Many of us are gearing up with columns previewing the Court’s October term and have highlighted the upcoming arguments over bans on AR-15s and semiautomatic weapons out of the Seventh Circuit in Chicago (Viramontes v. Cook County) and the Second Circuit in New York (Grant v. Higgins). In a recent column, Professor Rory Little suggests that these cases will strike at what he considers a glaring flaw in the Heller decision that recognized the individual right under the Second Amendment. Professor Little repeats a common claim about Heller that some of us have challenged. I wanted to briefly address that controversy again.The column appeared in Scotusblog, a respected site that offers tracking and commentary on pending Supreme Court cases. Here is the portion that I wanted to address:The 2008 Heller decision, which changed precedent to find a Second Amendment right to own handguns for self-defense, was decided 5-4. To me (and others) it is clear that Justice Antonin Scalia had to include various qualifiers in his opinion, or he would have lost one or two of his five votes and Heller would have come out differently. Part III of the opinion was clearly added to capture, or keep, the narrow but earth-shattering majority, and ought to be viewed as the binding judgement of the court. Specifically, in addition to listing various “longstanding prohibitions on the possession of firearms” left undisturbed, part III said “we also recognize another important limitation on the right to keep and carry arms. … the sorts of weapons protected were those ‘in common use at the time’” (quoting United States v.Miller, a 1939 precedent upholding bans on machine guns). I add emphasis on “at the time,” because the Viramontes briefing all but ignores what the court said was this “important limitation.”
As the solicitor general’s brief notes, “the AR-15 rifle was developed in 1956,” and the first semiautomatic rifle of any kind was sold in 1903. Thus, while they may be the “most commonly owned rifle[] in America” today (albeit by less than 10% of all Americans), semi-automatic rifles were undisputedly not in common use “at the time” the Second Amendment was adopted in 1791. Indeed, as the SG’s brief also explains, it is the modern technological developments in the AR-15 that makes it popular today. (This is also why they are commonly used in mass-shootings.) Rather, the solicitor general’s Viramontes brief subtly changes the language, saying (on page 21) that the proper Second Amendment test is whether AR-15s “are in common use” today (again, my emphasis). This radically departs from the doctrinal limits that were essential to cementing the Heller result. In his 2025 dissent from denial of certiorari, Kavanaugh (joined by Justice Samuel Alito) adopted this same semantic transfiguration of Heller (changing “were” to “are”) – an error (or strategy) presaged in Kavanaugh’s 2011 Circuit judge dissent when Heller was remanded in 2011. Many folks will be listening on Dec. 2 to see whether a majority of justices will agree that Heller did not actually mean what it appeared to say.
As others have noted, this is an old saw repeated by many critics of Heller.
Justice Scalia anticipated this argument in the actual Heller decision. He wrote:
“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way…Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
As I recently discussed in a column, this issue came up nine years ago when Massachusetts attempted to ban stun guns. The Court issued a per curiam opinion in Caetano v. Commonwealth of Massachusetts that sent back a case to the First Circuit and rejected the logic that they were not in common use at the time of the Second Amendment’s enactment. The Court pointed out that in District of Columbia v. Heller, 554 U. S. 570, 582 (2008), it expressly rejected that argument and held that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” It also rejected two other rationales. (Notably, the Court is considering another stun gun case in Calce v. New York after the Second Circuit failed to heed the warning of the Court).
Notably, a new challenge has been filed in Connecticut over a ban of convertible handguns. It is likely to raise many of these same issues. The Firearm Industry Trade Association filed a lawsuit this week that will be before the district court as the Supreme Court hears arguments on the two pending cases.
I obviously disagree with Professor Little and other experts who raise this claim. There are, of course, good-faith arguments against the Heller decision. Some like Professor Little view that decision as “earth-shattering.” I do not. I still believe the Court was correct in viewing this as an individual right. However, I do not believe that this claim of a glaring and hypocritical contradiction between Heller and later cases is fair or supported. There was no sleight of hand in “changing ‘were’ to ‘are.'”
This really does not come down to a change in verbs. While many hope that packing the Supreme Court will result in an immediate reversal of Heller, it is unlikely to turn on the word “were.”
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
Off topic, but I would be immensely grateful if someone out there could show me how to left-justify the text within a blockquote. I have yet to figure that one out.
What about keeping a gun in your home as a right under the 5th/14th Amendment? You have the Right to Life, Liberty…. When you live in a bad area, or in any area really, and bad men are armed with guns, or you are old, as I am, or female, how is it not a God given right to be able to defend you and your family’s lives?
You are awakened at 3 am by the feel of cold steel against your temple.
It’s the Smith & Wesson revolver the burglar has taken from your night stand. He tells you to be quiet so the sound of a gun shot doesn’t wake the children.
