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I'm here for the moneuy Red Tides Plague Gulf Beaches Tucker Carlson calls out Nikki Haley, Ben Shapiro, and every other person calling for war: Status: Not Logged In; Sign In U.S. Constitution See other U.S. Constitution Articles Title: Here’s How The Supreme Court Already Repealed The Second Amendment Source: The Federalist URL Source: http://thefederalist.com/2018/05/09 ... ady-repealed-second-amendment/ Published: May 9, 2018 Author: Mark Overstreet Post Date: 2018-05-09 11:31:39 by Deckard Keywords: None Views: 44204 Comments: 421 The Supreme Court effectively repealed the Second Amendment in District of Columbia v. Heller by restricting the amendment to common arms. In March, retired Supreme Court justice John Paul Stevens called for repealing the Second Amendment, implicitly admitting that it does what, in his dissent in District of Columbia v. Heller (2008), he pretended it does not: prohibit laws infringing the right to keep and bear arms. Why Stevens called for repeal and dissented in Heller is a mystery, however. The Second Amendment was repealed, in effect, by Heller’s majority opinion. The opinion went beyond questions raised in the case and laid out a rationale by which Congress, states, and courts could ban the private possession of many offensive and defensive arms today and all such arms of the future. Heller asked the court to decide whether Washington DC’s bans on handguns, having a loaded firearm at home, and carrying a firearm at home without a permit violated the Second Amendment. Although on imperfect grounds, the court correctly ruled that the first two bans were unconstitutional. It also said if DC required a permit to carry a gun at home, it had to issue permits to qualified applicants. But, the court added, “[w]e may as well consider at this point . . . what types of weapons [the Court’s decision in U.S. v. Miller (1939)] permits.” The Court Turned Stare Decisis On Its Head Miller asked whether the National Firearms Act of 1934 violated the Second Amendment by requiring that a short-barreled shotgun be registered with the federal government. Oddly, before the court heard the case, one defendant died and the other disappeared, so their lawyer didn’t go to Washington to present evidence on their behalf. The court thus concluded, “[i]n the absence of any evidence tending to show that possession and use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense” (emphasis added). For the right to “ordinary military equipment” and other arms that “could contribute to the common defense,” the court cited the decision of the Tennessee Supreme Court in Aymette v. State (1840), that “the arms, the right to keep which is secured [by Tennessee’s constitution] are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority.” Heller said, “We think that Miller’s ‘ordinary military equipment’ language must be read in tandem with what comes after: ‘[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.’” However, that mischaracterizes Miller. The arms to which Miller said people have the right are those that have a “relationship to a well regulated militia.” “Ordinary military equipment” is the first example of arms the court said have that relationship, and “what comes after” is a second example: other arms that “could contribute to the common defense.” It was three paragraphs later that the court stated the obvious: people commonly possessed “common” arms. Moreover, Heller didn’t read Miller “in tandem.” It gave weight only to Miller’s comment about “common” arms, while rejecting Miller’s and Aymette’s endorsement of the right to arms relating to militia purposes, “ordinary military equipment,” and other arms that “could contribute to the common defense.” Why ‘Common’ Can’t Be the Standard for Owning Arms Heller’s mischaracterization of Miller is the first reason why “common” cannot be the standard for arms to which people have the right. “Common” is also vulnerable to deliberate misinterpretation. For example, while the percentage of gun owners who own an AR-15 is about the same as the percentage of drivers who own a Mercedes, judges who oppose the right to arms would likely rule that only Mercedeses are “common.” A second reason “common” cannot be the standard was noted by Justice Stephen Breyer in his dissent in Heller. He explained, “[T]he majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.” Breyer had in mind the majority’s argument that fully automatic rifles, common in the military, could be banned because they aren’t common among private individuals. The circularity is that they aren’t common among private individuals because they have been prohibitively taxed since 1934, banned in about half the states for almost as long, prohibited from importation since 1968, and banned from domestic manufacture since 1986. A third reason is that the U.S. Framers didn’t limit the right to “common” arms. For example, cannons, though not as common as handheld arms, weren’t excluded from the Second Amendment. In protecting the right to arms for defense against tyranny, the Framers intended for the people to win. Several quotations from them illustrate the point. James Madison: “Let a regular army . . . be at the devotion of the federal government. . . . [T]he State governments, with the people on their side, would be able to repel the danger.” Alexander Hamilton: “[The] army cannot be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.” Richard Henry Lee: “To preserve liberty it is essential that the whole body of people always possess arms.” Tench Coxe: “As the military . . . might pervert their power to the injury of their fellow citizens, the people are confirmed by the [Second Amendment] in their right to keep and bear their private arms.” Noah Webster: “[T]he whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.” You Can’t Protect Freedom With a Slingshot A fourth, and the most important, reason was pointed out, but rejected by Heller’s majority opinion, written by the late Justice Antonin Scalia, an originalist from whom we might have expected faithfulness to the Framers’ intent. Referring to fully-automatic rifles, Scalia wrote: It may be objected that if weapons that are most useful in military service . . . may be banned, then the Second Amendment right is completely detached from the [amendment’s] prefatory clause. . . . But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. Although some laud Heller for recognizing an individual right to some arms, its false standard allows Congress and the states to ban arms they and the courts claim are not “common” or that are useful “in military service.” As Breyer put it, “On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the authority to do so.” Breyer was mocking his colleagues, but “tomorrow” is important because firearms are near the end of their 500-year era of usefulness for the military purpose the Framers intended. Notwithstanding gun-control supporters’ complaints about the supposed new-fangledness of this or that firearm or firearm accessory, firearms are glorified slingshots. Three thousand years ago, David slew Goliath with a rock ballistically comparable to a .45 caliber pistol bullet. Gunpowder propels a bullet more predictably than a whirling leather thong, but bullets, like rocks, are inert projectiles. Sometime this century, the government will be equipped with offensive and defensive handheld arms and even more futuristic arms that will render firearms as obsolete for defense against tyranny as bows and arrows are today. While our troops should be equipped with the best equipment possible when fighting America’s enemies, it requires little imagination to envision how extraordinary technologies, such as those developed by the Pentagon’s Defense Advanced Research Projects Agency, could be misused against the American people. Of course, regardless of Heller and whether the Second Amendment is repealed, Americans have the right to keep and bear arms, including for defense against tyranny. As a wiser Supreme Court recognized in U.S. v. Cruikshank (1876), the right, which existed before the Constitution, is “not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.” But rights are a concept. Laws that are enforced have tangible effect. In early April, U.S. District Court judge William Young ruled that Heller’s endorsement of restrictions on fully automatic firearms permits Massachusetts to ban semi-automatic firearms and ammunition magazines that many firearms use. Other courts have upheld similar bans. If Americans allow their rights to be choked in this manner, they could find themselves no longer in control of government, but rather at its mercy. Mark Overstreet is a firearm instructor and author in central Texas. He retired in 2016 as the senior research coordinator of the National Rifle Association’s Institute for Legislative Action, after 25 years with the organization. His views do not necessarily reflect those of the NRA. Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 95. #1. To: Deckard (#0) https://supreme.justia.com/cases/federal/us/554/570/opinion.html http://www.supremecourt.gov/opinions/boundvolumes/554bv.pdf District of Columbia v Heller, 554 US 570 (2008) From Heller at 581: 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 “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (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 (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar). Heller at 582: 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, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), 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. Heller at 584: 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 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘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 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). 