5/11 scotus briefs

[pcfixer]

Heller did not say it was a unlimited right though.

This is why a dictionary does not help. Heller did not really provide a methodology in which to evaluate these restrictions. This is the area where the courts are struggling.

okay. Just me you mixing apples and oranges. just saying!

The Second amendment declares that it shall not be infringed … .”

Constitution’s Second Amendment … indicate: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’

natural right of defense “of one’s person or house”—what he called the law of “self preservation.

There are NO limits to the above. I don't see any.
Heller DID define the limits in the paragraph below. Beyond this paragraph. What is the problem in limits?

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

So what are the restrictions in Heller? Surely Heller gave no definition of good and substantial reason to carry. Only restriction not prohibited to carry. This is only a Md state restriction. And not all states have this restriction. 27 states are shall issue.

Oh. BTW, We The People all have a restriction. Called NICS from 1998 (Brady Law)
National Instant Criminal Background Check System (NICS) Services. "
The National Instant Criminal Background Check System, or NICS, is all about saving lives and protecting people from harm—by not letting guns fall into the wrong hands."
Did this restriction really prevent gun violence in USA. Nope. Not at all.

 

[jcutonilli]

okay. Just me you mixing apples and oranges. just saying!

The Second amendment declares that it shall not be infringed … .”

Constitution’s Second Amendment … indicate: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’

natural right of defense “of one’s person or house”—what he called the law of “self preservation.

There are NO limits to the above. I don't see any.
Heller DID define the limits in the paragraph below. Beyond this paragraph. What is the problem in limits?


So what are the restrictions in Heller? Surely Heller gave no definition of good and substantial reason to carry. This is only a Md state restriction. And not all states have this restriction. 27 states are shall issue.

Oh. BTW, We The People all have a restriction. Called NICS from 1998 (Brady Law)
National Instant Criminal Background Check System (NICS) Services. "
The National Instant Criminal Background Check System, or NICS, is all about saving lives and protecting people from harm—by not letting guns fall into the wrong hands."
Did this restriction really prevent gun violence in USA. Nope. Not at all.

I am not understanding what you are saying.

As you stated before

The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.”

You have picked out part of the explanation of what "bear" is referring to in Heller. More specifically what you are referring to is an explanation of what "carries a firearm" means. It helps inform the type of conduct that would be part of the right, but in no way does it define the limits of the right.

There certainly are limits, but how does one apply those limits to new issues. You raised the issue about NICS and indicated that it "is all about saving lives and protecting people from harm—by not letting guns fall into the wrong hands." You also raised the issue about good and substantial with regard to carry. The historical prohibition on concealed carry was designed to prevent guns from falling into the wrong hands. Is this similar enough or are there other criteria that need to be incorporated. Heller does not provide the answer.

 

[pcfixer]

There are NO limits to the above. I don't see any.

The Second amendment declares that it shall not be infringed … .”

Constitution’s Second Amendment … indicate: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’

natural right of defense “of one’s person or house”—what he called the law of “self preservation.

 

[pcfixer]

There certainly are limits, but how does one apply those limits to new issues. You raised the issue about NICS and indicated that it "is all about saving lives and protecting people from harm—by not letting guns fall into the wrong hands." You also raised the issue about good and substantial with regard to carry. The historical prohibition on concealed carry was designed to prevent guns from falling into the wrong hands. Is this similar enough or are there other criteria that need to be incorporated. Heller does not provide the answer.

not limits those are restrictions.

 

[jcutonilli]

There are NO limits to the above. I don't see any.

The Second amendment declares that it shall not be infringed … .”

Constitution’s Second Amendment … indicate: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’

natural right of defense “of one’s person or house”—what he called the law of “self preservation.

You cannot infringe on the right, but if the right does not include concealed carry and you prohibit concealed carry then you are not infringing on the right because the right does not include concealed carry. Infringement does not occur if you exceed the bounds of the right. Infringement only occurs if you are within the bounds of the right.

As previously stated what you are describing is what carrying a firearm means. It is not defining the extent of the right. An example Heller provides is that there is a historical prohibition on concealed carry. Based on a literal interpretation based on text, history, and tradition one could conclude that some type of carry is allowed, but not concealed carry. This is the basis for the Peruta en banc decision.