@Anonymous–
And that’s when your 14-year-old son emerges from the darkness armed with the .22LR rifle that you–his father–gave him for his 12th birthday, and shoots the burglar multiple times in the back. End of threat.
@Anonymous, forget your hypothetical scare-scenarios. They’re ludicrous. For every “hypothetical” that you can come up with, I almost certainly can come up with an effective “counter-hypothetical.”
The robber would have been smarter grabbing a kitchen knife or baseball bat from the living room closet. Want to ban those, too?
Don’t you love how the anti-2A panic mongers always concoct disaster scenarios — but never self-defense ones.
As in:
You are a woman walking alone at night to your car. A would be kidnapper/rapist jumps out from behind a parked car, brandishing a knife. You pull out your concealed .38 and shoot him dead.
No kidnapping. No rape.
@Sam–
Great post!
@Anonymous–As I stated above, for every ludicrous hypothetical scenario that you can some up with, someone–like Sam–will come up with a very effective counter-scenario.
Thanks.
That anti-2A zealots have zero regard for the safety and lives of the innocent.
What a world. Bars on windows and doors, cameras and surveillance equipment installed. The people are in jails as criminals roam.
You are not silent, but you reached for the burglar. He pulls the trigger and finds that the gun is not loaded. Then you beat the sh1t out of him.
Are you that burglar?
You are awakened at 3 am by the feel of cold steel against your temple.
It’s the Smith & Wesson revolver the burglar has taken from your night stand. He tells you to be quiet so the sound of a gun shot doesn’t wake the children.
Nothing can prevent that. But it’s an extremely uncommon scenario. It’s certainly not a reason not to have a weapon in your night stand. The likelihood of that happening is much lower than the likelihood that you will need to use that weapon to defend yourself and your family.
You are trying to perpetuate the deliberate leftist lie that gun owners are more likely to be shot with their own gun than they are to use it in self defense. That just has no basis in fact.
@hullbobby–
You have answered your own question: The right to self-defense is a natural–or God-given–unalienable right that has been recognized by virtually all of humanity from time immemorial. (Except, unfortunately, for the Brits and others of their ilk, who have done their very best to expunge the right to self-defense.).
And the natural right to keep and bear arms is an absolutely necessary adjunct to the natural right to self-defense.
And although not explicitly written into the Constitution, the right to self-defense is entirely protected by the Ninth Amendment:
So, IMHO, keeping a gun in your home for self-defense is entirely protected.
I have long been puzzled by the wording of the second amendment, where it starts with “A well regulated Militia”. I recently read something that clarifies in my mind why it was written this way. Back in that era, when a militia was formed by enrolling private citizens, those citizens were expected to supply their own firearms and other equipment. Specifically:
“The Militia Act of 1792 was enacted only months after the Second Amendment was ratified. It required enrolled militia members to “provide himself with a good musket or firelock,” along with a bayonet, ammunition, flints, and other equipment; a rifle with appropriate ammunition was also permitted. Members were required to appear with that equipment when called for training or service.”
Back in that era, I imagine the major concern was protecting the young country from external enemies. These days, my major concern is protecting the country from those who would throw out our founding documents. If they do gain power, through an uninformed electorate and mass mail-in voting, the only thing holding them back from confiscating our rights would be the fear of an armed citizenry.
Well regulated meant disciplined, organized, led, and adequately prepared with training to fight and win. This has almost nothing to do with individualistic gun culture, which at its worst brings on clandestinely-planned, neurotic/psychotic killing sprees of innocent citizens. This suggests we could benefit from law supporting a father–>son gun culture, where all young gun owners require an older sponsor-mentor until age 25. It’s well established that the mature mind is better at assessing risk and managing conflict. The sponsor would co-sign for liability should the gun be used illegally — that feature alone could be used to strip youth gangs of firearms, since no middle-aged adult would be willing to sponsor a young thug’s gun ownership.
If someone is too young to be protected by the 2nd amendment then how can he not be too young to be protected by the 26th? And yet the 26th explicitly says it protects everyone over 18. Therefore a fortiori the 2nd must also protect everyone over 18.
Recall that one school massacre was by a guy who shot and killed his mother who had bought the gun for him.
I don’t believe liability would matter much.
The best approach would be to limit the use of guns in TV shows where the use of the gun is to solve some problem. It’s worse than smoking was in that the representation is so ridiculously different from reality. A guy gets shot in the should and the next moment someone repairs them using pliers to pull out a bullet. Then, wounded shoulder and all, the guy is shown with a gun in his good hand running down the bad guy.
This continuous representation in advertising, on TV, and in movies that guns are often the main problem solver. Bad guys have a gun, good guys solve this problem by getting a bigger gun.
This would be a start on changing the basic concept that guns solve problems; that killing people or wounding people or threatening harm to people and that having a gun defends against another gun the way that one sword can be a defense against another sword.
I fully agree with you!
