NYC CCW case is at SCOTUS!

camo556 said:

12 days to.. Christmas?

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Hmmm... not yet. The Supreme Court of MDS is not finished arguing the case.

jcutonilli said:

You stated

Your argument here amounts to the claim that governments never violate the "common use" test

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You followed up by saying

... your claim amounts to that. Which is to say, it logically is the equivalent of that, even if you didn't say it directly

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I even tried to explain why the original claim was incorrect.

Since you believe the first statement to be logically equivalent, I thought it prudent to point out that you were not actually using logic to make the statement.

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Hrm, well, I thought the argument you were making was that the government wouldn't ban weapons in "common use", by way of a perhaps rhetorical statement:

jcutonilli said:

If machine guns were really commonly used, why would the government prohibit them. There would be no support to do that. The reason the law was able to pass was because the were not commonly used.

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I took that statement and ran with it. Did you really mean to state the above in the way you did? Because I extended it to any commonly used weapon, i.e., if a weapon is commonly used, why would the government prohibit it. And I did so because I can see no reason you would say the above of machine guns and simultaneously expect it to not apply to all other commonly used arms.

If your argument here isn't that the government wouldn't ban weapons in common use, why did you state the above in the first place? You were clearly attempting to make a point, but it's now unclear what that point was. Please elaborate.

kcbrown said:

Hrm, well, I thought the argument you were making was that the government wouldn't ban weapons in "common use", by way of a perhaps rhetorical statement:



I took that statement and ran with it. Did you really mean to state the above in the way you did? Because I extended it to any commonly used weapon, i.e., if a weapon is commonly used, why would the government prohibit it. And I did so because I can see no reason you would say the above of machine guns and simultaneously expect it to not apply to all other commonly used arms.

If your argument here isn't that the government wouldn't ban weapons in common use, why did you state the above in the first place? You were clearly attempting to make a point, but it's now unclear what that point was. Please elaborate.

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It was meant to understand why the government was banning arms that are supposedly in "common use". Bans (no use) and "common use" tend to be opposites and not associated together.

The political process certainly can be used to determine if anyone really cares if the particular arm is banned. It certainly does nothing or says anything about what the government is doing with the arm. The government certainly does ban certain arms for certain people but allow them for government employees for use in society.

If arms are truly in "common use" then the government should not ban them. The government does things it shouldn't however.

Heller seems to suggest that you should not look at just a military use to justify "common use". It suggests that how society uses them is what qualifies as "common use". I believe police use of arms should qualify as a way to demonstrate "common use".

Machine guns seem to be in a grey area. While they are in use, are they really in "common use" because most police don't use them.

jcutonilli said:

Machine guns seem to be in a grey area. While they are in use, are they really in "common use" because most police don't use them.

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Thirty years ago, that would have been true. With the widespread adoption of patrol carbines in lieu of shotguns, and the routine issue of submachine guns to SWAT teams, I'm not sure that is the case any longer.

Mike OTDP said:

Thirty years ago, that would have been true. With the widespread adoption of patrol carbines in lieu of shotguns, and the routine issue of submachine guns to SWAT teams, I'm not sure that is the case any longer.

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And since there are over 500 to thousand or more,I am guessing, SWAT Teams in the US,wouldn't that be sub guns are "in common use"?

jcutonilli said:

It was meant to understand why the government was banning arms that are supposedly in "common use". Bans (no use) and "common use" tend to be opposites and not associated together.

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Okay, now I follow. Thanks for the clarification.

While bans and "common use" tend to be opposites, the issue is that bans can be used to force the absence of "common use", and thus bootstrap themselves into Constitutionality. But clearly that's improper on its face, no?

And again, it also means that if the government manages to get its ban in early enough, then it can keep an arm from ever achieving "common use" status.

Of course, that's not an issue if government arms are included in the test. But we both know that, when it comes down to it, the government will always argue that it should be the sole possessor of weapons, and that it most certainly should be the sole possessor of any weapons that could be used by the citizenry to effectively challenge the government's power should it come to that. And that is a direct affront to the stated purpose of the 2nd Amendment.