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. Heller at 620: We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’ ” Heller at 624-25: “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra. We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. Heller at 626: Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Heller at 627-28: It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. Black's Law Dictionary, 6 Ed. Arms. Anything that a man wears for his defense, or takes in his hands as a weapon. The "right to keep and bear arms" existed in the colonies, was brought forth into the states before the union, and was protected by the 2nd Amendment. The right which existed in the colonies came from the English common law. The Framers saw no need to explain to themselves what that right to keep and bear arms was. http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp Blackstone's Commentaries on the Laws of England Book the First - Chapter the First: Of the Absolute Rights of Individuals 5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. Heller at 593-95: By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145–146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833). 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. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause. Heller at 626-28: Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). 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. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874). It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. nolu chan  posted on  2018-05-09   13:00:54 ET  Reply   Untrace   Trace   Private Reply   #2. To: nolu chan (#1) (Edited) "... by restricting the amendment to common arms." They had to ... if they were going to rule that the second amendment protected an individual right. You can't have ordinary citizens with tanks, SAMs, flame throwers and machine guns. As I said at the time, this is what happens when trying to fit a square peg into a round hole. You destroy the square peg. The second amendment doesn't protect arms for ordinary citizens. It protects state militias and the arms of state militia members from federal infringement. What are those arms? They are the arms selected by the state militia as necessary for the protection of the state. Round peg. Round hole. So what protects the individual right to keep and bear arms? State constitutions. misterwhite  posted on  2018-05-09   14:45:59 ET  Reply   Untrace   Trace   Private Reply   #4. To: misterwhite, nolu chan (#2) You can't have ordinary citizens with tanks, SAMs, flame throwers and machine guns. As I said at the time, this is what happens when trying to fit a square peg into a round hole. You destroy the square peg. Yes, you can have ordinary citizens with tanks, SAMs, flame throwers and machine guns. Title 10 Section 311 Part (b) 2 says this quite clearly http://uscode.house.gov/view.xht...ort&fq=true&num=5&hl=true People out there have this strong hatred for the Second Amendment, and to deliberately dismantle the meaning of "militia" and who they are comprised of, for the sole purpose of depriving the ordinary citizen that lawful Right which has long been recognized in our law books as a personal right. The statute I pointed out is recognized as part of the positive law already in our United States Codes in the Table of Contents as the original positive law. State Constitutions must be concomitant with the original federal constitution, chiefly the Bill of Rights. The purpose of invoking boiler plate case law in this matter is to confuse the issue thus clouding what the reasonable intent of the Second Amendment was intended to be for. The statute I referenced (Title 10 USC. Sec 311 (b) (2) makes it quite clear who the militia are. Unlike the professional standing army, the Class (b) (2) militia is comprised of those like you and me. The professional standing army is controlled by the federal government which includes your State Governors who use their own armies to be deployed when necessary to establish the peace. Contrary to this, We as the general member of the public, represent that second class of being the unprofessional army in that the purpose of having those cannons, tanks, SAMs, and flamethrowers, is to maintain these tools in a safe manner and teach our children about them. Our militia serves for the purpose of protecting not our homeland and overseas but to protect our home and personal property from professional standing armies being used by rogue governments who desire to override our rights as a free people. goldilucky  posted on  2018-05-09   16:39:57 ET  Reply   Untrace   Trace   Private Reply   #23. To: goldilucky (#4) Yes, you can have ordinary citizens with tanks, SAMs, flame throwers and machine guns. Title 10 Section 311 Part (b) 2 says this quite clearly Title 10 Section 311 Part(b)2 refers to the "unorganized militia" of a state. Currently, 21 States have State Defense Forces (also called State Military, State Guards, or State Military Reserves), authorized by state and federal law and under the command of the governor of each state. State Defense Forces are distinct from their state's National Guard in that they cannot become federal entities. I am not aware that any State Defense Force allows their personnel to own SAMs, machine guns, or flamethrowers. misterwhite  posted on  2018-05-11   9:43:01 ET  Reply   Untrace   Trace   Private Reply   #30. To: misterwhite, goldilucky (#23) I am not aware that any State Defense Force allows their personnel to own SAMs, machine guns, or flamethrowers. I am unaware of any military base that allows active duty military living on base to have their own private SAMs, machine guns, or flamethrowers. Except for authorized persons with authorized weapons, on base personnel are not authorized to be armed, concealed carry or otherwise. One cannot transport their private gun onto a base in their vehicle either. nolu chan  posted on  2018-05-11   15:04:49 ET  Reply   Untrace   Trace   Private Reply   #32. To: nolu chan (#30) I believe he's thinking private paramilitary groups like the Michigan Militia (Wolverines) qualify as the "unorganized militia" and are protected by the second amendment. misterwhite  posted on  2018-05-11   15:19:37 ET  Reply   Untrace   Trace   Private Reply   #39. To: misterwhite (#32) I believe he's thinking private paramilitary groups like the Michigan Militia (Wolverines) qualify as the "unorganized militia" and are protected by the second amendment. The 2nd Amendment protects the RKBA of individuals and is not restricted to militia or any other group. Individuals in the Wolverines are protected by the 2nd Amendment. However, the RKBA has never protected some imaginary right to bear RPGs, SAMs, machine guns, or flamethrowers. That was not the right enjoyed under English common law by the colonists, and is not the right they brought forward with them into the United States. nolu chan  posted on  2018-05-11   21:18:40 ET  Reply   Untrace   Trace   Private Reply   #41. To: nolu chan (#39) "The 2nd Amendment protects the RKBA of individuals and is not restricted to militia or any other group." That's how the Heller court ruled, yes. They were wrong, but that's their ruling. "However, the RKBA has never protected some imaginary right to bear RPGs, SAMs, machine guns, or flamethrowers." Not even for the well-regulated and organized State militias? I seem to recall that Article 1, Section 8, Clause 16 calls for "organizing, arming, and disciplining the Militia." We're going to have a dificult time protecting ourselves from an out-of-control Federal government with just the handguns protected by Heller. misterwhite  posted on  2018-05-12   10:36:23 ET  Reply   Untrace   Trace   Private Reply   #45. To: misterwhite (#41) That's how the Heller court ruled, yes. They were wrong, but that's their ruling. The Supreme court determines the law. You are entitled to your opinion, but that does not change the law. Individuals in and out of the militia have the rights to keep and bear arms brought forward by the colonists into America, and the right is protected by the 2nd Amendment. The ancient right came from English common law and predates the Constitution. Not even for the well-regulated and organized State militias? I seem to recall that Article 1, Section 8, Clause 16 calls for "organizing, arming, and disciplining the Militia." What arms meant in 1792 is amply described below. It does not expand to any weapon imaginable. The right was not defined in the Constitution because it was well-defined in English common law. The Militia Act of May 8, 1792 (repealed and replaced 1795). SECOND CONGRESS. Sess. I. Ch. 33. 1792. 1 Stat. 271 May 8, 1792. Chap. XXXIII.—An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States.