Why do you want to take my gun away from me?

Why do you want to take my gun away from me?

Hey, I don't mind you having guns. In fact, I hope you gun cretins all shoot yourselves and make the world a better place just like Melanie did. No, that's not hate, just a sincere desire to see a better world, which this will be without your sorry arses preventing proper gun laws from being adopted.

I don't want to take the guns away from responsible gun owners. Believe it or not, I have quite a collection of firearms that I keep unloaded and locked. In fact, I have no ammunition in my house!

I would give up my guns if need came to as I have not shot them in 6 years. One needs to practise to be effective in using a firearm: epecially in a self-defence situation.

On the other hand, I can ask you why you fear I would take your gun from you: do you have them to wage war against the government (see US Constitution Article III, Section iii Treason)? Are you an irresponsible gun owner?

What about my right to use a gun to defend myself? Well, if you want to keep a gun for "self-protection", I can't stop you. But you need to be realistic and keep in mind that you are far more likely to harm a family member or yourself than an intruder.

Melanie Hain unfortunately is indeed a good example of what can happen to people who keep firearms for self-defence.

Most stories of defensive gun use are anecdotal rather than based in fact. US department of Justice Statistics show that defensive gun use is actually very rare. Effective Defensive Gun Use very rare.

Any right you have to a firearm would come under a state constitutional provision, not the US Constitution, especially the Second Amendment.

Unfortunately, Federal law trumps state law per Article VI: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Grading the Heller Decisions

I have been wanting to do this for a while. I am taking the point of view that these are my students in a tutorial on the Second Amendment in US Constutional law at a British University.

Let's start with Stephen Breyer:

Steve--Interesting ideas, but not really constitutional or even germane. You're focusing a bit more on policy than law here. This isn't PPE or French, we're studying law here. OK, I am being far harsher than I should on you since you are choosing to defer to the legislature which isn't a bad position. Although see my comments to John R about leadership It's just that you are going out on a limb with this approach. Unique, but I am not sure the founders would have really been too thrilled with this approach or what they would have made of it. Cribbing John S's argument is what saved you from Nino and John R's fate here. Well, at least you didn't write an essay like Nino's since I hate giving "F"s. I know the Second Amendment is pretty confusing. Also, I don't agree that the protection the Amendment provides is not absolute--I mean it does use "shall". I was tempted to give you a D+, but you're getting a C- since I know you can do better. My question is why you didn't? Were you at the Union drinking with the lads when you wrote this figuring that cribbing John's essay would get you off the hook and a better grade? Are you ticked off that John made the cadet corps and not you?

Sorry, not much I can do for you on that front.

John--the best of the "three" essays since the other John cribbed Nino. Although I am really disappointed that you didn't deal with some other aspects of this issue, such as the insurrectionist theory or self-defence being an anachronism aspect. I would have loved to have seen your take on that. You also have a slam dunk with the "legislative intent" aspect from the ratification debates that you failed to address in detail. Other than that, you addressed the issue in pretty much a concise, thorough, and conservative manner. Sorry, but you get an A- because it wasn't perfect. As I said, I would have liked a bit more from you. Did you think that Nino was going to get an A for pure creativity?

Nino--Where did you come up with this? First off, you give stare decisis extremely short shrift. Not to mention your essay was a real surprise for me given all this talk about originalism and trying to decipher the founders' intent in the tutorials. You did everything but that. First off, your concept of legislative interpretation does not gibe with your desire to use the Common Law and the Bill of Rights as a source. Where did you come up with that idea anyway? You take Blackstone and totally misunderstand him in this essay. Instead of using his legislative analysis, you use something from a law review article from 1996! What about Marbury V. Madison as well--how could you have forgotten that one? Another thing, you use an idea of self-defence which originated well after the period in which the Bill of Rights was drafted. To top it off, you neglect any of the material from the ratification debates which show that the right was to protect the Article I, Section 8 militias.