 

[jcutonilli]

not limits those are restrictions.

I am not sure I see any appreciable difference. Heller is indicating that those are examples of what is not part of the right.

 

[kcbrown]

I am not sure I see any appreciable difference. Heller is indicating that those are examples of what is not part of the right.

What, other than the scope of the right, defines what is part of the right?


Sent from my iPhone using Tapatalk

 

[pcfixer]

You cannot infringe on the right, but if the right the right does not include concealed carry. Infringement does not occur if you exceed the bounds of does not include concealed carry and you prohibit concealed carry then you are not infringing on the right because the right. Infringement only occurs if you are within the bounds of the right.

As previously stated what you are describing is what carrying a firearm means. It is not defining the extent of the right. An example Heller provides is that there is a historical prohibition on concealed carry. Based on a literal interpretation based on text, history, and tradition one could conclude that some type of carry is allowed, but not concealed carry. This is the basis for the Peruta en banc decision.

This is in Heller as above it post #261

Constitution’s Second Amendment … indicate: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’

Sounds like concealed to me.

 

[pcfixer]

I am not sure I see any appreciable difference. Heller is indicating that those are examples of what is not part of the right.

limits means do not go beyond.
restriction means a condition or measure.
And yes there maybe a fine line in meanings were talking about constitution rights and or civil liberty's.

I found this https://www.theclassroom.com/constitution-guarantee-civil-liberties-23007.html

Believe it or not, there is actually a difference between civil liberties vs. civil rights. While most experts believe the Constitution protects both civil liberties and civil rights, many make a distinction between the two. Usually, civil liberties are defined as limitations that have been put on the government in order to protect individual freedom. One well-known example is how the First Amendment guarantees the right to free speech by asserting that the government should not infringe upon it. Other civil liberties examples were written into the Constitution itself. Whenever you are talking about an instance where a person should be able to act freely without interference from the government, you are talking about a civil liberty.

So my friends. Are we being limited by the state and federal government.
Sure seem like that to me.

 

[pcfixer]

What, other than the scope of the right, defines what is part of the right?


Sent from my iPhone using Tapatalk

Just me. I'm not a constitutional attorney.

Text of the BOR. And in this case the Text of Heller.

I like what Justice Kavanaugh says along with Scalila: text and history. "common use"

What Kavanaugh’s record shows: In Heller, Scalia wrote that “the Second Amendment right is not unlimited,” but examples he gave for which weapons are unprotected did not include a blanket statement about “assault weapons.” He instead relied on the “common use” argument, protecting arms in widespread use historically, leaving open the possibility that he, like Kavanaugh, would be against banning semi-automatic rifles.

 

[jcutonilli]

What, other than the scope of the right, defines what is part of the right?

The scope of the right does not define the right itself, it simply defines areas where the right exists. It is analogous to a bounding box. We know that the 2A does not define the scope of the right because it is an existing right. Exactly what the right encompasses has not been fully defined.

 

[jcutonilli]

This is in Heller as above it post #261
Sounds like concealed to me.

What they were describing is carrying a firearm or more precisely "carries a firearm". This is why the sentence begins with "In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute". You can certainly can carry a firearm openly or you can carry it concealed.

You are missing the fact they they latter clarify that the right is not unlimited. One of the issues they pointed out was the historical prohibition on concealed carry. There is no official determination as to how this prohibition should be interpreted, but it certainly suggests that it may not be part of the right.

 

[jcutonilli]

limits means do not go beyond.
restriction means a condition or measure.
And yes there maybe a fine line in meanings were talking about constitution rights and or civil liberty's.

I found this https://www.theclassroom.com/constitution-guarantee-civil-liberties-23007.html

So my friends. Are we being limited by the state and federal government.
Sure seem like that to me.

Are you saying that the 2A is not really a constitutional right it is a civil liberty because it is a limitation that has been put on the government?

 

[jcutonilli]

Just me. I'm not a constitutional attorney.

Text of the BOR. And in this case the Text of Heller.

I like what Justice Kavanaugh says along with Scalila: text and history. "common use"

It the case of the 2A, the text does not define the scope. As Heller stated, it is a preexisting right that is not defined by the text.