Heller seems to suggest that you should not look at just a military use to justify "common use". It suggests that how society uses them is what qualifies as "common use". I believe police use of arms should qualify as a way to demonstrate "common use".

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That would help, of course, but if we shouldn't look at military use to justify "common use", then why should we look at police use? Both are arms of the government, and Heller doesn't give us any reason to treat them differently. In fact, Heller provides no justification whatsoever for excluding the military from the "common use" test. The test by itself, absent some kludge like what Heller is implying, would certainly find that the vast majority of arms held by the military are protected.

What is your opinion of the statement in Heller that the arms that aren't protected are arms that are "not typically possessed by law-abiding citizens for lawful purposes"? Military arms would certainly not fall into the "not protected" category under that test, because military arms are typically possessed by law-abiding citizens (military members are law-abiding citizens, quite possibly to a man) and are possessed for lawful purposes (military actions are authorized by the government under the authority of a legitimately passed law, and therefore I expect almost always qualify as being "lawful").

That is a slightly different test from "common use", and may be closer to the intent that you had in mind. It even has the possibility of avoiding numbers altogether, since one could simply state that "typically possessed" means "possessed more often than not".

Machine guns seem to be in a grey area. While they are in use, are they really in "common use" because most police don't use them.

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This is exactly why you can't escape the use of numbers and arbitrary cutoffs when using a "common use" test. You have no choice but to use such things to answer questions like that. At least, I can think of no way to do so that wouldn't involve numbers of some kind.

jcutonilli said:

Public safety in this context is referring to the government's police power. https://en.wikipedia.org/wiki/Police_power_(United_States_constitutional_law)

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The government's police power is a general power. Public safety is a justification for its use. That means the two have separate meanings. Unfortunately, this means that the police power context isn't enlightening as to the meaning of "public safety", at least that I can see. Please clarify if possible.

While scrutiny is not specifically mentioned in the Constitution, there is nothing in the Constitution that forbids it. There is nothing in the Constitution that "dictates" how a case is to be decided. The Constitution simply grants judicial power to the courts. This provides some flexibility on how cases are decided.

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That's true, but I didn't argue that scrutiny is forbidden by the Constitution. I argued that results of its use are forbidden when they are contradicted by the plainly understood original meaning of the Constitution or the original understanding that went into that.

Put another way, scrutiny is no substitute for the originally understood plain meaning of the Constitution, and whenever or wherever they conflict, it is the latter, and not the former, which must win.

The reason I mentioned that scrutiny is a recent invention is to show why it cannot be a replacement for original understanding.

Not everyone agrees that originalism should be the method used to evaluate the Constitution.

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That's true, too. But they're wrong. And we can use an example to make that clear. Suppose you're making a legal argument to the court. Is it "valid" for the court to interpret your argument in exactly the opposite manner that you intended, especially when the plain meaning of the words you used, when used in their well-understood manner, would yield an understanding of your argument that matches yours?

I argue that it is clearly invalid for the court to interpret your argument that way. And this is so because the meaning behind your argument has a purpose that you alone properly define. You crafted your argument precisely for the purpose you assigned it.

And we have procedures that we routinely use that recognize the truth of the above. When we feel we don't understand what someone is saying, we ask them to clarify their meaning. When they're not available to ask, we look for other things that might yield the clarity we seek. We don't simply assert that the meaning must be what we want it to be. This is how we all do things in our daily communications with others. And as evidence, I supply your own reaction to the conclusions I drew from what you stated about "common use": you called it a strawman. Had I not asked you to clarify as I did, had I proceeded as if my interpretation of your statement was the correct one, I dare say you would have been mightily annoyed, and rightly so, precisely because the proper way to interpret what others say is on the basis of their intended meaning.


Now let's say that a much later court is looking at your argument. Is it "valid" for that court to interpret your argument using meanings that differ from the ones that were in play at the time you made it? I argue that the answer is clearly "no", and for the same reason: your argument had a purpose, that purpose was defined by you, and that purpose is presumably still in play at the time this later court is examining it (if that purpose is no longer in play then your argument no longer has any validity and the court shouldn't be considering it at all, but the only way to know whether or not it still has any validity is by understanding its original meaning in the first place).

We don't ever say "well, things have changed, so what you said must mean something else now".