(a) Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That and by whom each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citi­zen shall reside, and that within twelve months after the passing of this act. And it shall at all times hereafter be the duty of every such cap­tain or commanding officer of a company to enrol every such citizen, as aforesaid, and also those who shall, from time to time, arrive at the age of eighteen years, or being of the age of eighteen years and under the age of forty-five years (except as before excepted) shall come to re­side within his bounds; and shall without delay notify such citizen of the said enrolment, by a proper non-commissioned officer of the company, by whom such notice may be proved. That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cart­ridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned officers shall severally be armed with a sword or hanger and espontoon, and that from and after five years from the passing of this act, all muskets for arming the militia as herein required, shall be of bores sufficient for __________ (a) The acts for the establishment of an uniform system for the government of the militia, are: An act more effectually to provide for the national defence by establishing an uniform militia throughout the United States, May 8, 1792, chap. 33; an act providing arms for the militia throughout the United States. July 6, 1798, chap. 65; an act in addition to an act entitled, “An act more effectually to provide for the national defence, by establishing an uniform militia throughout the United States,” March 2, 1803, chap. 15; an act more effectually to provide for the organizing of the militia of the District of Columbia, March 3, 1803, chap. 20; an act establishing rules and articles for the government of the armies of the United States, April 10, 1806, chap. 20; an act in addition to the act entitled, “An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and to repeal the act now in force for those purposes,” April 18. 1814, chap. 82; an act concerning field officers of the militia, April 20, 1816, chap. 64; an act to establish an uniform mode of discipline and field exercise for the militia of the United States, May 12, 1820, chap. 96; an act to reduce and fix the military peace establishment of the United States, March 2, 1821, chap. 12, sec. 14. 272 SECOND CONGRESS. Sess. I. Ch. 33. 1792. balls of the eighteenth part of a pound. And every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements required as aforesaid, shall hold the same exempted from all suits, dis­tresses, executions or sales, for debt or for the payment of taxes. [snip] nolu chan  posted on  2018-05-14   15:21:28 ET  Reply   Untrace   Trace   Private Reply   #51. To: nolu chan (#45) That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock Do you know why they had to get a musket? Because they didn't have one. They had rifles for hunting because smoothbore muskets were not accurate. Now, muskets were fine for volley fire used by the militia, they were cheap, and they were fast reloading. But above the fireplace in the home, proudly displayed, was an expensive rifle. So what is it? Does the second amendment protect arms in common use at the time (rifles) or does it protect the arms used by the militia (muskets)? misterwhite  posted on  2018-05-14   16:04:13 ET  Reply   Untrace   Trace   Private Reply   #54. To: misterwhite (#51) So what is it? Does the second amendment protect arms in common use at the time (rifles) or does it protect the arms used by the militia (muskets)? The 2nd Amdt protects the ancient right to keep and bear arms. It does not protect and alleged right to keep Surface to Air Missiles (SAMs). It protects the right to keep and bear arms which are lawful to possess. nolu chan  posted on  2018-05-14   22:12:44 ET  Reply   Untrace   Trace   Private Reply   #62. To: nolu chan (#54) The 2nd Amdt protects the ancient right to keep and bear arms ... ... for Militia members only. Which it why it mentions a Militia. Prior to the ratification of the Bill of Rights, at least 4 of the 13 states had state constitutions which protected the individual right of their citizens to keep and bear arms. But their "second amendment" language used the phrase, "... the right of the citizens to bear arms in defence of themselves and the State ..." "Citizens", not "the people". In defense of themselves. Your individual right to keep and bear arms is, and has always been, protected by your state constitution. Which is why gun laws vary from state to state. misterwhite  posted on  2018-05-15   10:05:24 ET  Reply   Untrace   Trace   Private Reply   #64. To: misterwhite (#62) The 2nd Amdt protects the ancient right to keep and bear arms ... ... for Militia members only. Which it why it mentions a Militia. Hosreshit repeated is still horseshit. District of Columbia v. Heller, S. Ct. 26 June 2008, Syllabus: Held: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2-53. (a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2-22. - - - - - - - - - - District of Columbia v Heller, S. Ct. (2008) From Heller at 581: 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 “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (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 (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar). Heller at 582: 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, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), 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. Heller at 584: 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 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘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 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). 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. Heller at 620: We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’ ” Heller at 624-25: “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra. We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. Heller at 626: Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Heller at 627-28: It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. Black's Law Dictionary, 6 Ed. Arms. Anything that a man wears for his defense, or takes in his hands as a weapon. The "right to keep and bear arms" existed in the colonies, was brought forth into the states before the union, and was protected by the 2nd Amendment. The right which existed in the colonies came from the English common law. The Framers saw no need to explain to themselves what that right to keep and bear arms was. Heller at 593-95: By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145–146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833). 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. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause. Heller at 626-28: Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). 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. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874). It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp Blackstone's Commentaries on the Laws of England Book the First - Chapter the First: Of the Absolute Rights of Individuals 5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. nolu chan  posted on  2018-05-15   13:08:19 ET  Reply   Untrace   Trace   Private Reply   #65. To: nolu chan (#64) Don't bother citing Heller. I told you the court got it wrong. And for future reference, don't cite Roe v Wade, Kelo, or Obamacare (the penalty is a tax). They got it wrong there, too. misterwhite  posted on  2018-05-15   15:12:22 ET  Reply   Untrace   Trace   Private Reply   #68. To: misterwhite (#65) [misterwhite #65] Don't bother citing Heller. I told you the court got it wrong. You got it wrong and Heller (and McDonald) are current Supreme Court precedent. By contrast you want to keeep digging up the corpses of Cruickshank, Presser and Miller, three very old cases that you happen to like. I will continue to cite and quote current Supreme Court precedent and you are welcome to dig up the corpses of 19th century post civil war cases and drag them before the forum. [misterwhite #66] I never said they didn't have the right. They do. Just that the second amendment doesn't protect it. The 2nd Amendment does protect the individual right to keep and bear arms, as explicitly expressed and held by current Supreme Court precedent. [misterwhite #67] Yeah. In common use by the militia. According to Miller: [...] The question before the Miller court was whether or not a sawed-off shotgun had "any reasonable relation to the preservation or efficiency of a well regulated militia". If it did, then the second amendment protected it. There ya go, digging up that corpse again. This claptrap was crushed in Heller. District of Columbia v Heller, 554 US 570 (2008) [595] 2. Prefatory Clause. The prefatory clause reads: "A well regulated Militia, being necessary to the security of a free State .... " a. "Well-Regulated Militia." In United States v. Miller, 307 U. S. 174, 179 (1939), we explained that "the Militia comprised all males physically capable of acting in concert for the common defense." That definition comports with founding-era sources. - - - - - - - - - - [596] Petitioners take a seemingly narrower view of the militia, stating that "[m]ilitias are the state- and congressionally-regulated military forces described in the Militia Clauses (art. I, § 8, cls. 15-16)." Brief for Petitioners 12. Although we agree with petitioners' interpretive assumption that "mi­litia" means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and na­vies, which Congress is given the power to create ("to raise . . . Armies"; "to provide . . . a Navy," Art. I, § 8, cls. 12-13), the militia is assumed by Article I already to be in existence. Congress is given the power to "provide for call­ing forth the Militia," § 8, cl. 15; and the power not to create, but to "organiz[e]" it—and not to organize "a" militia, which is what one would expect if the militia were to be a federal creation, but to organize "the" militia, connoting a body al­ready in existence, ibid., cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first Militia Act, which specified that "each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia." Act of May 8, 1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body. Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them. - - - - - - - - - - [598] 3. Relationship Between Prefatory Clause and Opera­tive Clause. We reach the question, then: Does the preface it with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had elimi­nated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the peo­ple's arms, enabling a select militia or standing army to sup­press political opponents. This is what had occurred in Eng­land that prompted codification of the right to have arms in the English Bill of Rights. The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. - - - - - - - - - - [599] It is therefore entirely sensible that the Second Amend­ment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. JUSTICE BREYER's assertion that individual self-defense is merely a "subsidiary interest" of the right to keep and bear arms, see post, at 714 (dissenting opinion), is profoundly mis­taken. He bases that assertion solely upon the prologue— but that can only show that self-defense had little to do with the right's codification; it was the central component of the right itself. - - - - - - - - - - [619] United States v. Cruikshank, 92 U. S. 542, in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right "is not a right granted by the Con­stitution [or] in any manner dependent upon that instrument for its existence. The second amendment... means no more 620 than that it shall not be infringed by Congress." Id., at 553. States, we said, were free to restrict or protect the right under their police powers. The limited discussion of the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation. There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had dis­banded the local militia unit the year before the mob's attack, see C. Lane, The Day Freedom Died 62 (2008). We de­scribed the right protected by the Second Amendment as " 'bearing arms for a lawful purpose' " and said that "the people [must] look for their protection against any violation by their fellow-citizens of the rights it recognizes" to the States' police power. 92 U. S., at 553. That discussion makes little sense if it is only a right to bear arms in a state militia. Presser v. Illinois, 116 U. S. 252 (1886), held that the right to keep and bear arms was not violated by a law that forbade "bodies of men to associate together as military organiza­tions, or to drill or parade with arms in cities and towns unless authorized by law." Id., at 264-265. This does not refute the individual-rights interpretation of the Amend­ment; no one supporting that interpretation has contended that States may not ban such groups. 621 JUSTICE STEVENS presses Presser into service to support his view that the right to bear arms is limited to service in the militia by join­ing Presser's brief discussion of the Second Amendment with a later portion of the opinion making the seemingly relevant (to the Second Amendment) point that the plaintiff was not a member of the state militia. Unfortunately for JUSTICE STEVENS' argument, that later portion deals with the Four­teenth Amendment; it was the Fourteenth Amendment to which the plaintiff's nonmembership in the militia was rele­vant. Thus, JUSTICE STEVENS' statement that Presser "suggested that . . . nothing in the Constitution protected the use of arms outside the context of a militia," post, at 674-675, is simply wrong. - - - - - - - - - - [621] JUSTICE STEVENS places overwhelming reliance upon this Court's decision in Miller, 307 U. S. 174. "[H]undreds of judges," we are told, "have relied on the view of the Amend­ment we endorsed there," post, at 638, and "[e]ven if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself . . . would prevent most jurists from endorsing such a dramatic upheaval in the law," post, at 639. And what is, according to JUSTICE STEVENS, the holding of Miller that demands such obeisance? That the Second Amendment "protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature's power to regulate the nonmilitary use and ownership of weapons." Post, at 637. Nothing so clearly demonstrates the weakness of JUSTICE STEVENS' case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men's federal indictment for transporting an unregistered short-barreled 622 shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court's basis for saying that the Second Amendment did not apply was not that the defendants were "bear[ing] arms" not "for . . . military purposes" but for "nonmilitary use," post, at 637. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: "In the ab­sence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." 307 U. S., at 178 (emphasis added). "Cer­tainly," the Court continued, "it is not within judicial notice that this weapon is any part of the ordinary military equip­ment or that its use could contribute to the common de­fense." Ibid. Beyond that, the opinion provided no expla­nation of the content of the right. This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. JUSTICE STEVENS can say again and again that Miller did not "turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns," post, at 677, but the words of the opinion prove otherwise. The most JUSTICE STEVENS can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General's argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938, 623 No. 696, pp. 4-5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. - - - - - - - - - - [623] It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment. JUS­TICE STEVENS claims, post, at 676-677, that the opinion reached its conclusion "[a]fter reviewing many of the same sources that are discussed at greater length by the Court today." Not many, which was not entirely the Court's fault. The defendants made no appearance in the case, neither filing a brief nor appearing at oral argument; the Court heard from no one but the Government (reason enough, one would think, not to make that case the beginning and the end of this Court's consideration of the Second Amendment). See Frye, The Peculiar Story of United States v. Miller, 3N. Y. U. J. L. & Liberty 48, 65-68 (2008). The Government's brief spent two pages discussing English legal sources, concluding " that at least the carrying of weapons without lawful occa­sion or excuse was always a crime" and that (because of the class-based restrictions and the prohibition on terrorizing people with dangerous or unusual weapons) "the early Eng­lish law did not guarantee an unrestricted right to bear arms." Brief for United States, O. T. 1938, No. 696, at 9-11. It then went on to rely primarily on the discussion of the English right to bear arms in Aymette v. State, 21 Tenn. 154, for the proposition that the only uses of arms protected by the Second Amendment are those that relate to the militia, not self-defense. See Brief for United States, O. T. 1938, No. 696, at 12-18. The final section of the brief recognized that "some courts have said that the right to bear arms in­cludes the right of the individual to have them for the protec­tion of his person and property," and launched an alternative argument that "weapons which are commonly used by crimi­nals," such as sawed-off shotguns, are not protected. See id., at 18-21. The Government's Miller brief thus provided 624 scant discussion of the history of the Second Amendment— and the Court was presented with no counter discussion. As for the text of the Court's opinion itself, that discusses none of the history of the Second Amendment. It assumes from the prologue that the Amendment was designed to preserve the militia, 307 U. S., at 178 (which we do not dispute), and then reviews some historical materials dealing with the na­ture of the militia, and in particular with the nature of the arms their members were expected to possess, id., at 178­182. Not a word (not a word) about the history of the Sec­ond Amendment. This is the mighty rock upon which the dissent rests its case. = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = McDonald v Chicago, 561 US 742 (2010) [Syllabus at 1] The Seventh Circuit affirmed, relying on three 19th-century cases—United States v. Cruikshank, 92 U. S. 542, Presser v. Illinois, 116 U. S. 252, and Miller v. Texas, 153 U. S. 535— which were decided in the wake of this Court's interpretation of the Fourteenth Amendment's Privileges or Immunities Clause in the Slaughter-House Cases, 16 Wall. 36. Held: The judgment is reversed, and the case is remanded. - - - - - - - - - - [Syllabus at 2] (b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, but the constitutional Amendments adopted in the Civil War's aftermath fundamentally altered the federal system. Four years after the adop­tion of the Fourteenth Amendment, this Court held in the Slaughter­ House Cases, that the Privileges or Immunities Clause protects only those rights "which owe their