You get an F since it probably won't hurt you in the long run. Sometimes original is just not good. Remember, "because everybody believes it" is a fallacy and does not make a concept correct.

Well, at least you didn't advocate the insurrectionist theory, then I would have really wondered what was going on. I would fail you in this course if you had done that.

Anyway, Nino, you need to reread John's essay as he has a pretty good grasp of the concepts here.

John R--You're supposed to be a leader. There are many responsibilities that come with leadership, one of which is not following. The other is setting a good example. Leadership is a position of trust and belief that requires experience. Additionally, one must make unpopular decisions when one is a leader. You cannot be afraid of controversy, especially if you know that the position you will take is the correct one. I had many reservations when I heard you were made a cadet for that reason, but it's a bit late for me to have you removed from the Corps. That said, I was hoping you would come up with something like the other John's essay especially after the comment during the tutorial about "not wanting the Second Amendment to have baggage". Therefore, I am truly disappointed that you cribbed Nino's essay. You didn't have the decency to come up with your own version of an essay, which at least Steve had the decency to do.

F and I will talk to your regiment's commander about this poor show as it is not worthy of a leader.

Editorial comment--I was going to make the PPE be an in joke for "Steve", but am explaining it for the non-UK and those who haven't attended British Uni types

How original is Scalia?

Since Scalia bases a good portion of his Second Amendment analysis in DC v. Heller on the first clause being "prefatory"--

Nelson Lund, for example, helped shift the focus of Second Amendment interpretation by characterizing its first clause as “prefatory” and its second clause as “operative” — and received a Second Amendment chair funded by the NRA for his work. A Hein Online search for the terms “operative,” “prefatory,” and “second amendment” suggests that Nelson Lund was the first academic to introduce this terminology into the Second Amendment literature. See Nelson Lund, The Past and Future of the Individual’s Right to Arms, 31 GA. L. REV. 1 (1996). Nelson Lund is the Patrick Henry Professor of Constitutional Law and the Second Amendment at the George Mason University School of Law. This position was created thanks to a one million dollar commitment to GMU School of Law by the National Rifle Association Foundation announced in 2003. Press Release, $1 Million Endows Professorship at George Mason University (Jan. 28, 2003). Justice Scalia relies on the distinction between “prefatory” and “operative” in describing the relationship of the amendment’s first and second clause. See, e.g., Heller, 128 S.Ct. at 2789 (“The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause.”).

The problems is that, as has been pointed out, Scalia also uses Blackstone's commentaries on the Laws of England and is bound by the language of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803):

The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction...It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.

Blackstone would look to the proeme (the "prefatory clause") for guidance in interpreting the language (see previous post and this).

So, the idea of "prefatory" and "operative" came about over 200 years after the drafting of the Bill of Rights (1996).

Hardly original.

In defence of Jeffrey Toobin

Some people are surprised that Jeffrey Toobin pointed out that:

“You know, it’s funny, the way that this hearing goes, you would think that Supreme Court precedent is some unchanging thing- that is just the law that is changed. But if you look at the Second Amendment, that’s something that’s changed dramatically over the last- for 50 years, including when I was in law school, which was more recently than 50 years ago- the idea that you had a Second Amendment right to a gun was considered preposterous. The text of the Second Amendment, I believe we have it- we have it in our system- you know, speaks of a well-regulated militia and the right to bear arms.”

I am not surprised. What most people who haven't attended law school don't realise about the "New Scholarship" surrounding the Second Amendment is that it is indeed very recent. You could count the scholarly legal writings about the Second Amendment when I went to law school on one hand!

The civic right was the accepted legal belief.

I asked my conlaw prof why we didn't study the Second Amendment and his response was "if you think things were bad (emotionally) when we studied Roe v. Wade. they get even more heated when discussing the Second Amendment." because the Civic right was the accepted legal precedent.

