Justice at Risk

[jdege]

http://prospect.org/article/justice-risk
Justice at Risk
Trump’s nominee to succeed Scalia will restore a right-wing majority. One additional Trump appointee could undo rights established 50 years ago and more.

Erwin Chemerinsky

Guns. Few issues so closely correspond to ideology and party affiliation as the meaning of the Second Amendment. Until 2008, the Supreme Court never had invalidated any law for violating the Second Amendment. The Court always had ruled that the Second Amendment was about a right to have guns for the purpose of militia service. But in District of Columbia v. Heller that year, the Court, in a 5–4 decision, struck down a 32-year-old District of Columbia ordinance that prohibited private ownership or possession of handguns. Scalia wrote for the Court, joined by Roberts, Kennedy, Thomas, and Alito. Two years later, in McDonald v. City of Chicago, the same five justices were the majority in a 5–4 decision holding that the Second Amendment is a fundamental right that applies to state and local laws as well. These are the only cases in all of American history to invalidate laws for violating the Second Amendment.

Without Scalia, the Court was split 4–4 on the meaning of the Second Amendment. The appointment of Garland or of a Clinton nominee would have meant the Court would have been unlikely to extend gun rights and very well might have overruled Heller and McDonald. Replacing Scalia with a conservative means a Court likely to strike down many other laws regulating firearms.

If we let Trump pick a couple of justices, civilization is going to collapse.

Oh, the horror!

[Lumpy]

Kind of disingenuous of the author to warn about rights being under assault, but then complaining about owning firearms being considered a right.

[atomic41]

Interpreted:

OMG you guys, it's going to be really hard to strip away people's rights! I mean, Trump wants justices that actually protect the Constitution! Turning America into our communist dream just got harder.

[jdege]

This is what really bugs me:

The Court always had ruled that the Second Amendment was about a right to have guns for the purpose of militia service.

This is absolutely false.

Not only had SCOTUS never find for a collective right, not a single justice in Heller, not in the decision or in the dissents, argued that SCOTUS had established a collective right.

[Holland&Holland]

Interpreted:

OMG you guys, it's going to be really hard to strip away people's rights! I mean, Trump wants justices that actually protect the Constitution! Turning America into our communist dream just got harder.

This

[Lumpy]

This is what really bugs me:

The Court always had ruled that the Second Amendment was about a right to have guns for the purpose of militia service.

This is absolutely false.

Not only had SCOTUS never find for a collective right, not a single justice in Heller, not in the decision or in the dissents, argued that SCOTUS had established a collective right.

Not the Supreme Court, but several circuit court decisions had upheld the collective rights version and until Heller had not been repudiated. Most infamously United States v Tot. This was a 20th century phenomenon: in the 19th century commentator after commentator as well as judicial decisions had held that the 2nd Amendment protected a fundamental right. This comment sums it up perfectly in my opinon:

Judge Thomas Cooley, perhaps the most widely read constitutional scholar of the nineteenth century, wrote extensively about this amendment,[142][143] and he explained in 1880 how the Second Amendment protected the "right of the people":

It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose

[Ghost]

So, if it meant only those in the militia could have guns. Women couldn't be in the militia at the time. Then if you believe that it's not the right of the people, women shouldn't be allowed to own guns.

Stupid logic

[jdege]

http://www.constitution.org/2ll/schol/gun_control_dencite.htm
CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT
INTERPRETATIONS OF UNITED STATES V. MILLER AND
THE SECOND AMENDMENT