existence to the Federal government, its National character, its Constitution, or its laws," 16 Wall., at 79, and that the fundamental rights predating the creation of the Fed­eral Government were not protected by the Clause, id., at 76. Under this narrow reading, the Court held that the Privileges or Immunities Clause protects only very limited rights. Id., at 79-80. Subse­quently, the Court held that the Second Amendment applies only to the Federal Government in Cruikshank, 92 U. S. 542, Presser, 116 U. S. 252, and Miller, 153 U. S. 535, the decisions on which the Sev­enth Circuit relied in this case. Pp. 5-9. - - - - - - - - - - [Syllabus at 3] (d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 19-33. - - - - - - - - - - [9] The Court reversed all of the convictions, including those relating to the deprivation of the victims' right to bear arms. Cruikshank, 92 U. S., at 553, 559. The Court wrote that the right of bearing arms for a lawful purpose "is not a right granted by the Constitution" and is not "in any manner dependent upon that instrument for its exis­tence." Id., at 553. "The second amendment," the Court continued, "declares that it shall not be infringed; but this . . . means no more than that it shall not be infringed by Congress." Ibid. "Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886), and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government." Heller, 554 U. S., at_, n. 23 (slip op., at 48, n. 23). - - - - - - - - - - [10] As previously noted, the Seventh Circuit concluded that Cruikshank, Presser, and Miller doomed petitioners' claims at the Court of Appeals level. Petitioners argue, however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the "privi­leges or immunities of citizens of the United States." In petitioners' view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, see Brief for Petitioners 10, 14, 15-21, but petitioners are unable to identify the Clause's full scope, Tr. of Oral Arg. 5-6, 8-11. Nor is there any consen­sus on that question among the scholars who agree that the Slaughter-House Cases' interpretation is flawed. See Saenz, supra, at 522, n. 1 (THOMAS, J., dissenting). We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter­ House holding. At the same time, however, this Court's decisions in Cruikshank, Presser, and Miller do not preclude us from considering whether the Due Process Clause of the Fourteenth Amendment makes the Second Amendment right binding on the States. See Heller, 554 U. S., at_, n. 23 (slip op., at 48, n. 23). None of those cases "engage[d] in the sort of Fourteenth Amendment inquiry required by our later cases." Ibid. As explained more fully below, Cruikshank, Presser, and Miller all preceded the era in which the Court began the process of "selective incorpo­ration" under the Due Process Clause, and we have never previously addressed the question whether the right to keep and bear arms applies to the States under that theory. 11 Indeed, Cruikshank has not prevented us from holding that other rights that were at issue in that case are bind­ing on the States through the Due Process Clause. In Cruikshank, the Court held that the general "right of the people peaceably to assemble for lawful purposes," which is protected by the First Amendment, applied only against the Federal Government and not against the States. See 92 U. S., at 551-552. Nonetheless, over 60 years later the Court held that the right of peaceful assembly was a "fun­damental righ[t] . . . safeguarded by the due process clause of the Fourteenth Amendment." De Jonge v. Oregon, 299 U. S. 353, 364 (1937). We follow the same path here and thus consider whether the right to keep and bear arms applies to the States under the Due Process Clause. - - - - - - - - - - [13] An alternative theory regarding the relationship be- 14 tween the Bill of Rights and §1 of the Fourteenth Amend­ment was championed by Justice Black. This theory held that §1 of the Fourteenth Amendment totally incorporated all of the provisions of the Bill of Rights. See, e.g., Adamson, supra, at 71-72 (Black, J., dissenting); Duncan, supra, at 166 (Black, J., concurring). As Justice Black noted, the chief congressional proponents of the Four­teenth Amendment espoused the view that the Amend­ment made the Bill of Rights applicable to the States and, in so doing, overruled this Court's decision in Barron. Adamson, 332 U. S., at 72 (dissenting opinion). None- 15 theless, the Court never has embraced Justice Black's "total incorporation" theory. While Justice Black's theory was never adopted, the Court eventually moved in that direction by initiating what has been called a process of "selective incorporation," i.e., the Court began to hold that the Due Process Clause fully incorporates particular rights contained in the first eight Amendments. See, e.g., Gideon v. Wainwright, 372 U. S. 335, 341 (1963); Malloy v. Hogan, 378 U. S. 1, 5-6 16 (1964); Pointer v. Texas, 380 U. S. 400, 403-404 (1965); Washington v. Texas, 388 U. S. 14, 18 (1967); Duncan, 391 U. S., at 147-148; Benton v. Maryland, 395 U. S. 784, 794 (1969). The decisions during this time abandoned three of the previously noted characteristics of the earlier period.11 The Court made it clear that the governing standard is not whether any "civilized system [can] be imagined that would not accord the particular protection." Duncan, 391 U. S., at 149, n. 14. Instead, the Court inquired whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice. Id., at 149, and n. 14; see also id., at 148 (referring to those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions" (empha­sis added; internal quotation marks omitted)). The Court also shed any reluctance to hold that rights guaranteed by the Bill of Rights met the requirements for protection under the Due Process Clause. The Court eventually incorporated almost all of the provisions of the Bill of Rights. Only a handful of the Bill of Rights pro- 17 tections remain unincorporated. Finally, the Court abandoned "the notion that the Four­teenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights," stating that it would be "incongruous" to apply different standards "depending on whether the claim was asserted in a state or federal court." Malloy, 378 U. S., at 10-11 (internal quotation marks omitted). Instead, the Court decisively held that incorporated Bill of 18 Rights protections "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment." Id., at 10; see also Mapp v. Ohio, 367 U. S. 643, 655-656 (1961); Ker v. California, 374 U. S. 23, 33-34 (1963); Aguilar v. Texas, 378 U. S. 108, 110 (1964); Pointer, 380 U. S., at 406; Duncan, supra, at 149, 157-158; Benton, 395 U. S., at 794-795; Wallace v. Jaffree, 472 U. S. 38, 48-49 (1985). Employing this approach, the Court overruled earlier decisions in which it had held that particular Bill of Rights 19 guarantees or remedies did not apply to the States. See, e.g., Mapp, supra (overruling in part Wolf, 338 U. S. 25); Gideon, 372 U. S. 335 (overruling Betts, 316 U. S. 455); Malloy, supra (overruling Adamson, 332 U. S. 46, and Twining, 211 U. S. 78); Benton, supra, at 794 (overruling Palko, 302 U. S. 319). III With this framework in mind, we now turn directly to the question whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, Duncan, 391 U. S., at 149, or as we have said in a related context, whether this right is "deeply rooted in this Nation's his­tory and tradition," Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted). A Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day and in Heller, we held that individual self-defense is "the central component" of the Second Amendment right. 554 U. S., at_(slip op., at 26); see also id., at_(slip op., at 56) (stating that the "inherent right of self-defense has been central to the Second Amendment right"). - - - - - - - - - - [31] In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. - - - - - - - - - - nolu chan  posted on  2018-05-16   15:52:31 ET  Reply   Untrace   Trace   Private Reply   #70. To: nolu chan (#68) Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. Correct. Those used by a militia. The Miller court was unsure whether a sawed-off, double-barrel shotgun was a militia weapon. misterwhite  posted on  2018-05-16   16:14:48 ET  Reply   Untrace   Trace   Private Reply   #75. To: misterwhite (#70) Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. [misterwhite #70] Correct. Those used by a militia. The Miller court was unsure whether a sawed-off, double-barrel shotgun was a militia weapon. The Court opined, In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. There was no brief or appearance for Miller. No evidence was provided except by the government. The court can only consider evidence that is before it. With no relevant evidence before the court whether a short barrel shotgun bore, "some reasonable relationship to the preservation or efficiency of a well regulated militia," the court could not "say that the Second Amendment guarantees the right to keep and bear such an instrument." You cite that as precedent for what? nolu chan  posted on  2018-05-18   18:23:26 ET  Reply   Untrace   Trace   Private Reply   #81. To: nolu chan (#75) You cite that as precedent for what? That the type of weapon protected by the second amendment was relevent to its usefulness to a militia. Useful? Protected. Not useful? Not protected. Meaning, the second amendment has nothing to do with protecting some handgun for self-defense