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Does the Supreme Court's Decision Give Us the Right to Bear Nukes?
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." -The Second Amendment to the Constitution.
Now we finally know what this Amendment means. The Supreme Court's five conservative justices have just ruled that we all have a constitutional right to own a gun.
So there it is, all of the NRA's dreams come true in one mighty legal swoop. I can just imagine Charlton Heston's cold, dead hands raised in elated celebration.
And to make it even sweeter, the majority opinion was written by Justice Antonin Scalia, the very justice who offers himself up as a strict constructionist. His ruling would undoubtedly be grounded in originalism and of such logical purity that no one could suggest that it had sprung from a personal ideological or political bent.
Funny, though, how the court's four liberal justices vigorously dissented, reading history and precedent quite differently and finding that the Second Amendment proclaimed a collective right protecting state militias.
Of course, they lost and Scalia's opinion is now law. So it's worth a walk through Scalia's logic constraining federal gun-control efforts, to see if it holds.
In District of Columbia vs. Heller, the court reviewed a district law barring the possession of handguns, even in one's home, and directing that rifles be dismantled or sport trigger locks. The court struck this down as unconstitutional.
In his analysis, Scalia spent a great deal of time laying out the historical underpinnings of the Second Amendment. Beyond the right of self-defense, Scalia declared that the framers viewed the right to bear arms as a check against an overbearing federal authority. Having just come through their own need to toss off the oppressive government of King George III, the framers thought it essential to empower a citizens' militia. "(W)hen the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny," Scalia explained.
But if that's true, and the Second Amendment grants citizens the capacity to revolt against usurpations by government, then doesn't it follow that they have the right to the weapons needed to do so? Doesn't this logic lead us to an individual right to a nuclear device? How else to challenge an American government run amok? Or, if not so great a weapon of mass destruction then at least an assault rifle, the very basic outfit of any revolution.
No dice, Scalia says, in full punt mode. Scalia claims that the individual right to bear arms does not include "M-16 rifles and the like" because it covers only those weapons "in common use at the time" of the amendment's adoption in the 18th century and not "dangerous and unusual weapons."
First, all weapons are dangerous -- it's sort of the point. Second, if citizens in a militia - or a person protecting his home from a robber -- is to have any chance today they must be armed with something better than a flintlock musket.
Not to worry, says Scalia, because the Second Amendment includes all modern advances of "bearable arms" even if they "were not in existence at the time of the founding." But not military-type arms.
There is no cohesive logic here. The Second Amendment's prefatory clause must mean something, at least granting individuals the right to weapons that a modern militia would carry. Scalia accepts an updating of the Constitution relative to weapons needed for defending oneself against a home invasion but not against government tyranny. That's pretty result-oriented judging and not terribly strict to any original construction.
The Second Amendment has always put me in a quandary since the framers' purposes for it inevitably leads to an open floodgate of weapons ownership. But Scalia's opinion was not an honest attempt at sorting this out. It was a sophistical, political decision of just the type that he rails against.
Why am I not surprised?
--Robyn Blumner
© 2008 St. Petersburg Times
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22 Comments so far
Show AllThe whole thing is a joke. The decision resolves nothing. Over two hundred years of judicial rulings, including over 200 lower court and 5 separate Supreme Court rulings, have stated that the amendment creates a "militia" or "collective" right to keep and bear arms. From that comes police power or the creation of militias such as the National Guard. The NRA and its' toadies in Congress and the media insist the definition of a militia is a wide berth but that's completely ridiculous. Court rulings have stated that a member of the militia a.) is identifiable from a uniform b.) carries firearms openly c.) has firearms funded and supported by general taxation dollars and not privately owned. In the decision US vs. Cruickshank in 1886 the Supreme Court ruled, "...the bearing of firearms for a lawful purpose is not a right granted by the US Constitution." In Miller vs. Texas from 1939 ( a decision which causes the gun nuts as much heartburn as Roe v Wade causes the anti-abortion gang) the Supreme Court rules that Miller's possession of a sawed off shotgun "...does not contribute the efficency and operation of a well regulated militia." This decision will further muddy the waters of true crime control in this country BUT it will do wonders for Charter Arms and Remington.
The nuke example is a little extreme, but how about owning RPGs? TOWs? SAMs?
The slippery slope has been crossed, and there are nothing but craggy rocks at the bottom of the ravine.
-"(W)hen the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny," Scalia explained.
-But if that's true, and the Second Amendment grants citizens the capacity to revolt against usurpations by government, then doesn't it follow that they have the right to the weapons needed to do so? Doesn't this logic lead us to an individual right to a nuclear device?
This is a point I've several times tried to get a reply to, from the nra types in America. As Robyn Blumner says, it makes no sense that the US constitution would give one the right to weapons to resist tyranny, but only centuries old weapons. If this interpretation was in force in the time of the constitution's writing, people would have the right to carry what, 12th century arms?
If on the other Americans have the right to modern, but only small arms, how are "Saturday night specials" supposed to help "resist tyranny"? Americans are one of the most well armed countries in the world and I don't see much proclivity to resist. If Americans did resist, wouldn't that make them, by their own wacky definition, out of uniform "illegal combatants"? So, if bearing arms is a "right", where in the old document does it say that nuclear weapons are excluded? It's a very good point. I'd love to read a good answer to this.