Roe and Heller

Very little of the criticism this page receives addresses the most valid point of criticism which is how can I be upset about DC v. Heller, but not Roe v. Wade, 410 U.S. 113 (1973)?

There is a simple non-legal answer which is that the most blatant form of tyranny is when a government interferes with a woman's personal choice to have a child. This is a matter between a woman, her doctor, and her significant other with no place for government interference.

I am amazed at how many people want "gun rights" and freedom from government interference, yet balk at abortion. Also, it is amazing that people can call themselves "pro-life", yet have no problem with shooting and killing someone. Or even capital punishment.

I mentioned use-benefit analysis in another post and personally, I find abortion to be far more of a right to be protected than some illusory "gun right".

That said, I have several legal grounds to dislike Heller.

The first is that it is poorly written and does not stand scrutiny. Anyone who has read my posts can see that there are multiple lines of attack of this POS written by a committee.

Secondly, Scalia has had to violate everything he claims to believe in regarding judicial practise. The most egregious of these being that Scalia's dissent in Planned Parenthood v. Casey, 505 U.S. 833 (1992) acknowledged that abortion rights are of "great importance to many women", but asserted that it is not a liberty protected by the Constitution, because the Constitution does not mention it!

In fact, reading Planned Parenthood v. Casey makes me even more curious as to how Scalia could deign to find a right of self-defence in the Second Amendment.

Scalia does everything that he expresses disgust in in his Planned Parenthood dissent.

The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the "concept of existence, of meaning, of the universe, and of the mystery of human life." Ibid. Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected--because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.

Roe v. Wade on the other hand, has some legal basis to support it. The Supreme Court rested its conclusions in Roe on a previously recognized constitutional right to privacy emanating from the Due Process Clause of the Fourteenth Amendment. Justice Blackmun said that the "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

I am of the school that the decision is correct, but for the wrong reason. The First Amendment States that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof".

I extend this right to include exercising personal beliefs concerning the beginning of life. The morality of abortion is grounded in the precise belief of the nature of the fetus in Christianity, Judaism, Humanism as well as other religions and ethical systems,. There is a general consensus that when the foetus becomes a human person, then abortions should be severely limited. The question is when does life begin? But that is an ethical decision. Most would confine abortions at the stage when the foetus is viable to situations that threaten the life of the pregnant woman; a very few would eliminate access to abortions totally. The problem that generates so much controversy is that no consensus exists in society over the point, between conception and birth, when personhood begins.

Jewish beliefs and practice concerning abortion do not neatly match either the "pro-life" nor the "pro-choice" points of view. The general principles of modern-day Judaism are that:
--The fetus has great value because it is potentially a human life. It gains "full human status at birth only."
--Abortions are not permitted on the grounds of genetic imperfections of the fetus.
--Abortions are permitted to save the mother's life or health.
--With the exception of some Orthodox authorities, Judaism supports abortion access for women.
--"...each case must be decided individually by a rabbi well-versed in Jewish law."

Islam allows for abortion in cases where the mother's life is threatened.

Additionally, while the "right to an abortion" may not be specifically mentioned in the Constitution, it is a personal choice relating to health, personal finances, beliefs and other issues that government has no right to intrude upon.

As I said in my use-benefit analysis post, there are some things which are beneficial to society, of which prevention of unwanted children is one.

At this point, I have to reiterate another point I have made in my posts, that the Heller decision did not invalidate gun control laws. The problem is that Scalia did not give any idea of the scope of his new right.

The problem is that there are loads of knee-jerk RKBA people out there who follow rather than think. They are told that there is an individual right enshrined in this decision and then say this is about time. They do not analyse what has been written or think about the implications.

Next post in this series, Wedge issues.

This should be pretty clear, but I think some people don't understand it...

Constitutions, or charters, are documents which set forth the structure and rules of governance. These entities ruled by constitutions can be countries or "artificial persons" (that is corporations, trusts, Companies, Unincorporated institutions, Partnerships, and so on).