The reason that originalism is correct is that it recognizes that the proper meaning of any communication is that which its authors intended. And we all know this to be the case because we all proceed in this fashion as if it's true when dealing with others. And we recognize that anyone who fails to do so is behaving in an unreasonable manner. The courts are no exception to this. It is no less improper for the courts to read something to mean anything other than its originators intended than it is for any of us to.

One of the things you need to remember about the 2A is that it does not define what the right actually is. The limitations of the right come from understanding the extent of the right as it was understood at the time of the founding. One of the concepts articulated in Heller was that it only protected commonly used arms.

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It is true that Heller makes that claim. But the basis of that claim doesn't come from the post-Revolution era, but from before. But as I said, it is the understanding of the founders themselves at the time the 2nd Amendment was adopted that controls here, and the very fact that they fought a revolution against the very entity that Heller basis its conclusions on, using privately-owned weapons that were not "commonly used", should make it obvious that there is at least some conflict between pre-Revolution understanding and post-Revolution understanding, and it is the latter, and not the former, which controls.

One of the things that has changed with time is the connection between the military and society. Now that there is a separation, the arms that are unusual in society (not commonly used) may not be protected.

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But that conflicts with the stated purpose of the 2nd Amendment. Modern developments cannot be used to override an explicitly stated purpose in the Constitution unless the principles behind that stated purpose are no longer applicable. But here, they are just as applicable now as they ever have been, because only a properly armed citizenry can ensure that the government cannot become tyrannical.

This all comes down to whether or not the citizenry has the right to liberty. If it doesn't, then we're pretty much done. If it does, then it has the right to the means necessary to assert that right. This is so because a right is meaningless if it cannot successfully be asserted. The right to arms flows in part from the right of the citizenry to prevail against a tyrannical government, and that right is meaningless if the citizenry is denied the means to prevail. And the right of the citizenry to prevail against a tyrannical government flows directly from the right to liberty.

This is no different from self-defense. The right to self-defense is derived from the right to life. This is so because your right to life is meaningless if you haven't the right to defend it. And your right to self-defense is meaningless if you haven't the right to prevail in a self-defense encounter. And your right to prevail is meaningless without the right to the means to prevail.


Hence, the right to arms flows from two separate rights: the right to liberty and the right to life.

My understanding of artillery ammo is that non exploding ammo is treated like normal ammo, but each round of exploding ammo is considered a separate destructive device. A $200 tax stamp is required for each exploding round.

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Hmm...a bit excessive, but interesting point. A case challenging that as being excessive for the same reason that such an imposition on ammunition in general would be excessive might be warranted at some point. But I think we've got a long way to go before we get there.

https://sites.law.duke.edu/secondthoughts/2019/12/05/the-text-history-and-tradition-alternative/

If the Supreme Court does eventually adopt a test focused on, history, an textd tradition, it ought to at least stay consistent with how it has employed that type of analysis for other constitutional rights. After all, as Justice Alito said in McDonald—and Justice Sotomayor echoed in the NYSRPA oral arguments—the Second Amendment should not be “subject to an entirely different body of rules than the other Bill of Rights guarantees.” But the gun-rights advocates’ version of the THT test would do just that. It would turn the Second Amendment, in Timothy Zick’s words, into “a kind of super-right, one defined in absolute terms and buttressed by the most rigid standards.”

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Add bonus would be the court actually adapted this test--T H T-- no more tier of scrutiny or interest balancing.

If something isn't in common use what's the point of banning it for societies safety? If no one is using it, like wtf is the point?

MULE-JK said:

If something isn't in common use what's the point of banning it for societies safety? If no one is using it, like wtf is the point?

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Biological weapons aren’t in common use. I sure as shit don’t want anyone being legally allowed to possess them. Hell, I don’t particularly want the government to possess them beyond maybe engineering counters for them.

An antimatter bomb is possessed by exactly zero people right now. I sure don’t want that to ever be allowed by a private citizen (and maybe not by any government either).

If you want the rhetorical argument I can give
You sound rationales why some things should be banned that no one privately possesses that we are aware of (or rarely do).

lazarus said:

Biological weapons aren’t in common use

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Steven Hatfield would have something to say, and as well as Anthony Fauci funding the Wuhan Lab.