Every American should be required to possess a firearm and ammo. It works splendidly in Kennesaw, GA.
The US town where it’s the law to own a gun
Kennesaw’s gun law plainly states: “In order to provide for and protect the safety, security and general welfare of the city and its inhabitants, every head of household residing in city limits is required to maintain a firearm, together with ammunition.
https://www.bbc.com/news/articles/czx505p5n59o
Seatbelts save lives.
AR-15s extend them (pun intended)
The Kennesaw, GA, law also exempts those who oppose owning firearms. The law is just symbolic support for the Second Amendment. It has never been enforced.
The second amendment was specifically worded the way it is, as protecting a right rather than imposing a duty, precisely so as not to be understood as forcing Quakers and Mennonites to violate their consciences by bearing arms.
The second amendment defines a purpose for having that right.
# splits into 3 parts as we know, purpose- freedom of state, a free state is a necessity. Part 2 is how- right to have and store and to carry arms. Part 3 is penalty or else piece- shall not be infringed, chipped away, eroded.
The individual retains the right of freedom. You’ll need an amendment- no individual shall have the right to be free. /s
^^^ As to taser as an armament? To distinguish it from a toy is appropriate. It is not intended to kill. It would require the same care as guns to prevent misuse?
How many armed security guards should Ilhan Omar, Barbra Streisand, and Michelle Obama be allowed to have?
Merriam-Webster
arm
noun
1a: a means (such as a weapon) of offense or defense
especially : firearm
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The right to keep and bear arms shall not be infringed. No usage or purpose for keeping and bearing arms is prescribed or precluded in the 2nd Amendment—it simply and evidently addresses and allows “arms” to be kept and borne. Every last person mentioned in this article is fully aware of this.
The proponents of infringements against “arms” in American fundamental law are engaged in subversion, nullification, sedition, insurrection, and treason as direct and mortal enemies of the United States and must be corrected with extreme prejudice.
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2nd Amendment
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.
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“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
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“…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”
“…men…do…what their powers do not authorize, [and] what [their powers] forbid.”
Perhaps there are a greater number of criminals in the US or those not knowing murder is forbidden by law, I won’t quibble military or law enforcement.
I support all of the Constitution, including the 2nd Amendment.
Many 2nd Amendment gun rights supporters were totally silent when the George W. Bush Administration was violating the 1st, 4th, 5th, 6th, 7th, 8th, 9th, 13th, 14th and 15th Amendments – not a peep out of you guys!
It’s not an a la carte menu, the U.S. Constitution is a package deal – you either strengthen or weaken the entire package.
It’s not too late, you can contact your member of Congress today and tell them to protect all constitutional rights – which will strengthen and protect the 2nd Amendment as well.
The singular American failure is the judicial branch, with emphasis on the Supreme Court. The rights and freedoms in the Constitution are absolute. The Supreme Court has illicitly amended the Constitution and Bill of Rights since Lincoln was allowed to deny not prohibited and fully constitutional secession—something the American Founders conducted against Britain—not to mention the fact that Social Security and Medicare do not constitute Article 1, Section 8’s “general Welfare” as they address merely 18.7% of the population and are in no way “general.”
The correction that MUST be made in America relates to the completely FAILED judicial branch.
How was the 13th amendment violated?
How were any of them violated. He’s just making sh*t up. As usual.
I’d be interested if anyone has an argument on how 1A’s free speech guarantee was intended to apply to modes of communication not yet invented in 1789, but 2A’s “right of the people to keep and bear Arms” was not intended to apply to types of arms not yet invented in 1789.
As someone who would like to see more restrictions on the 2A, I think this is an excellent question worthy of a good-faith and respectful discussion if you are willing? To your, and the Professor’s points, it stands to reason that amendments must account for changing technologies and advancements over time. But is there a limit, or a boundary with either? It’s certainly easier to play this out with guns. Society has deemed that automatic weapons manufactured after 1986 should not be legal – but should that be reversed by this same logic? What about ghost guns or 3D printed guns? they are a product of current technological advances and individual rights but are banned, I believe? Where is the limit?
Anonymous – thank you for the thoughtful response. It would be great if you used a screen name since so many anonymous commenters are uncivil and merely trolling. In any case, yes, 2A is not absolute (e.g., think bazookas), as virtually no constitutional rights are absolute; even 1A is not absolute as certain types of speech, such as fraud or terroristic threats, may be regulated. It seems you and I agree, though, that both 1A and 2A are not limited to the technology in existence in 1789. I was wondering if there was any principled way to say: “1A is not limited to the technology extant in 1789, but 2A is.” At the moment, I cannot see any principled way to say that.
not infringed = absolute. Why not bazookas? Landmines? Hand grenades?
The purpose at the time was to avoid paying for a standing army, one that might be used by a bad President against the people of the USA.