 

[kcbrown]

The scope of the right does not define the right itself, it simply defines areas where the right exists. It is analogous to a bounding box. We know that the 2A does not define the scope of the right because it is an existing right. Exactly what the right encompasses has not been fully defined.

So the scope of the right defines the applicability of the right. What, then, defines the contents of the right?

I would argue that the statement of the right itself, along with the meaning of the terms used in that statement, is what defines the contents of the right. Here, the statement is "to keep and bear arms". Well, "bear" has already been defined by the Supreme Court in Heller:

At the time of the founding, as now, to "bear" meant to "carry." See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed.1989) (hereinafter Oxford). When used with "arms," however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998), in the course of analyzing the meaning of "carries a firearm" in a federal criminal statute, Justice GINSBURG wrote that "urely a most familiar meaning is, as the Constitution's Second Amendment . . . indicate: `wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.'" Id., at 143, 118 S.Ct. 1911 (dissenting opinion) (quoting Black's Law Dictionary 214 (6th ed.1990)). We think that Justice GINSBURG accurately captured the natural meaning of "bear arms." Although the phrase implies that the carrying of the weapon is for the purpose of "offensive or defensive action," it in no way connotes participation in a structured military organization.

That leaves "keep", which Heller defines:

We turn to the phrases "keep arms" and "bear arms." Johnson defined "keep" as, most relevantly, "[t]o retain; not to lose," and "[t]o have in custody." Johnson 1095. Webster defined it as "[t]o hold; to retain in one's power or possession." No party has apprised us of an idiomatic meaning of "keep Arms." Thus, the most natural reading of "keep Arms" in the Second Amendment is to "have weapons."

and "arms", which Heller also defines:

Before addressing the verbs "keep" and "bear," we interpret their object: "Arms." The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson's dictionary defined "arms" as "[w]eapons of offence, or armour of defence." 1 Dictionary of the English Language 106 (4th ed.) (reprinted 1978) (hereinafter Johnson). Timothy Cunningham's important 1771 legal dictionary defined "arms" as "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." 1 A New and Complete Law Dictionary; see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham's legal dictionary gave as an example of usage: "Servants and labourers shall use bows and arrows on Sundays, & c. and not bear other arms." See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, § 6, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed.1981 (pt. 1)); see generally State v. Duke, 42 Tex. 455, 458 (1874) (citing decisions of state courts construing "arms"). Although one founding-era thesaurus limited "arms" (as opposed to "weapons") to "instruments of offence generally made use of in war," even that source stated that all firearms constituted "arms." 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (3d ed. 1794) (emphasis added).

This is sufficient to define the right to "keep and bear arms".

What's left, then, is the scope. Heller indirectly defines that as well:

Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.

So the scope of the right to keep and bear arms is that which it was understood to have when the people adopted it. Certainly, the proper time frame for that is no later than when the Constitutional protections were ratified. It is for this reason that text, history, and tradition are the proper references for determination of the scope of the right.

Notably absent from any of that is scrutiny, which is a thoroughly modern invention. The Constitution commands that the right to keep and bear arms shall not be infringed. "Infringed" is a term that clearly must carry the meaning that was understood at the time the 2nd Amendment was ratified, because the entire point of writing it down in the first place is to communicate the intent of the authors and those who ratified it. This automatically eliminates any modern alternative meanings of the term "infringed".

 

[jcutonilli]

So the scope of the right defines the applicability of the right. What, then, defines the contents of the right?

I would argue that the statement of the right itself, along with the meaning of the terms used in that statement, is what defines the contents of the right. Here, the statement is "to keep and bear arms". Well, "bear" has already been defined by the Supreme Court in Heller:

That leaves "keep", which Heller defines:

and "arms", which Heller also defines:

This is sufficient to define the right to "keep and bear arms".

What's left, then, is the scope. Heller indirectly defines that as well:

So the scope of the right to keep and bear arms is that which it was understood to have when the people adopted it. Certainly, the proper time frame for that is no later than when the Constitutional protections were ratified. It is for this reason that text, history, and tradition are the proper references for determination of the scope of the right.