Thisss eneving I deciiiedd to cacth upon tihs thrred and take a shot evvry tmie Continilli, Esqiure said "historicall prohibbitionb*
Hehe havn a goood tmie ovr heaerr hehe

Sent from my Pixel 5 using Tapatalk

lazarus said:

Biological weapons aren’t in common use. I sure as shit don’t want anyone being legally allowed to possess them.

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What do you expect a ban on them to accomplish? Someone with ill intent who is able to get his hands on one won't give a damn about the law. That much should be clear with the various attempts at using anthrax and other agents by people with ill intent.

Hell, I don’t particularly want the government to possess them beyond maybe engineering counters for them.

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Governments have killed orders of magnitude more people than private citizens ever have, and the lower number at the hands of private citizens is not because of laws against possession of weapons. On that basis alone, if you have to choose between private citizens owning WMDs and governments possessing them, it would be understandable if you choose private citizens.

An antimatter bomb is possessed by exactly zero people right now. I sure don’t want that to ever be allowed by a private citizen (and maybe not by any government either).

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The reasoning above applies here as well.

Honestly, with respect to private ownership of any arms, the main concern is accidents. So you absolutely need to ensure that the weapons in question have the proper safety mechanisms, are stored properly (both in terms of how they're stored and where they're stored), etc.

You could control storage via laws such as one that states, for instance, that the only valid places for storing WMDs are ones that are some minimum distance from any other person, or at least that distance from an area with a given population density, would obviously be permissible.

If you want the rhetorical argument I can give
You sound rationales why some things should be banned that no one privately possesses that we are aware of (or rarely do).

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The question ultimately comes down to this: what does the ban accomplish that laws which impose requirements and limitations cannot?


Does the citizenry have the right to liberty or not? If it does, and if WMDs happen to be necessary for the citizenry to be able to guarantee its liberty, then are you going to insist on bans anyway, and thus insist that the citizenry doesn't actually have an operative right to liberty?

I'm fully aware of the numerous substantial problems that go with weapons with the kind of power that WMDs have. It may even be that you have no reasonable choice but to regard them as an exception to the general right to arms. But as I already argued, the founders themselves chose liberty over life, as evidenced by their words and actions. Maybe WMDs aren't necessary for the citizenry to prevail against a tyrannical government, and if they're not, then a ban on them would be permissible. But you get to make a mistake on this only once. Once the ban is in place, you're almost certain to never be rid of it, so if it happens that the citizenry would need them in the future, then you will be dooming them to servitude by allowing a ban now.


So think it through very carefully.

OneGunTex said:

Thisss eneving I deciiiedd to cacth upon tihs thrred and take a shot evvry tmie Continilli, Esqiure said "historicall prohibbitionb*
Hehe havn a goood tmie ovr heaerr hehe

Sent from my Pixel 5 using Tapatalk

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kcbrown said:

So think it through very carefully.

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The philosophical territory surrounding WMDs is interesting for sure, private-citizen-wise.

Obviously private citizens routinely possess the elements of them - like farmers with mountains of fertilizer and tanks full of diesel. Or various trades with access to buckets of very, very nasty chemical precursors to some seriously evil crap.

If I had to draw a line somewhere, I suppose it would be when possession of something occurs in a form/condition where the substance or device is wildly dangerous as it sits, and requires extraordinary expertise and care to prevent it from doing something ghastly. A gun - including a crew-served MG - isn't going to suddenly "go off" in my storage. But a truck loaded with barrels of already-mixed anfo with blasting caps already dipped in, sitting in my neighborhood garage in case I might someday need it - that is one lightning strike or other twist of fate away from going Big Badda Boom and taking out a block of houses.

In short, it's possible to possess something (say, a finicky little tactical nuke, or that ready-to-eat anfo payload) that just by its very existence outside some serious talent and proper facilities, is essentially reckless endangerment. No firearm can realistically enter that territory, shy of something like a shotgun rigged to doorknob.