Now there is a standing army. There is no need for the individual right as there is no means by which civilians in America could stop the American military. A few nukes against major cities and destroying power plants to disable electricity, fuel, and water; within a year the US could see 200 Million dead of starvation.
Now there is a standing army. There is no need for the individual right
Stop right there. The individual right to keep and bear arms is inherent in the human condition. It’s not granted by the 2A, it’s one of the unalienable rights with which the Declaration of Independence say the Creator endowed each human being. The need for a militia to secure a free state is not the reason the right exists, it’s merely the reason there’s a whole amendment just to protect it. Even if that need were to disappear the right would remain intact, as would people’s need to arm themselves, not for the state’s protection but for their own.
there is no means by which civilians in America could stop the American military.
That is BS. Ask the Afghans how they did against the might of the Red Army at its peak.
A few nukes against major cities and destroying power plants to disable electricity, fuel, and water; within a year the US could see 200 Million dead of starvation.
Sure, but the US army is never likely to use nukes against its own people. Any order to do so will almost certainly be disobeyed. With extreme prejudice.
@milhouse–
An excellent post! Yes, the Founders were great believers in “natural rights”–as am I–and they expressed that belief in the Preamble to the Declaration of Independence:
. (My bold emphasis.)
With regard to protection of an individual right to keep and bear arms, then, the Second Amendment really is quite irrelevant.
Another natural “unalienable right” that is not written into the Constitution is the right to self-defense which has been accepted by almost all of humanity from time immemorial. (Our British brethren across the pond, however, have done their very best to expunge that right; how very sad.)
But though not explicitly acknowledged in the Bill of Rights, the natural right to self-defense is, nevertheless, protected by the Ninth Amendment:
And the “right to keep and bear arms” is a necessary adjunct to the “unalienable right to self-defense.”
@Anyone–
I would be immensely grateful if someone out there could show me how to “left-justify” the text within a blockquote. I have yet to figure that one out.
With regard to protection of an individual right to keep and bear arms, then, the Second Amendment really is quite irrelevant.
No, it isn’t. The right exists independently of the constitution, but without the 2nd amendment there would be no protection for the right. Congress could infringe it with impunity. The 2A is what forbids it from doing that.
The 9A is not adequate protection because we’d first have to prove that the RKBA was a generally accepted right at the time. It was, but we’d have to prove it. The 2A saves us that burden by explicitly stating that it’s one of the rights that’s protected.
Why can’t I keep phosgene gas to defend myself? Perhaps a nerve agent? Those rights are certainly infringed.
The Afghans already existed at a subsistence level – their victories over Russia and America are because those armies did not exist at a subsistence level. The population there is paltry in density because that is all that subsistence living can manage. That same density is what would eliminate 200 Million Americans. Cut off a few power plants and everyone in Arizona is either dying or leaving. Cut off more and leave no where to go and there’s mass death.
The problem with “the army never” is that armies have. Having an overabundance of guns in civilian hands won’t make up for the capacity at hand in the US military. That ship literally sailed more than a century ago.
God didn’t give people guns. There is no right to have them. There’s a rule that slave owners felts was important to prevent what happened in the American Civil war where the Union Army came and took their slaves away. How did the right to bear arms do for the Confederacy?
There is no need for the individual right.
First, that’s false.
Second, it’s irrelevant. When the Constitutional guarantees certain rights, that guarantee is never dependent on whether there is a perceived “need” for the right.
The Constitution is law. It is the foundational law of America that can only be changed through the amendment process. 2A does not have any text along the lines of “assuming there is a need for this right.” Therefore, the law that governs the USA does not include a “need” predicate.
“The purpose at the time was to avoid paying for a standing army . . .”
More Leftists just making stuff up to usurp rights.
There was a standing army. The U.S. was established in 1775. And subsequently, congress repeatedly approved *increases* in the standing army.
“The U.S. [Army] was . . .”
Sorry, Sam, you are wrong. There was no standing army. And the founders were all of the mind that there should never be a standing army. Armies were to be raised only temporarily, as the need arose for them. That’s why the constitution says appropriations for armies can’t be for longer than two years.
But they very quickly changed their minds and realized that doing without a standing army was a pipe dream. By 1790 they were legislating for the US Army in the expectation that it would be permanent.
I think Sam is correct. The Continental Army was disbanded at the end of hostilities. Before that happened, Washington proposed a peacetime army that was rejected, but shortly thereafter, Congress authorized the funding for a small peacetime army, mostly for the frontier, that lasted through and after the passage of the Constitution.
The above is from S. Meyer
2A is not absolute … even 1A is not absolute
The language of both amendments leaves no room for doubt that they are absolute. What is not absolute are the rights that they protect. Congress may not, under any circumstances, abridge the freedom of speech. But what is that freedom? That freedom never included a right to defraud people, or to defame them, or to threaten them or verbally assault them. No one in 1789 thought there was any right to do such things to people. Therefore when they prohibited Congress from abridging the freedom of speech they did not prohibit laws against these things, which are not free speech in the first place.