in the home. It's a restriction on the federal government to leave the state militias (and their weapons) alone. Your right to self-defense with a firearm is protected by your state constitution. Always has been. The Heller court got it wrong. misterwhite  posted on  2018-05-18   19:31:13 ET  Reply   Untrace   Trace   Private Reply   #88. To: misterwhite (#81) You cite that as precedent for what? That the type of weapon protected by the second amendment was relevent to its usefulness to a militia. - - - - - - - - - - In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Presser In the absence of evidence, the court could not say whether the a short barrel shotgun was a weapon in any part of the ordinary military equipment. What a precedent. In the absence of evidence, the court could not say. The District of Columbia argues that the prefatory clause declares the Amendment’s only purpose—to shield the state militias from federal encroachment—and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right. In other words, according to the District, the operative clause is not just limited by the prefatory clause, but instead both clauses share an explicitly civic character. The District claims that the Second Amendment “protects private possession of weapons only in connection with performance of civic duties as part of a well-regulated citizens militia organized for the security of a free state.” Individuals may be able to enforce the Second Amendment right, but only if the law in question “will impair their participation in common defense and law enforcement when called to serve in the militia.” But because the District reads “a well regulated Militia” to signify only the organized militias of the founding era—institutions that the District implicitly argues are no longer in existence today—invocation of the Second Amendment right is conditioned upon service in a defunct institution. Tellingly, we think, the District did not suggest what sort of law, if any, would violate the Second Amendment today—in fact, at oral argument, appellees’ counsel asserted that it would be constitutional for the District to ban all firearms outright. In short, we take the District’s position to be that the Second Amendment is a dead letter. [...] We are told by the District that the Second Amendment was written in response to fears that the new federal government would disarm the state militias by preventing men from bearing arms while in actual militia service, or by preventing them from keeping arms at home in preparation for such service. Thus the Amendment should be understood to check federal power to regulate firearms only when federal legislation was directed at the abolition of state militias, because the Amendment’s exclusive concern was the preservation of those entities. At first blush, it seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as “Congress shall make no law disarming the state militias” or “States have a right to a well-regulated militia.” [...] Both the collective and sophisticated collective theories assert that the Second Amendment was written for the exclusive purpose of preserving state militias, and both theories deny that individuals qua individuals can avail themselves of the Second Amendment today. The latter point is true either because, as the District appears to argue, the “Militia” is no longer in existence, or, as others argue, because the militia’s modern analogue, the National Guard, is fully equipped by the federal government, creating no need for individual ownership of firearms. It appears to us that for all its nuance, the sophisticated collective right model amounts to the old collective right theory giving a tip of the hat to the problematic (because ostensibly individual) text of the Second Amendment. [...] In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right—“the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. We also note that the Tenth Amendment—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”—indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between “the people,” on the one hand, and “the states,” on the other. The natural reading of “the right of the people” in the Second Amendment would accord with usage elsewhere in the Bill of Rights. The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals such as “the organized militia” or “the people who are engaged in militia service,” or perhaps not any individuals at all—e.g., “the states.” See Emerson, 270 F.3d at 227. These strained interpretations of “the people” simply cannot be squared with the uniform construction of our other Bill of Rights provisions. Indeed, the Supreme Court has recently endorsed a uniform reading of “the people” across the Bill of Rights. [...] In sum, the phrase “the right of the people,” when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual. Parker v District of Columbia, 478 F3d 372 (DC Cir 2007), Affirmed U.S. Supreme Court, 554 U.S. 570 (2008) nolu chan  posted on  2018-05-18   20:06:21 ET  Reply   Untrace   Trace   Private Reply   #90. To: nolu chan (#88) What a precedent. In the absence of evidence, the court could not say. Just the fact that the court connected the weapon to a state militia speaks volumes as to the meaning of the second amendment. "The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals" They were. They were citizens with full rights -- to own property, run for office, vote, bear arms in the militia. For example, Article I, Section 2 says "the people" vote for House members. Not "the citizens" vote for House members. misterwhite  posted on  2018-05-18   20:21:35 ET  Reply   Untrace   Trace   Private Reply   #95. To: misterwhite (#90) Just the fact that the court connected the weapon to a state militia speaks volumes as to the meaning of the second amendment. Yes. You should write SCOTUS a sternly worded letter about it. The meaning of the 2nd Amendment is not the definition of the right to keep and bear arms. Here is what a unanimous Supreme Court said in 2016 about such blather. Caetano v. Massachusetts, 14-10078, 577 US ____ (2016) per curiam This is a UNANIMOUS opinion in which the author is not identified. Cite as: 577 U. S._(2016) 1 Per Curiam SUPREME COURT OF THE UNITED STATES JAIME CAETANO v. MASSACHUSETTS ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS No. 14-10078. Decided March 21, 2016 PER CURIAM. The Court has held that "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," District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this "Second Amend­ment right is fully applicable to the States," McDonald v. Chicago, 561 U. S. 742, 750 (2010). In this case, the Su­preme Judicial Court of Massachusetts upheld a Massa­chusetts law prohibiting the possession of stun guns after examining "whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment." 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015). The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they "were not in common use at the time of the Second Amendment's enactment." Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller's clear statement that the Second Amendment "extends . . . to . . . arms . . . that were not in existence at the time of the founding." 554 U. S., at 582. The court next asked whether stun guns are "dangerous per se at common law and unusual," 470 Mass., at 781, 26 N. E. 3d, at 694, in an attempt to apply one "important limitation on the right to keep and carry arms," Heller, 554 U. S., at 627; see ibid. (referring to "the historical tradition of prohibiting the carrying of 'dangerous and 2 CAETANO v. MASSACHUSETTS Per Curiam unusual weapons' "). In so doing, the court concluded that stun guns are "unusual" because they are "a thoroughly modern invention." 470 Mass., at 781, 26 N. E. 3d, at 693-694. By equating "unusual" with "in common use at the time of the Second Amendment's enactment," the court's second explanation is the same as the first; it is inconsistent with Heller for the same reason. Finally, the court used "a contemporary lens" and found "nothing in the record to suggest that [stun guns] are readily adaptable to use in the military." 470 Mass., at 781, 26 N. E. 3d, at 694. But Heller rejected the proposi­tion "that only those weapons useful in warfare are pro­tected." 