Definitely an "I'll know it when I see it" situation - but I can for sure conjure up various weapon-ish things that are - as they sit there - actively in need of skilled maintenance and dangerous to other people when merely passively neglected. Chem/bio/radiological things sure come to mind. The personal Ma Deuce in a house can sit there for an eternity and never shoot up the neighborhood if there's a fire.

OneGunTex said:

Thisss eneving I deciiiedd to cacth upon tihs thrred and take a shot evvry tmie Continilli, Esqiure said "historicall prohibbitionb*
Hehe havn a goood tmie ovr heaerr hehe

Sent from my Pixel 5 using Tapatalk

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Occam said:

The philosophical territory surrounding WMDs is interesting for sure, private-citizen-wise.

Obviously private citizens routinely possess the elements of them - like farmers with mountains of fertilizer and tanks full of diesel. Or various trades with access to buckets of very, very nasty chemical precursors to some seriously evil crap.

If I had to draw a line somewhere, I suppose it would be when possession of something occurs in a form/condition where the substance or device is wildly dangerous as it sits, and requires extraordinary expertise and care to prevent it from doing something ghastly. A gun - including a crew-served MG - isn't going to suddenly "go off" in my storage. But a truck loaded with barrels of already-mixed anfo with blasting caps already dipped in, sitting in my neighborhood garage in case I might someday need it - that is one lightning strike or other twist of fate away from going Big Badda Boom and taking out a block of houses.

In short, it's possible to possess something (say, a finicky little tactical nuke, or that ready-to-eat anfo payload) that just by its very existence outside some serious talent and proper facilities, is essentially reckless endangerment. No firearm can realistically enter that territory, shy of something like a shotgun rigged to doorknob.

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I completely agree. But here's the thing: you don't have to prohibit ownership of these things in order to deal with that. The things you're talking about are routinely dealt with in other ways, e.g. with safety regulations, training requirements, design and implementation requirements (e.g., safety feature requirements), etc.

A ban on ownership might be justifiable if the nature of what is being banned is such that it can't be owned safely even in the face of regulations such as that. But if something is that dangerous then it shouldn't be held by anyone, including the government.


Nuclear weapons are actually a good example of items which would be supremely dangerous if misused but which are designed in such a way that they will not go off uncommanded. There's an enormous amount of safety engineering that goes into them. The primary worry with respect to them is deliberate misuse. And if they were relatively inexpensive, then that too might be a legitimate concern that we'd have to somehow figure out. But they're so expensive that mere mortals can't afford them anyway. Is that enough to keep the worst case from happening if private citizens weren't banned ownership? Perhaps not.

All I can say is this: the citizenry doesn't have a real right to be free of tyranny unless it can possess everything, both now and in the future, that it would need to successfully restrain a well-armed and well-armored government. Maybe weapons with the power that nuclear weapons have would never be needed by the citizenry for that. But a compelling case would have to be made for that before one could definitively say that private ownership of such weapons should never be allowed at all.

kcbrown said:

Okay, now I follow. Thanks for the clarification.

While bans and "common use" tend to be opposites, the issue is that bans can be used to force the absence of "common use", and thus bootstrap themselves into Constitutionality. But clearly that's improper on its face, no?

And again, it also means that if the government manages to get its ban in early enough, then it can keep an arm from ever achieving "common use" status.

Of course, that's not an issue if government arms are included in the test. But we both know that, when it comes down to it, the government will always argue that it should be the sole possessor of weapons, and that it most certainly should be the sole possessor of any weapons that could be used by the citizenry to effectively challenge the government's power should it come to that. And that is a direct affront to the stated purpose of the 2nd Amendment.




That would help, of course, but if we shouldn't look at military use to justify "common use", then why should we look at police use? Both are arms of the government, and Heller doesn't give us any reason to treat them differently. In fact, Heller provides no justification whatsoever for excluding the military from the "common use" test. The test by itself, absent some kludge like what Heller is implying, would certainly find that the vast majority of arms held by the military are protected.

What is your opinion of the statement in Heller that the arms that aren't protected are arms that are "not typically possessed by law-abiding citizens for lawful purposes"? Military arms would certainly not fall into the "not protected" category under that test, because military arms are typically possessed by law-abiding citizens (military members are law-abiding citizens, quite possibly to a man) and are possessed for lawful purposes (military actions are authorized by the government under the authority of a legitimately passed law, and therefore I expect almost always qualify as being "lawful").