Likewise Congress may not, under any circumstances, infringe the RKBA, but that right does not necessarily include all things. There may (or may not) be exceptions, not to the amendment but to the underlying right. There is probably no right to own an atomic weapon, so a law preventing such ownership probably does not infringe that right, and therefore does not violate the absolute prohibition in the 2A.
Milhouse – agreed. My description lacked precision. You “precised it up” as they say nowadays.
The way you’re using the word “absolute” is confusing. It commonly means exception-free. You’re allowing exceptions as necessary, but requiring 2A can never be suspended or allowed to lapse. But how different are those? If 2A were to be slowly undermined, wouldn’t it be by 1000 cuts put forth as exceptions?
The 2A can never have exceptions. But what does it say? It says the RKBA may not be infringed. That means never. But laws that don’t infringe it are perfectly fine. Congress can pass any law that doesn’t infringe the RKBA (and is otherwise authorized by the constitution).
What kind of laws infringe the RKBA? I suggest that a law against owning nuclear weapons probably doesn’t infringe it. Likewise a product safety law that bans dangerous weapons (and I mean weapons that are inherently dangerous to the user, such as the SIG P-320) would not infringe it. Therefore the 2A would allow them.
The First Amendment does not grant the right of Free Speech; it recognizes that it’s God-given and it prohibits abridging it (or tries to prohibit it, thank you very much to Joe Biden for his Disinformation Governance Board). The Second Amendment does not grant the right to keep and bear arms; it recognizes that it’s God-given and it prohibits infringement. The national debate about these Amendments essentially boils down to how passionate you are about John Lennon’s song “Imagine” … no heaven, no hell, above us only sky, live for today.
Let God speak for himself. Unless God says it’s OK, then leave God out of the conversation.
Will “nature” do for resident heathens?
Count me among the heathens — proudly.
You cannot defend individual rights based on a mystical foundation that is beyond facts, evidence, proof, reason — a foundation that its practitioners admit is accepted on faith. “Just believe” is not an argument.
When your foundation is quicksand, your defense of rights crumbles — as it has for the last some 150 years.
The Declaration of Independence brings him into the conversation. It explicitly cites Him as the source of our rights.
Might as well be built on Santa Claus.
As someone who would like to see the Constitution nullified, you are a direct and mortal enemy.
I understand that China is nice this time of year.
Americans must be fully and equally prepared to oppose and change an oppressive government.
This is Preposterous Equivocation and Prevarication at its worst!
Please use the constitutional amendment process for your purpose, not this tergiversation.
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Article V
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Society has deemed that automatic weapons manufactured after 1986 should not be legal – but should that be reversed by this same logic?
Absolutely. There is no principled argument to be made for this ban.
What about ghost guns or 3D printed guns?
What about them? Why on earth would we want them banned? Even you, who admit that you “would like to see more restrictions on the 2A”, why would you want these items restricted? They are in no way more dangerous than any other weapon in common use. There is no rational basis for banning them, and so the ban on them is unconstitutional.
I think the framing of your question fails to recognize that the First Amendment currently does not apply uniformly to all modes of communication. Kovacs v. Cooper (1949) – Court upheld a ban on vehicles using sound amplifiers. Justice Jackson: “each method of communication is a law unto itself.” Red Lion Broadcasting Co. v. FCC (1969): Court held that the government can heavily regulate broadcast speech in a way that would be completely unconstitutional if applied to newspapers or websites because the physical radio spectrum is finite.
The fact that the Bill of Rights was never incorporated as a single package but was instead applied to the states piecemeal over more than a century via the Due Process Clause of the Fourteenth Amendment provides a strong structural argument that treating the First and Second Amendments as identical, interchangeable “clones” is a constitutional misunderstanding. Each right carries its own unique historical boundaries and regulatory traditions:
The First Amendment was fully incorporated against the states in the 1920s and 1930s (e.g., Gitlow v. New York, 1925). Over the next century, states and federal courts co-developed a massive, deeply entrenched tradition of protecting robust, near-absolute free speech to sustain a democratic society.
The Second Amendment was not incorporated against the states until 2010 in McDonald v. City of Chicago. Because states were free to regulate firearms almost entirely as they saw fit for the first 220 years of American history, a completely different, much more restrictive “history and tradition” of local gun control developed. Because the Second Amendment entered the states’ legal ecosystems a century later, and under completely different historical conditions than the First, forcing them into the exact same rigid framework ignores the reality of how our federal system actually grew.
