Republicans love judicial activism and love the current Supreme Court, the most activist in memory

The Second Amendment provides "A well-regulated Militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

The courts have interpreted this as a right of the people to keep and bear arms as necessary to foster a well-regulated militia. That is, the constitutional right to bear arms is the right of the state to have an armed national guard. The Second Amendment has not been interpreted as the "right" of an individual to own an AK-47 or a handgun or a sawed-off shotgun or an unregistered-unlicensed rifle.

I, personally, believe in an expansive reading of all ten amendments in the Bill of Rights and so I support the expansive reading of the Second Amendment, too. I am not averse to reading the Second Amendment as an individual right to bear arms. But that is NOT how the Second Amendment has been read by the courts. To expand the Second Amendment to encompass a previously unrecognized individual right would require, unquestionably, an act of extreme judicial activism and disregard for decades and decades of well-established judicial precedent.

When you hear some Republican moaning about judicial activism, please feel free to point out that we now have the most activist Supreme Court in recent memory and any expansion of the Second Amendment to encompass an individual right would be an act of breathtaking judicial activism.

Oh what a difference a typo makes.

hypocritical jackals that hate the truth cause the fucking wimps can't handle it.

Unlike say disparate state issues where various federal district courts may disagree, there was no logical reason to accept this case just to let the lower court stand.

dupe

before the prior LIBERAL court activism deviated from the "correct" path.

about the right to keep and bear arms of the second amendemnt?

http://www.davekopel.com/2A/lawrev/35finalpartone.htm




Has the right to keep and bear arms been interpreted as an individual right?

Yes, from the earliest court cases. Bliss and Nunn were strong statemnts of an individual right to arms as per state constitutions. Even Aymette, which stressed the collective purpose of the Tenn. right to bear arms provision, none-the-less interpreted the right to keep and bear arms as a right of the citizen -not a right of the state. Furthermore Aymette said that the government could only place restrictions on how arms were borne and could not prohibit bearing arms completely(as DC now does).



The right to keep and bear arms has been regarded as an individual right from the earliest cases, state and federal, and it should remain so.

discussion of reproductive rights to cite Kopel on the issue of gun rights. He's somewhere between a lobbyist and a cult leader.

The only courts that have been out of the mainstream in interpreting the right to keep and bear arms have been the US circuit courts that have contrived various collective rights, Limitied Individual rights, and states rights theories.


The Supreme Court is not bound by circuit court decisions.

Should the Supreme Court uphold Mr. Heller's right to possess a gun so long as it is the type useful for the common defense, that would not be judicial activism. It would simply be upholding their prior decision in US v. Miller.

--is about restricting the role of government in interfering in people's lives. It is only reasonable to interpret the Second Amendment in the same way, in the context of the entire Bill of Rights. Therefore, it would just be logical to say "the people" refers to individuals, and therefore individual gun owners, as opposed to state-run militias.

As far as "the courts" interpreting it in any other way, "the courts" have disagreed about what that amendment means ever since gun control became an issue.

recent court decisions:

Excerpt from Warin v. U.S. decided October 18, 2007:

"the Second Amendment confers only collective rights. See United States v. Bournes, 339 F.3d 396, 397 (6th Cir.2003); United States v. Napier, 233 F.3d 394, 402 (6th Cir .2000); United States v. Baker, 197 F.3d 211, 216 (1999); United States v. Ables, 167 F.3d 1021, 1027 (6th Cir.1999)."

Excerpt from U.S. v. Kelly decided August 14, 2007:

"Kelly also argues that the ban on semi-automatic assault weapons in section 922(v) violates his Second Amendment right to bear arms. The Second Amendment states that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” We held in Love v. Pepersack, 47 F.3d 120 (4th Cir.1995), that the Second Amendment does not confer an absolute individual right to bear firearms. In that case we adopted the collective rights theory, interpreting the Amendment to protect the states' right to organize and arm militias. Accordingly, a person challenging a federal gun restriction must show that his possession of the gun “bore a ‘reasonable relationship to the preservation or efficiency of a well regulated militia.’ “ Id. at 124 (quoting United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 83 L.Ed. 1206 (1939))."

Excerpt from U.S. v. Hamblen decided June 21, 2007:

"Although the Sixth Circuit has not expressly adopted the Haney four-part test, this circuit has held that “the Second Amendment guarantees a collective rather than an individual right.” United States v. Warin, 530 F.2d 103, 106 (6th Cir.1976). Additionally, the Supreme Court has stated that a valid Second Amendment claim requires a defendant to establish that his possession or use of a weapon “has some reasonable relationship to the preservation or efficiency of a well regulated militia.” United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). Thus, at a minimum, Hamblen must assert a collective right by satisfying Miller."