554 U. S., at 624-625. For these three reasons, the explanation the Massachu­setts court offered for upholding the law contradicts this Court's precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. - - - - - - - - - - And here is the concurring opinion which accompanied the per curiam opinion. Cite as: 577 U. S. __ (2016) 1 ALITO, J., concurring in judgment SUPREME COURT OF THE UNITED STATES JAIME CAETANO v. MASSACHUSETTS ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS No. 14-10078. Decided March 21, 2016 Justice Alito, with whom Justice Thomas joins, concurring in the judgment. After a "bad altercation" with an abusive boyfriend put her in the hospital, Jaime Caetano found herself homeless and "in fear for [her] life." Tr. 31, 38 (July 10, 2013). She obtained multiple restraining orders against her abuser, but they proved futile. So when a friend offered her a stun gun "for self-defense against [her] former boy friend," 470 Mass. 774, 776, 26 N. E. 3d 688, 690 (2015), Caetano accepted the weapon. It is a good thing she did. One night after leaving work, Caetano found her ex-boyfriend "waiting for [her] outside." Tr. 35. He "started screaming" that she was "not gonna [expletive deleted] work at this place" any more because she "should be home with the kids" they had together. Ibid. Caetano's abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. But she didn't need physical strength to protect herself. She stood her ground, displayed the stun gun, and announced: "I'm not gonna take this anymore. . . . I don't wanna have to [use the stun gun on] you, but if you don't leave me alone, I'm gonna have to." Id., at 35-36. The gambit worked. The ex-boyfriend "got scared and he left [her] alone." Id., at 36. It is settled that the Second Amendment protects an individual right to keep and bear arms that applies against both the Federal Government and the States. District of Columbia v. Heller, 554 U. S. 570 (2008); McDonald v. Chicago, 561 U. S. 742 (2010). That right 2 CAETANO v. MASSACHUSETTS ALITO, J., concurring in judgment vindicates the "basic right" of "individual self-defense." Id., at 767; see Heller, supra, at 599, 628. Caetano's en­counter with her violent ex-boyfriend illustrates the con­nection between those fundamental rights: By arming herself, Caetano was able to protect against a physical threat that restraining orders had proved useless to pre­vent. And, commendably, she did so by using a weapon that posed little, if any, danger of permanently harming either herself or the father of her children. Under Massachusetts law, however, Caetano's mere possession of the stun gun that may have saved her life made her a criminal. See Mass. Gen. Laws, ch. 140, §131J (2014). When police later discovered the weapon, she was arrested, tried, and convicted. The Massachusetts Su­preme Judicial Court affirmed the conviction, holding that a stun gun "is not the type of weapon that is eligible for Second Amendment protection" because it was "not in common use at the time of [the Second Amendment's] enactment." 470 Mass., at 781, 26 N. E. 3d, at 693. This reasoning defies our decision in Heller, which rejected as "bordering on the frivolous" the argument "that only those arms in existence in the 18th century are pro­tected by the Second Amendment." 554 U. S., at 582. The decision below also does a grave disservice to vulnerable individuals like Caetano who must defend themselves because the State will not. The events leading to Caetano's prosecution occurred sometime after the confrontation between her and her ex-boyfriend. In September 2011, police officers responded to a reported shoplifting at an Ashland, Massachusetts, supermarket. The store's manager had detained a sus­pect, but he identified Caetano and another person in the parking lot as potential accomplices. Police approached the two and obtained Caetano's consent to search her I Cite as: 577 U. S._(2016) 3 ALITO, J., concurring in judgment purse. They found no evidence of shoplifting, but saw Caetano's stun gun. Caetano explained to the officers that she had acquired the weapon to defend herself against a violent ex-boyfriend. The officers believed Caetano, but they arrested her for violating Mass. Gen. Laws, ch. 140, §131J, "which bans entirely the possession of an electrical weapon," 470 Mass., at 775, 26 N. E. 3d, at 689.1 When Caetano moved to dismiss the charge on Second Amendment grounds, the trial court denied the motion. A subsequent bench trial established the following undisputed facts. The parties stipulated that Caetano possessed the stun gun and that the weapon fell within the statute's prohibition.2 The Commonwealth also did not challenge Caetano's testimony that she possessed the weapon to defend herself against the violent ex-boyfriend. Indeed, the prosecutor urged the court "to believe the defendant." Tr. 40. The trial court nonetheless found __________ 1 Specifically, the statute prohibits the possession of any "portable device or weapon from which an electrical current, impulse, wave or beam may be directed, which current, impulse, wave or beam is de­signed to incapacitate temporarily, injure or kill." Mass. Gen. Laws, ch. 140, §131J (2014). The statute includes exceptions for law-enforcement officers and weapon suppliers, who may possess electrical weapons "designed to incapacitate temporarily." Ibid. Violations are punishable by a fine of $500 to $1,000, imprisonment of 6 months to 2% years, or both. Ibid. 2 Stun guns like Caetano's "are designed to stun a person with an electrical current" by running a current between two metal prongs on the device and placing the prongs in direct contact with the person. 470 Mass. 774, 775, n. 2, 26 N. E. 3d 688, 689, n. 2 (2015). A similar device, popularly known by the brand name "Taser," shoots out wires tipped with electrodes that can deliver an electrical current from a distance. Tr. 25-26. Tasers can also be used like a stun gun without deploying the electrodes—a so-called "dry stun." Id., at 26. As the Common­wealth's witness testified at trial, these sorts of electrical weapons are "non-lethal force" "designed to incapacitate"—"not kill"—a target. Id., at 27. 4 CAETANO v. MASSACHUSETTS ALITO, J., concurring in judgment Caetano guilty, and she appealed to the Massachusetts Supreme Judicial Court. The Supreme Judicial Court rejected Caetano's Second Amendment claim, holding that "a stun gun is not the type of weapon that is eligible for Second Amendment protec­tion." 470 Mass., at 775, 26 N. E. 3d, at 689. The court reasoned that stun guns are unprotected because they were "not 'in common use at the time' of enactment of the Second Amendment," id., at 781, 26 N. E. 3d, at 693 (quot­ing Heller, supra, at 627), and because they fall within the "traditional prohibition against carrying dangerous and unusual weapons," 470 Mass., at 779, 26 N. E. 3d, at 692 (citing Heller, supra, at 627). II Although the Supreme Judicial Court professed to apply Heller, each step of its analysis defied Heller's reasoning. A The state court repeatedly framed the question before it as whether a particular weapon was " 'in common use at the time' of enactment of the Second Amendment." 470 Mass., at 781, 26 N. E. 3d, at 693; see also id., at 779, 780, 781, 26 N. E. 3d, at 692, 693, 694. In Heller, we emphati­cally rejected such a formulation. We found the argument "that only those arms in existence in the 18th century are protected by the Second Amendment" not merely wrong, but "bordering on the frivolous." 554 U. S., at 582. In­stead, we held that "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." Ibid. (emphasis added).3 It is hard to __________ 3 Stun guns are plainly "bearable arms." As Heller explained, the term includes any "[w]eapo[n] of offence" or "thing that a man wears for his defence, or takes into his hands," that is "carr[ied] . . . for the purpose of offensive or defensive action." 554 U. S., at 581, 584 (inter- Cite as: 577 U. S._(2016) 5 ALITO, J., concurring in judgment imagine language speaking more directly to the point. Yet the Supreme Judicial Court did not so much as mention it. Instead, the court seized on language, originating in United States v. Miller, 307 U. S. 174 (1939), that "'the sorts of weapons protected were those "in common use at the time."'" 470 Mass., at 778, 26 N. E. 3d, at 692 (quot­ing Heller, supra, at 627, in turn quoting Miller, supra, at 179). That quotation does not mean, as the court below thought, that only weapons popular in 1789 are covered by the Second Amendment. It simply reflects the reality that the founding-era militia consisted of citizens "who would bring the sorts of lawful weapons that they possessed at home to militia duty," Heller, 554 U. S., at 627, and that the Second Amendment accordingly guarantees the right to carry weapons "typically possessed by law-abiding citizens for lawful purposes," id., at 625. While stun guns were not in existence at the end of the 18th century, the same is true for the weapons most commonly used today for self-defense, namely, revolvers and semiautomatic pistols. Revolvers were virtually unknown until well into the 19th century,4 and semiautomatic pistols were not invented until near the end of that century.5 Electronic stun guns are no more exempt from the Second Amend­ment's protections, simply because they were unknown to the First Congress, than electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment. Id., at 582 (citing Reno v. American Civil Liberties Union, 521 __________ nal quotation marks omitted). 4 See J. Bilby, A Revolution in Arms: A History of the First Repeating Rifles 23 (2006). Samuel Colt did not patent his famous revolver until 1836. Ibid. 5 See Firearms: An Illustrated History 166 (2014); see also W. Greener, The Gun and Its Development 524-529, 531-534 (9th ed. 1910) (dis­cussing revolvers and self-loading semiautomatic pistols as "modern pistols"). 6 CAETANO v. MASSACHUSETTS ALITO, J., concurring in judgment U. S. 844, 849 (1997), and Kyllo v. United States, 533 U. S. 27, 35-36 (2001)). As Heller aptly put it: "We do not inter­pret constitutional rights that way." 554 U. S., at 582. B The Supreme Judicial Court's holding that stun guns may be banned as "dangerous and unusual weapons" fares no better. As the per curiam opinion recognizes, this is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual. Because the Court rejects the lower court's conclusion that stun guns are "unusual," it does not need to consider the lower court's conclusion that they are also "dangerous." See ante, at 1-2. But make no mistake—the decision below gravely erred on both grounds. 