In his dissent in McDonald v. Chicago (2010), Justice Stevens explicitly used the piecemeal nature of incorporation to argue against treating the Second Amendment like the First. He argued that owning a gun is a physical act that directly threatens public safety in a way that holding a political opinion does not. Therefore, incorporating 2A piecemeal should mean allowing states vastly more leeway to restrict modern weapons than they are allowed when restricting modern speech.
If we truly believe that the “history and tradition” matters, we should acknowledge the different histories and traditions of each Amendment rather than trying to manufacture some artificial sense of uniformity.
The question I asked was more limited. To rephrase:
If one believes that “speech” as used in 1A includes modes of communication that had not yet been invented in 1789, on what principled basis can one conclude that “arms” as used in 2A is limited to the types of arms extant in 1789?
the First Amendment currently does not apply uniformly to all modes of communication.
That is bulldust. It’s an outright, treasonous lie. The 1A applies uniformly to all means of communication. Generally applicable noise ordinances, that were not enacted to suppress speech and are completely content- and viewpoint-neutral, do not infringe the freedom of speech. You can’t make noise above a certain number of decibels on a residential street between such and such hours, regardless of what the noise is; but the moment you make any exceptions that depend on the content or the viewpoint expressed, the prohibition becomes unconstitutional.
The exception for broadcast speech is based entirely on the notion that the broadcast spectrum belongs to the government, so the freedom of speech doesn’t exist on it, just as it doesn’t exist on any private property. I have the right to protest anything that I care to, but not on your property. You can say that you give permission to use your property for Republicans but not for Democrats. Likewise the government can do much the same with the “public airways”.
Because states were free to regulate firearms almost entirely as they saw fit for the first 220 years of American history, a completely different, much more restrictive “history and tradition” of local gun control developed.
This is a fundamental misunderstanding of what “history and tradition” means. The only history and tradition that matters is that which existed when the 2A was adopted in 1791. The right it protects means what it meant in 1791, no more and no less. The same applies to the 1A; it protects the freedom of speech as that was understood in 1791.
Likewise the 14A means what it meant in 1868. No “history or tradition” after 1868 matters in any way. Incorporation didn’t happen piecemeal, it was merely recognized piecemeal. How else could it be? If you say that the 2A wasn’t incorporated until 2020, then how did it becomes incorporated then? Are you seriously claiming that the courts have the power to amend the constitution?! Where in the constitution are they granted that power?
No, it’s impossible. The only way any amendment can be incorporated into the 14A is if it was incorporated in 1868, it’s just that people didn’t realize it at the time, and mistakenly thought the states could continue to violate it. If it truly wasn’t incorporated then, and the states were right to violate it then, then it’s still not incorporated and it’s fine for the states to violate it now.
Modes of communication: SCHMODES OF COMMUNICATION—letters, public speaking, the printed press, published pamphlets and books, etc.—they were all media then, and they’re all media now, including electric.
Same difference in AI. There was a high-tech industry in 1789 and no regulation of the high-tech industry was enumerated in Article 1, Section 8, by the Founders and Framers.
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AI—Artificial Intelligence
Congress has absolutely NO power to regulate the technology and software industry per Article 1, Section 8.
The technology and software industry in 1789 would have been equivalent to the precision-manufacturing and scientific-instrument industry.
Article I, Section 8, makes no mention of regulating that sector or any similar sector.
Any attempt to regulate AI would be irrefutably unconstitutional, understanding that the Constitution limits and restricts government while providing maximal freedom to individuals.
Professor Turley’s dismissal of the debate over “were” versus “are” as a mere change in verbs ignores the foundation of modern conservative jurisprudence, where single words and tenses routinely dictate the law of the land. Treating textual precision as sacrosanct in statutory cases like Bostock or Pulsifer while branding it an insignificant detail in Heller exposes a convenient double standard.
On the contrary, trying to pretend there’s a distinction there, when the decision itself explicitly rejects any such distinction, is outright dishonest. And yes, John Paul Stevens was a dishonest fraudulent charlatan, and a traitor to the constitution he swore to uphold. Nothing he wrote, on any topic, should be taken seriously. Just like you.
OUCH…
george is going to be mad at you Milhouse. (-:
If only we had true constitutional members of SCOTUS then these cases would have been resolved with either Bruen or Heller in declaring that all gun control laws are infringements and are hereby declared null and void. But NOOOOO! We can’t have common sense rulings now can we. I sincerely hope that these cases finally resolve that the 2nd means exactly what is says.
Organized crime agrees strongly with your position.
A gun is a tool, no better or worse than any other tool. It is as good or bad as the man using it.
-Shane
OldManFromKS,
“The Forgotten Winchester is a Winchester Model 1873 lever-action centerfire rifle that archaeologists discovered in 2014 leaning against a juniper tree in Great Basin National Park, Nevada.