That said, the US Constitution is a separate thing from the British Constution. Well, the British Constution isn't really a document, but a set of laws. That is constitutional statutes enacted by the Parliament (E.G, House of Commons Disqualification Act 1975, Northern Ireland Act 1998, Scotland Act 1998, Government of Wales Act 1998, European Communities Act 1972 and Human Rights Act 1998) and also unwritten sources such as constitutional conventions, observation of precedents, royal prerogatives, custom and tradition, such as always holding the General Election on Thursdays.

There is no difference in legal terms between constitutional law and statutory law (i.e. law applying to any area of governance) in the English system. Both can be altered or repealed by a simple majority in Parliament. In practice, democratic governments do not use this opportunity to abolish all civil rights, which in theory they could do, but the distinction between regular and constitutional law is still somewhat arbitrary, usually depending on the traditional devotion of popular opinion to historical principles embodied in important past legislation. For example, several Acts of Parliament such as the Bill of Rights, Human Rights Act and, prior to the creation of Parliament, Magna Carta are regarded as granting fundamental rights and principles which are treated as almost constitutional.

By separating itself from England, The United States broke with English Constitutional law and created its own rules of governance. The law of the United States was originally largely derived from the common law system of English law, which was in force at the time of the Revolutionary War. The supreme law of the land, under the Constitution's Supremacy Clause (VI), is the United States Constitution, as well as laws enacted by Congress, and treaties to which the U.S. is a party. The Constitution forms the basis for federal laws under the federal constitution in the United States; it circumscribes the boundaries of the jurisdiction of federal law along with the laws in the fifty U.S. states and in the territories.

The most important source of law is the United States Constitution. All other law falls under and is subordinate to that document. No law may contradict the Constitution. For example, if Congress enacts a statute that conflicts with the Constitution, the Supreme Court may find that law unconstitutional and declare it invalid. Notably, a statute does not disappear automatically merely because it has been found unconstitutional; it must be deleted by a subsequent statute. Many federal and state statutes have remained on the books for decades after they were ruled to be unconstitutional. However, under the principle of stare decisis, no sensible lower court* will enforce an unconstitutional statute, and any court that does so will be reversed by the Supreme Court. Conversely, any court that refuses to enforce a constitutional statute (where such constitutionality has been expressly established in prior cases) will risk reversal by the Supreme Court. (But who reverses the ninnies when they mess up???)

While Blackstone may have talked about rights, he knew full well they could be repealed by Parliament. This is why the language is "bear arms for their own defense, as suitable to their class and as allowed by law". This is the way rights are treated under the English Constitution. Here today and gone tomorrow.

Again, if one uses Blackstone as a source, one knows that the right to bear arms for defence in England (and by extension the UK and other common law countries) is next to nil as well. This is because the right is "as allowed by law". That is it is under regulation by parliament and not as absolute as the language in the Second Amendment. The Founding fathers were well aware of the tenuous nature of rights under the English system, which did not define or quantify natural rights. They believed that adding a Bill of Rights to the Constitution would limit their rights to those listed in the Constitution. This is the primary reason the Ninth Amendment was included.

On June 5, 1788, Patrick Henry spoke before Virginia's ratification convention in opposition to the Constitution: "Is it necessary for your liberty that you should abandon those great rights by the adoption of this system? Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings—give us that precious jewel, and you may take every thing else!"

The founders knew they were setting up a totally new and different system from the English one under the US Constitution.

Of course, as I read more about Scalia's pretensions at "originalism", the more I worry that he is willing to destroy rights willy nilly in the common law fashion. Sod the fact the US Constitution is a written document: he'll tear it up.

But, I would prefer for my elected officials to do that. There is a reason that Royalty and nobility are unconstitutional.

Unless, of course, I am calling the shots here!

* On the other hand, a non-sensical supreme court can do whatever it wishes until whapped over the head.