1 As to "dangerous," the court below held that a weapon is "dangerous per se" if it is " 'designed and constructed to produce death or great bodily harm' and 'for the purpose of bodily assault or defense.'" 470 Mass., at 779, 26 N. E. 3d, at 692 (quoting Commonwealth v. Appleby, 380 Mass. 296, 303, 402 N. E. 2d 1051, 1056 (1980)). That test may be appropriate for applying statutes criminalizing assault with a dangerous weapon. See ibid., 402 N. E. 2d, at 1056. But it cannot be used to identify arms that fall outside the Second Amendment. First, the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes. See Heller, supra, at 627 (contrasting "'dangerous and unusual weap­ons' " that may be banned with protected "weapons . . . 'in common use at the time' "). Second, even in cases where dangerousness might be relevant, the Supreme Judicial Court's test sweeps far too broadly. Heller defined the "Arms" covered by the Second Amendment to include " 'any thing that a man wears for his defence, or takes into his Cite as: 577 U. S._(2016) 7 ALITO, J., concurring in judgment hands, or useth in wrath to cast at or strike another.'" 554 U. S., at 581. Under the decision below, however, virtually every covered arm would qualify as "dangerous." Were there any doubt on this point, one need only look at the court's first example of "dangerous per se" weapons: "firearms." 470 Mass., at 779, 26 N. E. 3d, at 692. If Heller tells us anything, it is that firearms cannot be categorically prohibited just because they are dangerous. 554 U. S., at 636. A fortiori, stun guns that the Common­wealth's own witness described as "non-lethal force," Tr. 27, cannot be banned on that basis. 2 The Supreme Judicial Court's conclusion that stun guns are "unusual" rested largely on its premise that one must ask whether a weapon was commonly used in 1789. See 470 Mass., at 780-781, 26 N. E. 3d, at 693-694. As al­ready discussed, that is simply wrong. See supra, at 4-6. The court also opined that a weapon's unusualness depends on whether "it is a weapon of warfare to be used by the militia." 470 Mass., at 780, 26 N. E. 3d, at 693. It asserted that we followed such an approach in Miller and "approved its use in Heller." 470 Mass., at 780, 26 N. E. 3d, at 693. But Heller actually said that it would be a "startling reading" of Miller to conclude that "only those weapons useful in warfare are protected." 554 U. S., at 624. Instead, Miller and Heller recognized that militia members traditionally reported for duty carrying "the sorts of lawful weapons that they possessed at home," and that the Second Amendment therefore protects such weapons as a class, regardless of any particular weapon's suitability for military use. 554 U. S., at 627; see id., at 624-625. Indeed, Heller acknowledged that advancements in military technology might render many commonly owned weapons ineffective in warfare. Id., at 627-628. But such "modern developments . . . cannot change our 8 CAETANO v. MASSACHUSETTS ALITO, J., concurring in judgment interpretation of the right." Ibid. In any event, the Supreme Judicial Court's assumption that stun guns are unsuited for militia or military use is untenable. Section 131J allows law enforcement and correctional officers to carry stun guns and Tasers, pre­sumably for such purposes as nonlethal crowd control. Subduing members of a mob is little different from "sup­pressing] Insurrections," a traditional role of the militia. U. S. Const., Art. I, §8, cl. 15; see also ibid. (militia may be called forth "to execute the Laws of the Union"). Addition­ally, several branches of the U. S. armed services equip troops with electrical stun weapons to "incapacitate a target without permanent injury or known side effects." U. S. Army, Project Manager Close Combat Systems, PD Combat Munitions: Launched Electrode Stun Device (LESD), http://www.pica.army.mil/pmccs/combatmunitions/nonlethalsys/taserx26e.html (all Internet materials as last visited Mar. 18, 2016); see U. S. Marine Corps Admin­istrative Message 560/08 (Oct. 2, 2008) (Marine Corps guidance for use of Tasers), http://www.marines.mil/News/Messages/MessagesDisplay/tabid/13286/Article/1130 24/marine-corps-training-and-use-of-human-electro-muscular-incapacitation-hemi-dev.aspx; Joint Non-Lethal Weapons Directorate, Non-Lethal Weapons (NLW) Reference Book 3 (2012) (Department of Defense report stating that "[m]ultiple Services employ" Tasers), http://dtic.mil/dtic/tr/fulltext/u2/a565971.pdf. C As the foregoing makes clear, the pertinent Second Amendment inquiry is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today. The Supreme Judicial Court offered only a cursory discussion of that question, noting that the "'number of Tasers and stun guns is dwarfed by the number of fire­arms.'" 470 Mass., at 781, 26 N. E. 3d, at 693. This ob- Cite as: 577 U. S._(2016) 9 ALITO, J., concurring in judgment servation may be true, but it is beside the point. Other­wise, a State would be free to ban all weapons except handguns, because "handguns are the most popular weapon chosen by Americans for self-defense in the home." Heller, supra,at 629. The more relevant statistic is that "[h]undreds of thou­sands of Tasers and stun guns have been sold to private citizens," who it appears may lawfully possess them in 45 States. People v. Yanna, 297 Mich. App. 137, 144, 824 N. W. 2d 241, 245 (2012) (holding Michigan stun gun ban unconstitutional); see Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights To Keep and Bear Arms and Defend Life, 62 Stan. L. Rev. 199, 244 (2009) (citing stun gun bans in seven States); Wis. Stat. §941.295 (Supp. 2015) (amended Wisconsin law permitting stun gun possession); see also Brief in Opposi­tion 11 (acknowledging that "approximately 200,000 civil­ians owned stun guns" as of 2009). While less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country. Massachusetts' categorical ban of such weapons therefore violates the Second Amendment. III The lower court's ill treatment of Heller cannot stand. The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense. The Su­preme Judicial Court suggested that Caetano could have simply gotten a firearm to defend herself. 470 Mass., at 783, 26 N. E. 3d, at 695. But the right to bear other weap­ons is "no answer" to a ban on the possession of protected arms. Heller, 554 U. S., at 629. Moreover, a weapon is an effective means of self-defense only if one is prepared to use it, and it is presumptuous to tell Caetano she should have been ready to shoot the father of her two young children if she wanted to protect herself. Courts should 10 CAETANO v. MASSACHUSETTS ALITO, J., concurring in judgment not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding.6 Countless people may have reservations about using deadly force, whether for moral, religious, or emotional reasons—or simply out of fear of killing the wrong person. See Brief for Arming Women Against Rape & Endanger-ment as Amicus Curiae 4-5. "Self-defense," however, "is a basic right." McDonald, 561 U. S., at 767. I am not pre­pared to say that a State may force an individual to choose between exercising that right and following her con­science, at least where both can be accommodated by a weapon already in widespread use across the Nation. * * * A State's most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsi­est of grounds. This Court's grudging per curiam now sends the case back to that same court. And the conse­quences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense. See Pet. for Cert. 14. If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe. __________ 6 The court below also noted that Massachusetts no longer requires a license to possess mace or pepper spray. 470 Mass., at 783, 26 N. E. 3d, at 695. But the law was changed in 2014, after Caetano was convicted. A spray can also be foiled by a stiff breeze, while a stun gun cannot. In July 2016, Massachusetts dropped the charges. nolu chan  posted on  2018-05-19   0:28:28 ET  Reply   Untrace   Trace   Private Reply   Replies to Comment # 95. #102. To: nolu chan (#95) The Massachusetts case came after the Heller decision, so you can expect weird, convoluted second amendment rulings from here on out. The Massachusetts Supreme Court was correct -- the second amendment does not protect stun guns or sawed-off shotguns or zip guns or any other weapon not suitable for a miliria. That's not to say citizens can't have them if their state constitution protects them. Just that they're not protected by the second amendment. Now, this case proves the point I've been making since Heller was decided. Five justices on the The U.S. Supreme Court now get to define the word "arms" in the second amendment for everyone. Not the people. Not the city. Not the state. Five unelected, appointed-for-life Federal judges. You bring up the Massachusetts ruling like it's a good thing because the U.S. Supreme Court forced Massachusetts to allow stun guns. The citizens of Massachusetts don't want civilians to have stun guns. Tough shit, citizens. BUT what happens when some future, liberal U.S. Supreme Court defines arms as not including "assault rifles" -- the very weapons needed for protection from an out-of-control government? Still a good idea when the ruling goes against you? misterwhite  posted on  2018-05-19 09:40:03 ET  Reply   Untrace   Trace   Private Reply   End Trace Mode for Comment # 95. Top • Page Up • Full Thread • Page Down • Bottom/Latest

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