The gun was manufactured in 1882, but nothing is known of its abandonment. The bottom of its stock was buried in 4–5 inches (10–13 cm) of accumulated soil and vegetation, and a round of ammunition stored in its buttstock dated between 1887 and 1911, indicating that it had been resting there for many years.”
https://en.wikipedia.org/wiki/Forgotten_Winchester
And for all those years, not once did that gun get up and commit a crime or a mass shooting.
On that basis, no people are criminals because not all people are criminals.
Just outlaw organized crime and crimes committed with guns. There, problems solved.
Terrorist cells watching this case, too.
Antifa terrorist cells watching this case, too.
Fixed it for you.
43,000 highway deaths annually.
BAN CARS!
Organized crime agrees strongly with your position.
No, it doesn’t. Criminals love gun restrictions, because they only affect victims, not predators. A gun is an equalizer, and criminals don’t like equalizers. They like having the advantage over their prey. Not only do they ignore gun laws, but even if you were somehow to manage to disarm them they’d still be happy, since their victims would be disarmed too, which means they would be at a permanent advantage. Criminals don’t need guns to commit crimes; all they need is for their victims not to have guns. That’s why if you could push a button and make every firearm in the world disappear, you’d be the best friend of criminals and the deadly enemy of all decent people.
Milhouse.
We can see the guns laws in LA didn’t stop these two.
___________________
The North Hollywood shootout, also known as the Battle of North Hollywood,[2] was a confrontation between two heavily armed and armored bank robbers, Larry Phillips Jr. and Emil Mătăsăreanu, and police officers in the North Hollywood neighborhood of Los Angeles on February 28, 1997. Both robbers died during the shooting, twelve police officers and eight civilians were injured, and numerous vehicles and other property were damaged or destroyed by the nearly 2,000 rounds of ammunition fired by the robbers and police.
It was speculated during news reports that Phillips had legally purchased two of the Norinco Type 56S rifles and then illegally converted them to be fully automatic. However, as Phillips was a convicted felon, it was not legal under 18 U.S.C. § 922(g)(1) for him to possess, let alone purchase, a firearm.
This is why having guns laws written by gun manufacturers aren’t a good way to stop gun crime.
Note as well that the response from LAPD with numerous guns was fundamentally unable to stop the bad guys from shooting. Not one police bullet stopped a bullet fired by the bad guys. I think they either ran out of ammunition or their guns malfunctioned allowing the cops to finally shoot them in the legs and then LAPD prevented medical teams from gaining access to them, allowing them to bleed to death rather than face arrest.
As their heads were uncovered, a deer rifle and a scope would have been sufficient to end the interaction. Instead LAPD used it to militarize the police; essentially buying stuff that would have made little difference on that day.
Guns are such equalizers that over 100 cops with guns were unable to stop one person with a gun while he killed little kids as they waited for the shooting to stop. Trained law enforcement, up to 2 guns each, and still not enough firepower to deal with one person.
Technically – the did deal with a few people – they used their guns as a threat to stop parents from going into the building to save their children, a rescue the cops were desperate to stop.
“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
Keeping guns from violent felons released from prison, heck, even in prison, is an infringement.
With more and more political activists openly celebrating the death of opponent, any gun ruling may fall on deaf ears. As well, even now I feel certain gun sales are on the rise (they always do). Should a ban be ruled, we may see widespread civil disobedience about surrendering firearms.
More likely, liability insurance will be required for certain types of gun ownership. The value of those weapons will then go negative, and folks will start selling them. They’ll end up exported to other nations. Much easier than trying to confiscate weapons.
Seems reasonable perhaps to require insurance but the poor can’t afford insurance.
AI Overview
Some of the most unusual things ever covered by insurance include alien abductions, virgin birth protection, and falling coconuts.
While specialty underwriters like Lloyd’s of London have written bizarre novelty policies, most “unusual” mainstream coverage usually involves high-value celebrity body parts or specific risk gaps.
The Bizarre & Novelty Policies
• Alien Abduction Insurance: Over 20,000 policies have reportedly been issued covering policyholders against being snatched by extraterrestrials, though payouts typically require a third-party witness and a lie detector test.
• Second Coming / Virgin Birth Policy: Three Scottish women once took out a £1 million policy to protect themselves against a miraculous virgin birth in the event of the Second Coming of Jesus Christ.
• Falling Coconut Insurance: A UK travel company once insured travelers against injuries caused by falling coconuts after data suggested falling nuts posed a surprising statistical hazard on tropical vacations.
Celebrity Body Parts & Livelihoods
• Taste Buds & Noses: Professional food critics and wine makers have insured their taste buds or noses for millions of dollars to protect their primary source of income.
• Specific Body Parts: Rock frontman Gene Simmons insured his famous 7-inch tongue for $1 million, and Bruce Springsteen insured his vocal cords for $6 million.
