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sl8

(13,769 posts)
Mon Apr 10, 2023, 08:13 AM Apr 2023

"A Constitutional Conundrum of Second Amendment Commas"

If nothing else, for the novelty of seeing a 2A thread posted somewhere other than in GD.

Link to PDF at following link:

https://scholarship.law.duke.edu/faculty_scholarship/3184/


College of William & Mary Law School
William & Mary Law School Scholarship Repository
Faculty Publications Faculty and Deans

2007

A CONSTITUTIONAL CONUNDRUM OF SECOND AMENDMENT COMMAS

A SHORT EPISTOLARY REPORT


William W. Van Alstyne

THE FOLLOWING CONSTITUTIONAL EPISTOLARY travelogue on commas begins with an original email inquiry from Dan Gifford posted to an email list of Second Amendment addressees in late March, 2007, soon after the decision by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in Parker v. District of Columbia.1 The decision in Parker is the first to apply the Second Amendment to hold a federal gun law to be invalid. The particular law, enacted in the District of Columbia, forbade anyone to keep any operable handgun at home, regardless of the homeowner’s competence, complete lack of any criminal record, or evidence of prior abuse or misuse of firearms. In holding that the District had overreached any adequate justification sufficient to sustain such a measure as thisconsistent with the Second Amendment, the court of appeals made some use even of the particular comma placements within the Second Amendment. The comma commentary was far from being the sole source of the court’s compelling review and rejection of the challenged law. The reader is certainly encouraged to read the entire opinion for the rest of the court’s reasoning, but that is not the object of the following observations and remarks. Rather, they – the observations and remarks offered here – are merely as they purport to be, i.e., light liftings from an ongoing exchange of letters on the comma controversy. And so they begin as they do, with the first posted note by Dan Gifford, raising an interesting point the reader is now invited to consider and then invited also to read further (but of course only if so inclined).

[...]




On edit:
Note that Parker is the case that became District of Columbia v. Heller

https://en.m.wikipedia.org/wiki/District_of_Columbia_v._Heller
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"A Constitutional Conundrum of Second Amendment Commas" (Original Post) sl8 Apr 2023 OP
I haven't read the post, but I've expressed the opinion that the 2A guarantees that states have the Karadeniz Apr 2023 #1
Pick another BOR amendment. yagotme Jun 2023 #4
This is all total BS. If the GOP wanted to keep Americans safe they could do it. Irish_Dem Apr 2023 #2
1939 Miller decision by supreme court jimmy the one Jun 2023 #3

Karadeniz

(22,516 posts)
1. I haven't read the post, but I've expressed the opinion that the 2A guarantees that states have the
Mon Apr 10, 2023, 10:43 AM
Apr 2023

right to their own well regulated militias. I don't see that it empowers the feds to dictate policy to the states. Knowing the founding fathers distrust of how standing armies had been used for disruptive purposes elsewhere, they wanted to empower smaller, local defensive groups... and to go after slaves and Indians, which would have needed local groups, not the arming of everyone for a national defensive effort.

yagotme

(2,919 posts)
4. Pick another BOR amendment.
Tue Jun 27, 2023, 10:15 AM
Jun 2023

See if what you think still applies re: Fed/State dictation. The BOR is a listing of things that the government CANNOT infringe upon. Can a State limit free speech within it's boundaries? Well, technically, no. Lawsuits will ensue.

Irish_Dem

(47,058 posts)
2. This is all total BS. If the GOP wanted to keep Americans safe they could do it.
Mon Apr 10, 2023, 11:03 AM
Apr 2023

If the American people wanted to stop gun violence they could do it.

The political will is not there.

The 2A is just an excuse for the GOP to keep fund raise, get votes and terrorize Americans.
A fearful populace is a compliant one.

jimmy the one

(2,708 posts)
3. 1939 Miller decision by supreme court
Mon Jun 12, 2023, 08:09 AM
Jun 2023

It has been 8 decades since a US Federal supreme court ruled on the proper interpretation of the 2nd Amendment.
The 1939 Miller decision was a unanimous 8-0 opinion that it was a militia based right.

excerpts, 1939 scotus Miller decision, 8-0 unanimous: Miller, (1939) Only weapons that have a reasonable relationship to the effectiveness of a well-regulated militia under the Second Amendment are free from government regulation.
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than 18 inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.


With obvious purpose to assure the continuation and render possible the effectiveness of such {militia} forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view
https://en.wikipedia.org/wiki/United_States_v._Miller

One would think that if the 1939 supreme court had truly thought it was an individual right, as gun nuts spin 2ndA and miller, that at least one of the justices would've objected to the wording above, arguing that 'whoa, future generations will think we ruled 2ndA was a militia based right' - but not one objected to their wording.

United States argument, bolstered by Dept of Justice amicus brief to the 1938 Supreme Court (one justice recusal due to late arrival in 1939): In the only other case in which the provisions of the National Firearms Act have been assailed as being in violation of the Second Amendment (United States v. Adams (S. D. Fla.)), the contention was summarily rejected as follows:
The second amendment to the Constitution, providing, "the right of the people to keep and bear arms, shall not be infringed," has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act. It refers to the militia, a protective force of government; to the collective body and not individual rights.
* * *
https://guncite.com/miller-brief.htm

PS: the recused justice from the 1939 supreme court later wrote a gun control paper regarding some limitations on handguns, so he would surely have made it unanimously 9 - 0.

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