That is a slightly different test from "common use", and may be closer to the intent that you had in mind. It even has the possibility of avoiding numbers altogether, since one could simply state that "typically possessed" means "possessed more often than not".




This is exactly why you can't escape the use of numbers and arbitrary cutoffs when using a "common use" test. You have no choice but to use such things to answer questions like that. At least, I can think of no way to do so that wouldn't involve numbers of some kind.

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Bans do force arms into the unusual category and away from "common use". The legitimacy of the ban depends on the reasons why. If there are legitimate reasons then it should be acceptable. The Geneva Convention would be an example of legitimate bans on commonly used arms. The continued use may become unacceptable in society. Bioweapons would be an example of unusual arms that should not be allowed to become common.

There certainly are illegitimate bans also. Bans that prevent the public from common use, but not government. Most bans tend to be illegitimate.

The reason that I believe we should look at police use is that its very nature is societal based and would define common use. The military were used as police at the time of the founding. We separated this function out, which is why there is not a much of a direct link to the military.

Common use is looking at what is included in the right, while not typically possessed by law-abiding citizens for lawful purposes is looking at what is excluded. I think the key word is lawful and can be understood to represent societal standards. It is typically considered unlawful to wage war against civilians.

You can escape the use of numbers. What needs to be determined is if the are "possessed more often than not". If they are only possessed by a limited number of highly specialized officers, then they are not possessed more often than not, but if most officers are using them as backup, then it could be argued that they are possessed more often than not.

kcbrown said:

The government's police power is a general power. Public safety is a justification for its use. That means the two have separate meanings. Unfortunately, this means that the police power context isn't enlightening as to the meaning of "public safety", at least that I can see. Please clarify if possible.




That's true, but I didn't argue that scrutiny is forbidden by the Constitution. I argued that results of its use are forbidden when they are contradicted by the plainly understood original meaning of the Constitution or the original understanding that went into that.

Put another way, scrutiny is no substitute for the originally understood plain meaning of the Constitution, and whenever or wherever they conflict, it is the latter, and not the former, which must win.

The reason I mentioned that scrutiny is a recent invention is to show why it cannot be a replacement for original understanding.




That's true, too. But they're wrong. And we can use an example to make that clear. Suppose you're making a legal argument to the court. Is it "valid" for the court to interpret your argument in exactly the opposite manner that you intended, especially when the plain meaning of the words you used, when used in their well-understood manner, would yield an understanding of your argument that matches yours?

I argue that it is clearly invalid for the court to interpret your argument that way. And this is so because the meaning behind your argument has a purpose that you alone properly define. You crafted your argument precisely for the purpose you assigned it.

And we have procedures that we routinely use that recognize the truth of the above. When we feel we don't understand what someone is saying, we ask them to clarify their meaning. When they're not available to ask, we look for other things that might yield the clarity we seek. We don't simply assert that the meaning must be what we want it to be. This is how we all do things in our daily communications with others. And as evidence, I supply your own reaction to the conclusions I drew from what you stated about "common use": you called it a strawman. Had I not asked you to clarify as I did, had I proceeded as if my interpretation of your statement was the correct one, I dare say you would have been mightily annoyed, and rightly so, precisely because the proper way to interpret what others say is on the basis of their intended meaning.


Now let's say that a much later court is looking at your argument. Is it "valid" for that court to interpret your argument using meanings that differ from the ones that were in play at the time you made it? I argue that the answer is clearly "no", and for the same reason: your argument had a purpose, that purpose was defined by you, and that purpose is presumably still in play at the time this later court is examining it (if that purpose is no longer in play then your argument no longer has any validity and the court shouldn't be considering it at all, but the only way to know whether or not it still has any validity is by understanding its original meaning in the first place).

We don't ever say "well, things have changed, so what you said must mean something else now".


The reason that originalism is correct is that it recognizes that the proper meaning of any communication is that which its authors intended. And we all know this to be the case because we all proceed in this fashion as if it's true when dealing with others. And we recognize that anyone who fails to do so is behaving in an unreasonable manner. The courts are no exception to this. It is no less improper for the courts to read something to mean anything other than its originators intended than it is for any of us to.