No, requiring insurance would NOT be reasonable, nor would it be constitutional. Remember that NO insurance policy covers criminal use. The only thing that could be insured against would be accidental discharge, and that’s extremely rare, so there’d be no rational basis for such a requirement.
If someone allows a gun to be stolen from them they should be responsible for the harm that leads to in proportion to their negligence. Many guns are stolen from unlocked vehicle – that is 100% negligence. Rarely are guns stolen from thick walled gun safes. Those guns stolen from purses, night stands, or otherwise, about 95% negligence. Anyone killed with a stolen gun, the original owner goes to prison based on their amount of negligence.
“the poor can’t afford insurance.”
You can’t get blood from a stone; the ultimate insurance policy.
More likely liability insurance would be ruled un-Constitutional.
And how would they know who own a gun?
It is reported only some 4% of AR15 owners in NY state registered their guns after Cumo’s SAFE act was passed under the coverage of darkness.
New Massachusetts gun law requires all privately held firearms be registered with the state.
Wholly unconstitutional infringement.
Do you think the bad guys will buy the insurance?
Yeah-NOT!
Organized crime in the U.S. knows better than to own machine guns and RPGs. Anyone wanting to relax those restrictions based on Constitutional absolutism is reckless, stupid or pro-criminal.
pbinca
Peanut butter in California KNOWS stupid!
You don’t like it, so you imply that the keeping and bearing of those arms is unconstitutional.
The Constitution is what you read, Einstein, not what you want, what serves your purpose, and what you “dictate.”
#. Question: Was the Union better armed than the Confederates?
At the beginning of hostilities in the War of Northern Aggression, there was general equivalence between the infantry arms of the North and the South. Before the war ended, Union troops were beginning to receive repeating rifles “that you could load on Sunday and shoot all week”.
The union manufactured 97% + -, 2 million soldiers carrying them, heavy armaments, Gatlin guns and more. Far outgunned the Confederates in addition to railways and communications by telegraph. South had no chance so count it as killing off to obtain land. Slavery was all but gone already thus the price of cotton went from pennies to 83 cents. Many hate Lincoln to this day.
The only possible 2A defense is state attacks state or foreign invasion in which every man , woman and child defends US and family.
Censor!!
The failure was that of the totally corrupt Supreme Court. It took a sworn oath to support the Constitution. Frequently, it has not for 165 years. Secession is not prohibited, and a power reserved to the states in the 10th. The Supreme Court must have “decided” and “found” that Lincoln’s acts were unconstitutional. All Lincoln ever had to do was pass legislation to abolish in Congress. He could not. And Lincoln would have unconstitutionally invaded the sovereign nation, the CSA, no matter what. Lincoln was the author and the finisher of constitutional American freedom. Look around you at the communist American welfare state today. Where the —- is FREEDOM?
The singular American failure is the judicial branch, with emphasis on the Supreme Court.
All reasonable people know what was intended by our Founders with 2A. Only the Clintonesque political hacks think they can gain with arguing “what the meaning of ‘is’ is”.
And, if students today weren’t being indoctrinated by teachers unions and college professors instead of being educated with actual, non-revised history, these sad attempts to chip away at our 2A rights might finally cease.
But Democrats will just keep on being Democrats by proving their contempt for our Constitution, Bill of Rights, sovereignty, courts, national border and fair elections.
the right of the people to keep and bear arms shall not be infringed what more do you need the people are the militia the only protection of a free state read to keep and bear arms by joyce lee malcom
How about a Phased Plasma Rifle in the 40-watt range?
How about the directed energy weapons used covertly by Russia-Cuba to injure with “Havana syndrome”? Think about the present state of weapons tech and the future before latching onto a simplistic, inflexible Constitutional interpretation. It’s a very complex issue. Your own right to be free from invisible, untraceable attack and injury is at stake in this deliberation.
The stupidist endpoint would equip organized crime with highly advanced weapons, all the time thinking the good guys always win (like on TV and movies).
The microwaves affecting people are from faulty towers.
I am again reminded of twice Libertarian presidential candidate, Harry Browne’s interview questions of prospective SCOTUS justices should he be elected:
Can you read?
What does “shall not be infringed” mean?
It’s really that simple.
It’s been infringed and the government knows where the guns are by reg and will knock on your door. This scotus as in the willy wonka citizenship will find a way. 😏
The Constitution severely limits and restricts government and provides maximal freedom to individuals.
Congress enjoys no enumerated power in Article 1, Section 8, to regulate arms.
Governmental registration and regulation of arms constitute unconstitutional infringement.
The singular American failure is the judicial branch, with emphasis on the Supreme Court.
Were/are does not matter – the most relevant time period is post Civil War-because the 14th amendment intentionally applied the the right to bear arms to the states.
Repeating rifles with 20+ round magazines and revolvers with 4-9 shots all predate the civil war.
In Massachusetts, it is a privilege to own a firearm, not a right. Chew on that one.