Notably absent from any of that is scrutiny, which is a thoroughly modern invention. The Constitution commands that the right to keep and bear arms shall not be infringed. "Infringed" is a term that clearly must carry the meaning that was understood at the time the 2nd Amendment was ratified, because the entire point of writing it down in the first place is to communicate the intent of the authors and those who ratified it. This automatically eliminates any modern alternative meanings of the term "infringed".

This is what we know from Heller

The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution.

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

Section III details limitations on the right. They rightfully acknowledge that

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms

In other words we do not know the extent of the right because the extent of the limitations has not been fully developed.

 

[kcbrown]

This is what we know from Heller



Section III details limitations on the right. They rightfully acknowledge that

In other words we do not know the extent of the right because the extent of the limitations has not been fully developed.

It is because the right has a finite scope, and because its definition embodies only certain specific things (namely, "keep", "bear", and "arms" all themselves are limited by their definitions) that are themselves limited in nature, that the right is not unlimited.

The Supreme Court explicitly stated what the scope of the right is (that which it was understood to be by those who adopted it, thus making determination of the scope a matter of historical inquiry). It explicitly stated the meaning of the right itself. But the Court also intentionally and unilaterally declared that the right somehow did not encompass certain limitations that they did not show were understood by those who adopted the right to be permissible.

If there is anything about the scope of the right that isn't understood, it's because the proper historical inquiry has not been performed, or it has been performed and what it yielded is highly ambiguous. I'm aware of no such inquiry performed by any of the courts in any of the carry cases where the case was decided against carry. And yet, save for Moore and Wrenn, those cases decided the matter in favor of the state and against carry anyway, and used a method to do so that was not even in existence at the time of ratification.

"Scrutiny" does not inform of either the scope of the right (because it's not an historical inquiry and thus cannot inform of what those who adopted the right believed its scope to be) or the definition of the right. And because the only valid definition of "infringed" is that which was understood by those who penned and ratified the Bill of Rights, "scrutiny" would not be invented for another 150 years at that point, and "scrutiny" yields results that are at odds with that historical definition, it follows that it is wholly improper for the courts to use it to determine infringement. It provides no historical understanding whatsoever, when historical understanding is the only thing that matters.

Hence, the only valid use of "scrutiny" is to determine something other than infringement. But the 2nd Amendment commands against all infringement, whatever "scrutiny" might yield. This renders the "scrutiny" test irrelevant to the question of whether or not a given law which imposes upon the right to keep and bear arms survives a Constitutional challenge. The question of infringement is the only one that matters for that, once it has been determined that the right in question is involved (which involves the definitions of the terms) and that the law operates within the scope of the right (which involves historical inquiry, not "scrutiny").

The bottom line is this: once you have the scope of the right, the definition of the right, and the definition of “infringed”, you have everything that you need to determine whether or not a given law violates the 2nd Amendment. Scrutiny informs of none of that, and therefore is wholly improper for use in the 2nd Amendment context.

 

[jcutonilli]

It is because the right has a finite scope, and because its definition embodies only certain specific things (namely, "keep", "bear", and "arms" all themselves are limited by their definitions) that are themselves limited in nature, that the right is not unlimited.

The Supreme Court explicitly stated what the scope of the right is (that which it was understood to be by those who adopted it, thus making determination of the scope a matter of historical inquiry). It explicitly stated the meaning of the right itself. But the Court also intentionally and unilaterally declared that the right somehow did not encompass certain limitations that they did not show were understood by those who adopted the right to be permissible.

If there is anything about the scope of the right that isn't understood, it's because the proper historical inquiry has not been performed, or it has been performed and what it yielded is highly ambiguous. I'm aware of no such inquiry performed by any of the courts in any of the carry cases where the case was decided against carry. And yet, save for Moore and Wrenn, those cases decided the matter in favor of the state and against carry anyway, and used a method to do so that was not even in existence at the time of ratification.

"Scrutiny" does not inform of either the scope of the right (because it's not an historical inquiry and thus cannot inform of what those who adopted the right believed its scope to be) or the definition of the right. And because the only valid definition of "infringed" is that which was understood by those who penned and ratified the Bill of Rights, "scrutiny" would not be invented for another 150 years at that point, and "scrutiny" yields results that are at odds with that historical definition, it follows that it is wholly improper for the courts to use it to determine infringement. It provides no historical understanding whatsoever, when historical understanding is the only thing that matters.