Guess I can still use that cannon mounted in the back of my pickup since it was in common use at the time of the framing. But it sounds like I will have to remove my Gatling gun, however.
Here, let's solve the problem the easy way already: all Governors should create a State Militia and then proclaim that, by residing in said state, one is automatically a member of the State Militia who may be called upon to fight against Federal tyranny if necessary.
Then each State can create a list of weapons citizens may own, based on what may be necessary to defeat Federal tyranny.
Naturally, those who prefer not to be a member of the State Militia can apply for a waiver, but will not be guaranteed protection in the case of an invasion by Federal forces.
Moving on...
Scalia, in all his brilliant sophistry, clearly has no problem letting ordinary citizens have enough firepower to kill each other wantonly, but is cunning enough to weave prohibitions against owning weapons that could actually be used to overthrow the government.
"(W)hen the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny," Scalia explained.
_________________________________
If that were true, Scalia and his co-conspirators would've been reduced to bloody Swiss cheese by a well-regulated militia the day they hijacked the 2000 election and installed King George on his throne.
Huh?! Am I alone in detecting a fatal logic implosion here?
It would seem impossibly self-contradictory to suggest that the ruling applies to only those weapons "in common use at the time" while also suggesting that it applies to all modern advances of "bearable arms".
What currently available weapon is NOT a modern advance upon those that were available from the time when man first picked up a stick or threw a rock? How great or small is the scientific leap from past to present permitted to be? As for their being "bearable", does the shift from live to mechanized lifting and carrying power thus become the primary determinant in civilian versus governmental killing power? If so, as the author asks, how does that comport with the original intent of allowing citizens to resist governmental tyranny?
Can someone help me out, please? It's all very perplexing to us non-USans.
Clarence and Nino are really good guys. So let's give them their way. I should like to institute a program to distribute 100 hand guns to every American. We'll want a nice array of types and brands, with a special bonus offered to a person for their first three gratuitous killings-- a grenade launcher. Canceling the Iraq occupation can provide the financing for these extra weapons, which because of their profusion will soon bore their owners and achieve a lasting peace.
bottle-- Throw in a speed-cocker and you've got a deal!
americans live in a dream world, as they so desire, run by assholes whose only real "rule of [their] law" being their totality over everyfuckingthing that has molecules.
The stupidity, the absolute and obscene stupidity, of america knows no bounds and now streches forever emotionally, mentally and physically.
All the world is a stage and we but merely players upon said stage once wrote a very wise man. He wrote of many things including the stupidity of humans but even he never foretold of its extent.
Had he, he would have been wrong.
One can only "bear" what one can carry.
PLEASE - someone answer me this.
The second amendment does not stipulate a firearm. But let me take this in the opposite direction from above.
Why, then, is a law limiting me to a 4" knife blade not unconstitutional? Not that I want to walk around with a sword, but I should be able to - right?
Serious, if anyone has an answer I'd appreciate it.
The US rules Iraq, so Iraq is part of the US, therefore the right of the people of Iraq to bear arms and secure their freedom shall not be infringed.
This issue is settled.
poopdeck July 7th, 2008 3:33 pm -- 'One can only "bear" what one can carry.'
Unfortunately, poopdeck, that response ignores the central issue raised by the main item -- i.e., current-day relevance of the constitutional article's original intent of power relationships between governmental tyranny and the citizenry.
In that context, the court's rationale makes no sense whatever. What does load-bearing ability have to do with that essential issue. Does it pertain only to fully assembled arms? Can the citizen militia distribute the load of a single weapon amongst several members? How many?
If considered logically in the light of the founders' true intent, the legalistic rationale is patently absurd almost to the point of farce.
This is almost identical to the First Amendment argument, if you replace "Arms" with "sentences". All it means is that language in general is so vague that anyone in power can take any set of laws, no matter how specific, and twist them to mean, "We can do whatever we want and punish you for anything at all."
The broad implication is that all government is tyrannical as long as it is founded on words.
In fact, one could argue that the existence of money is unconstitutional because the government cannot avoid creating laws that require us to worship it.
The "right" to bear arms does not make it right to bear arms.
Its always right to bear arms if you want to. It is also your right.
This issue is settled once and for all. The only thing left is what you may have....no noukes now.
Nuclear weapons don't kill people.
People kill people.
Personally I wish it made RPGs and fully automatic weapons legal. I'd stockpile them because the feds are working right now to dismantle our rights. These court ruling about gitmo are important because they are setting scary legal precidents that might be used against us, the citizens.
One day we will wake up and the dollar will be worth more as wallpaper than as currency. The feds will declare a state of emergency and start coming after us. After all the "dissidents" are gone, the sheep will accept their new currency, the amero, will less property and rights. I'd rather go down firing than live in that world.
By the way, I'm certainly not going to take my guns to the streets and rob people.
-"(W)hen the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny," Scalia explained
So stupid. Today's "arms" are finance, information control and heavy weapons. And what's this about able-bodied men? Women exist and count nowadays, remember? You backwards brute, Scalia.