said and did, and why. Such actual history, you will not touch upon...yet the damning trail of logic can be found in your links.

THE HIDDEN HISTORY OF THE SECOND AMENDMENT.pdf (thomsonreuters.com)

If we interpret the Second as Heller did, an individual right is granted. Jefferson suggested this right to guns belonged to freemen...which would have included many blacks, in many states. Since no blacks were welcome in the Southern militias, simply tying the Second to the militia excluded all blacks. 

The militia, and the Second when written, were tailored for slavecatchers. The "prefatory" DNA of the Second rocked with racial bullshit. BTW >James Madison totally neglected mention of confrontations and self defense.

If the slaves escaped to the outdoors, it was an outdoor militia. If the escaped slaves found a roof, it became an indoor militia.

On this historic day of Supreme Court's review of the Second Amendment, my second observation is that CATO owns the Supreme Court.

See the dogballs glittering in chrome, swinging over a planet fatally contaminated by CATO.

View attachment 471363

 

[jocal505]

Oh the glory! Reading material sourced by Tom Dogballs Ray

THE OUTDOOR MILITIA

See p339.  At the Battle of Bunker Hill, for example, Americans, firing from well-fortified positions on top of the hill, successfully repulsed two waves of British soldiers foolishly attempting a frontal assault. 150 They inflicted overwhelming losses on the enemy; some British companies had casualty rates of ninety percent, and every member of the British commander's personal staff was killed or wounded. 151

Nevertheless, a third attack forced the Americans to retreat, not because the British had won the upper hand, but because, in the words of Robert Leckie, “a steady trickle of desertions had drained (the defenders) like a leaking pipe.” 152 Meanwhile, fresh militia troops nearby refused to come forward. 153 One colonel of the militia said he was too “exhausted” from building fortifications *p340 to lead his men to the battle front. 154

Thus, although they publicly celebrated Bunker Hill as a victory and praised the militia, 155 the more astute leaders of the Revolution realized almost immediately that the militia were not up to the job. Charles Royster writes:

Early in the war some revolutionaries argued that the militia, which had proven its competence at Lexington and Bunker Hill, could sustain a large part of the resistance to the British. By late 1776 little attachment to this idea remained . . . One year's experience convinced most American officials that they needed a standing army to fight the war. See footnote 173,  p66)

Almost all revolutionaries agreed that a standing army -- no matter how suspect and unwelcome -- was necessary. Every state supported the idea that a Continental Army should bear the main fighting; every state tried to recruit and supply it; every state preferred to be defended by it. 156 

 It was not only American military commanders who learned that the reality of the militia did not correspond to war rhetoric. The Continental Congress relented and authorized raising an army only after receiving message after message from Washington explaining in great detail the inadequacies of the militiamen and volunteers. 174 When Patrick Henry, then Governor of Virginia, informed Washington that the state was unable to fill its quota of regular troops but would send volunteers to make up the difference, Washington refused the offer. Volunteers were “ungovernable” Washington explained. 175

@Uncooperative Tom @Seriatim TomFootnote  174: Disciplinary problems were so bad that Washington asked Congress for authority to increase the maximum punishment he could inflict for infractions such as shooting guns in camp or plundering from 100 to 500 lashes with the whip. Although Madison supported Washington's request, Congress never granted it.

Even those who had sung the praises of the militia were reluctantly converted. According to Fawn M. Brodie, Thomas Jefferson's “faith that the militia could be counted on at least to defend home and family was shattered as time and again the raw troops broke ranks and ran from seasoned British regulars.” 176

The Founders, therefore, had a different view of the militia after the war than they had when the Revolution began. For many people, if not most, faith in the universal militia composed of the whole “body of the people” had been shattered.

The postwar attitude is evident in The Federalist Number 29, written by Alexander Hamilton.

Carl Bogus

 

[jocal505]

Okay, here's a pretty darned good account of the three or four hours of oral argument.

Supreme Court debates balance between public safety, self-defense in N.Y. gun rights case (msn.com)

 

[Pertinacious Tom]

SCOTUSBlog Coverage

The liberal justices also questioned whether New York’s permitting regime is actually as stringent as Clement suggested. Kagan noted that Clement’s brief portrayed the New York scheme as one that denies most people the ability to carry a gun for self-defense. But, she posited, if statistics showed that the state actually grants many of the applications, the court might view the case differently. And at more than one point in the argument, the liberal justices advocated for additional proceedings in the lower court to develop more facts on how many permit applications the state has granted – a move that would, at least for now, stave off a ruling on the merits of the challengers’ claim.

I saw in the piece Joe posted a claim that NY grants 65% of applications for unrestricted carry permits. Uh huh. They're granted in upstate counties and in places like NYC for those who $how proper cau$e to the right officials.

People who can't or won't $how cau$e to get a special dispensation to exercise their rights know better than to waste time applying.

 

[Keith]

https://www.msn.com/en-us/news/us/majority-of-supreme-court-appears-to-think-ny-gun-law-is-too-restrictive/ar-AAQi4qu


"Majority of Supreme Court appears to think NY gun law is too restrictive"


"Justice Brett Kavanaugh was more direct: “Why isn’t it good enough to say I live in a violent area, and I want to be able to defend myself?”"

Well what do ya know, Even your supreme court judge thinks Americanos have a violent culture. 

 

[jocal505]

People who can't or won't $how cau$e to get a special dispensation to exercise their rights know better than to waste time applying.

 Got any stats, Dogballs? You need to tell these victimized souls about boating accidents, coach. 

 Joe posted a claim that NY grants 65% of applications for unrestricted carry permits. Uh huh.

Joe posted sourced evidence. You posted a claim.