Hence, the only valid use of "scrutiny" is to determine something other than infringement. But the 2nd Amendment commands against all infringement, whatever "scrutiny" might yield. This renders the "scrutiny" test irrelevant to the question of whether or not a given law which imposes upon the right to keep and bear arms survives a Constitutional challenge. The question of infringement is the only one that matters for that, once it has been determined that the right in question is involved (which involves the definitions of the terms) and that the law operates within the scope of the right (which involves historical inquiry, not "scrutiny").

The bottom line is this: once you have the scope of the right, the definition of the right, and the definition of “infringed”, you have everything that you need to determine whether or not a given law violates the 2nd Amendment. Scrutiny informs of none of that, and therefore is wholly improper for use in the 2nd Amendment context.

You don't seem to be following Heller. For example, Breyer indicated that there were a number of founding era laws that restricted the ability of the people to keep and bear arms. Your arguments seem to suggest that these founding era laws should be found to be unconstitutional because they infringe on the right. The majority opinion suggests that these laws don't really interfere ability of a citizen acting in self defense or would not be enforced against a citizen acting in self defense. They would not be considered infringements because they don't interfere with the ability to act in self defense. The laundry list of examples seems to be consistent with this same type of reasoning. The historic prohibition on concealed carry suggests the same thing. The right is more limited than what you are claiming based on history.

 

[press1280]

Heller did not say it was a unlimited right though.

This is why a dictionary does not help. Heller did not really provide a methodology in which to evaluate these restrictions. This is the area where the courts are struggling.

Then wouldn't the most relevant case law be where we start? Nunn, Chandler, In re Brickey, exc. ? We want to get more original we go with Bliss v. Commonwealth.
But after Kachalsky the other circuits simply follow that and ignore or use the new claim that the antebellum cases not be followed because it was all about keeping slaves in check.

 

[pcfixer]

"Scrutiny" does not inform of either the scope of the right (because it's not an historical inquiry and thus cannot inform of what those who adopted the right believed its scope to be) or the definition of the right. And because the only valid definition of "infringed" is that which was understood by those who penned and ratified the Bill of Rights, "scrutiny" would not be invented for another 150 years at that point, and "scrutiny" yields results that are at odds with that historical definition, it follows that it is wholly improper for the courts to use it to determine infringement. It provides no historical understanding whatsoever, when historical understanding is the only thing that matters.

Hence, the only valid use of "scrutiny" is to determine something other than infringement. But the 2nd Amendment commands against all infringement, whatever "scrutiny" might yield. This renders the "scrutiny" test irrelevant to the question of whether or not a given law which imposes upon the right to keep and bear arms survives a Constitutional challenge. The question of infringement is the only one that matters for that, once it has been determined that the right in question is involved (which involves the definitions of the terms) and that the law operates within the scope of the right (which involves historical inquiry, not "scrutiny").

The bottom line is this: once you have the scope of the right, the definition of the right, and the definition of “infringed”, you have everything that you need to determine whether or not a given law violates the 2nd Amendment. Scrutiny informs of none of that, and therefore is wholly improper for use in the 2nd Amendment context.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3149162
Robert T. Miller
University of Iowa College of Law; New York University

The problem of what should count as a compelling governmental interest may seem intractable because the phrase tends to imply that government has many interests, some of which are of greater normative value than others. Thus, any account of which governmental interests are compelling would seem to presuppose a robust normative theory of government — that is, a whole political theory and maybe even a whole moral theory as well. Obviously, courts are not in a position to articulate such theories, and, even they were, any such theory would be highly controversial.

So the question bears if the USSC doesn't use "compelling government interest"-- Why can state governments use this phase?

https://www.law.cornell.edu/wex/strict_scrutiny

Other Applications
The application of strict scrutiny, however, extends beyond issues of equal protection. Restrictions on content-based speech, for instance, are to be reviewed under the strict scrutiny standard as well. Notably, the Supreme Court has refused to endorse the application of strict scrutiny to gun regulations, leaving open the question of which precise standard of review is to be employed when addressing the Second Amendment.

So that leaves the lawyers and courts to evaluated a law (2A) Based on a literal interpretation based on text, history, and tradition.