It is true that Heller makes that claim. But the basis of that claim doesn't come from the post-Revolution era, but from before. But as I said, it is the understanding of the founders themselves at the time the 2nd Amendment was adopted that controls here, and the very fact that they fought a revolution against the very entity that Heller basis its conclusions on, using privately-owned weapons that were not "commonly used", should make it obvious that there is at least some conflict between pre-Revolution understanding and post-Revolution understanding, and it is the latter, and not the former, which controls.




But that conflicts with the stated purpose of the 2nd Amendment. Modern developments cannot be used to override an explicitly stated purpose in the Constitution unless the principles behind that stated purpose are no longer applicable. But here, they are just as applicable now as they ever have been, because only a properly armed citizenry can ensure that the government cannot become tyrannical.

This all comes down to whether or not the citizenry has the right to liberty. If it doesn't, then we're pretty much done. If it does, then it has the right to the means necessary to assert that right. This is so because a right is meaningless if it cannot successfully be asserted. The right to arms flows in part from the right of the citizenry to prevail against a tyrannical government, and that right is meaningless if the citizenry is denied the means to prevail. And the right of the citizenry to prevail against a tyrannical government flows directly from the right to liberty.

This is no different from self-defense. The right to self-defense is derived from the right to life. This is so because your right to life is meaningless if you haven't the right to defend it. And your right to self-defense is meaningless if you haven't the right to prevail in a self-defense encounter. And your right to prevail is meaningless without the right to the means to prevail.


Hence, the right to arms flows from two separate rights: the right to liberty and the right to life.




Hmm...a bit excessive, but interesting point. A case challenging that as being excessive for the same reason that such an imposition on ammunition in general would be excessive might be warranted at some point. But I think we've got a long way to go before we get there.

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The police power is what is being exercised, but police power alone is not sufficient justification for overcoming a right. There needs to be sufficient justification of the power in order to overcome the right. Public safety is the shorthand way of combining police power with the justification.

You talk about plain meaning, but plain meaning is not really originalism. It is textualism. Originalism is about original understanding, not about plain meaning. There are other modes of constitutional interpretation https://www.everycrsreport.com/reports/R45129.html

The Constitution is written in general terms and is not designed to address all possible issues. We also cannot clarify with anyone what it means. The courts need to resolve cases and the Constitution grants the courts judicial power. Additionally the issues facing us today are not the same as what the founders faced.

For example the 2A states that the right shall not be infringed, but it does not define what that right is. Plain meaning would need to address the prefatory clause about the militia. The militia today is very different from what was envisioned. The militia has police functions that are now separate from the military. There was a historical prohibition on concealed carry, but concealed carry seems to be the preferred method of carry today. You seem to focus on one particular aspect that does not appear to be very relevant in todays society. How do you assign an original public meaning to something that is very different today?

One of the things that scrutiny does is help extrapolate the general principles of the Constitution to specific examples.

OneGunTex said:

Thisss eneving I deciiiedd to cacth upon tihs thrred and take a shot evvry tmie Continilli, Esqiure said "historicall prohibbitionb*
Hehe havn a goood tmie ovr heaerr hehe

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camo556 said:

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rbird7282 said:

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Historical prohibitions are important to this case given the question that is presented. Heller talked about historical prohibitions. The state did mention the historical prohibitions. The plaintiffs did not directly address historical prohibitions though. One has to question how the court might address these historical prohibitions given the historical prohibitions in Heller, the fact that the state mentioned these historical prohibitions, but the plaintiffs did not directly address these historical prohibitions. I am curious about what others think about these historical prohibitions. Are historical prohibition really that important to this case given that Heller specifically mentions historical prohibitions. Do other people think that the state addressed historical prohibitions in line with the historical prohibition mentioned in Heller. Do think the way the plaintiffs addressed historical prohibitions is adequate given the states mentioning of historical prohibitions and the language in Heller that talks about historical prohibitions?

Do you know what is not funny? The fact that SCOTUS has denied to rule on the merits any 2A case since McDonald incorporated the 2A to the states via the 14A. They have passed on a significant number of cases.