Excerpt from Andrews v. U.S. decided May 03, 2007:

"We agree with numerous other courts that “the Second Amendment guarantees a collective rather than an individual right.” United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976); accord Stevens v. United States, 440 F.2d 144, 149 (6th Cir.1971); United States v. Kozerski, 518 F.Supp. 1082, 1090 (D.N.H.1981), aff'd mem., 740 F.2d 952 (1st Cir.), cert. denied, 469 U.S. 842, 105 S.Ct. 147, 83 L.Ed.2d 86 (1984); Annot. 37 A.L.R. Fed. 696, 706 (1978) (citing cases). That is to say, it protects a state's right to raise and regulate a militia by prohibiting Congress from enacting legislation that will interfere with that right. The Second Amendment says nothing that would prohibit a state (or the legislature for the District of Columbia) from restricting the use or possession of weapons in derogation of the government's own right to enroll a body of militiamen “bearing arms supplied by themselves” as in bygone days. United States v. Miller, 307 U.S. 174, 179, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). In sum, “he right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights the people may have depend upon local legislation....” Cases v. United States, 131 F.2d 916, 921 (1st Cir.1942), cert. denied, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943)."

where do your draw the line? It seems to me that as we've had a well regulated militia since the end of the Civil War, using that logic, there is no right for anyone to own any weapons. One other question, should the individual people be disarmed, what guarantee do you have, the state will remain free and what's the point of the states being allowed to have well armed militias, as it's illegal for them to challenge federal rule by use of the gun?

One other point For what's it's worth, I'm speaking as someone who doesn't own guns anymore, but I understand the people who view the Second Amendment with all the passion that I view the First. I view the bill of rights as guarantees of individual freedom as a last resort check against authoritarian rule, this is why I bold-ed free state. I believe the Founders were well aware of the rule of the tyrants before them and the Bill of Rights are the ultimate protection for the people against falling in to such a trap.

"The Second Amendment states that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” We held in Love v. Pepersack, 47 F.3d 120 (4th Cir.1995), that the Second Amendment does not confer an absolute individual right to bear firearms."

license to defame people, for example.

"The Second Amendment states that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” We held in Love v. Pepersack, 47 F.3d 120 (4th Cir.1995), that the Second Amendment does not confer an absolute individual right to bear firearms."

I believe to eliminate the right of the people to bear arms for the sake of only the militia to have them would threaten the basis of what the Bill of Rights were intended to be, as added protection for the security of a free state. I view this as a last resort for the people's protection against a totalitarian government taking power.

I also view the entire Constitution as a document or contract setting up a democratic republic or representative government, the government was to represent the people's interest. The Bill of Rights were intended as a guarantee that the government would be held to account to the promises of the Constitution. That can't be done if the people are dis-empowered.

If "the people" in the Second Amendment means "only the National Guard," does that mean "only the National Guard" should "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures?"

Does that mean "only the National Guard" cannot "be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury?"

Does Tenth Amendment then really mean "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the (National Guard).?"


Does the Bill of Rights apply only to the National Guard? That's what you're arguing.

The Second Amendment says "the people" because it means "the people." I'm baffled by all these illiterates who believe that one of the amendments in the Bill of Rights creates a right for the government.

They really meant the first 9 to be as written, just the 2nd one they meant something else.

They soooo tricky like that.


:P

good or for evil, who's to say). No matter how you interpret the Bill of Rights, the courts of this nation have been very consistent in their interpretation. Under the doctrine of stare decisis, if the people or the congress disagree with the courts' interpretation of the constitution, they need to amend the constitution. They don't just appoint a bunch of judges who are happy to ignore a century of legal decisions and come to a wholly different conclusion.

How have various state courts interpreted right to bear arms provisions of those states' constitutions over the last 190 or so years?


The only courts out of step are the federal circuit courts of the last 70 years which have come up with "Collective Rights", "Limited Individual rights" and "States Rights" theories that can not be reconciled with each other, or the actual words of the amendment.

How can "the people" mean something entirely different in the second amendment, than it did elsewhere in the BOR?


Not only that, but the BOR is a set of restrictions on government. Says so right here in the preamble to the BOR:

"THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution"

http://www.billofrights.org/

You can not (with any honesty) read this as a restriction upon the people:

"A well-regulated Militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed"


Shall not be infringed by whom? By the government obviously. Its the government that this non-infringement clause is squarely directed at. What shall not be infringed? The right of the people. What right of the people? The right to keep and bear arms. Why is that? Because a well regulated (well equipped in modern language) militia is necessary to the security of a free state. Because "Government is not reason. It is not eloquence. It is a force, like fire: a dangerous servant and a terrible master". A lesson fresh on the framers minds, but sadly even in this day and age, that context escapes those too blinded by thier own ideology.


Just because some courts (wouldn't matter if it was ALL courts) have been consistant in misinterpreting what the second amendment is and does, and have been doing so for X length of time (wouldn't matter if it was forever), only makes thier rulings legally binding. Not correct. In addition, those courts also rely on a warped reading of Miller.

The federalist and anti-federalist papers make abundantly clear what the people that wrote the amendment intended its meaning to be.

You and the NRA may both feel that the 2nd amendment say one thing. Courts in the US have almost universally concluded that your interpretation would render the first clause of the 2nd Amendment meaningless.

But that is still not the point.

The way that the law works is that once a 1000 cases have decided an issue, the courts are not free to look at the issue with fresh eyes. Instead, the courts are bound to follow the decisions of the previous courts. If you give no weight to the precedents of prior court decisions, that is the very definition of judicial activism.

Whether you ignore the prior decisions and decide a matter in favor of liberals or ignore the precedent and decide a matter in favor of conservatives is beside the point. Both forms of deciding cases contrary to prior precedent are judicial activism.

"If you give no weight to the precedents of prior court decisions, that is the very definition of judicial activism."


Then perhaps you should be looking at precedents BEFORE the era of the "collective rights" theory.

If the Supreme Court simply restated its decision in Miller and found that Heller has a right to keep and bear a handgun so long as it is the type that would be useful for the common defense -How would that be ignoring precedent? How would that be activist?


I don't think you have a clue what you are talking about.