We were hopeful that when the Bruen opinion came out that it would be inline with what the Constitution actually said. What Thomas did was so much better than what I was hoping for.
It is important to understand how they attack the second amendment. The words are clear and easy to understand. Yet somehow they have been able to twist it to mean what they want it to mean.
“A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
I’m sure I didn’t get the capitalization correct, but I did it from memory, just as you should be able to.
For the first hundred plus years everybody knew what it meant and it wasn’t important. It wasn’t important because nobody was really passing any real infringements. The first infringements showed up in the “black code” or “jim crow” laws after the civil war. It was clear that the goal of those laws was to disarm the newly freed blacks.
Nobody that was not black was concerned because they knew those laws did not apply to them.
The first federal infringements happened in 1934. Congress evaluated the Constitution and decided that the second amendment meant what it said. Yet congress wanted to stop a certain class of people from getting firearms. Since they couldn’t ban firearms of any sort they decided to make it to expensive.
Today you can buy a suppressor for $900+ and a $200 tax stamp. I.e. a 20% tax. In 1934 you could buy a suppressor for $5-$10. That makes it a 2000% tax. It was “only” a 150% tax on a Thompson but these were the sorts of prices that took it out of the reach of normal people.
For perspective, the median home value in 1934 was $4971. Disposable income per capita was $5,579. That would mean that the tax stamp would be about 3.6% of yearly disposable income. The equivalent would be around $3500 today.
What happened after that was two fold “no right is unlimited, you can’t yell fire in a crowded theater” and “It is all about the militia.”
The “all about the militia” came because of a statement in the Miller decision. “…has some reasonable relationship to the preservation or efficiency of a well regulated militia…” The justices were talking about a particular weapon, a shotgun having a barrel of less than eighteen inches in length. NOT about who was guaranteed the right to keep and bear arms, just that this weapon was of military use.
It is also important to note this phrase in the decision “not within judicial notice”. This phrase means that the justices know more than what was presented to them but because it was not presented they are not allowed to notice it. This is why arguing before the Supreme Court is so different than any other type of courtroom interaction. The justices are intent on getting evidence on the record. As soon as that evidence is presented the justices can examine more.
This is a positive change in how the court works.
The “there is no unlimited rights” is both true and false. I am a free speech absolutist. If you want to swear and cuss in your blog go for it. I do not care. If you want to say moronic things. Enjoy your mental masterbation.If you want to spew hate from your soapbox, so be it.
But I do have my limit. Child pornogrophy. You can be sick and read and write that sick stuff, I don’t care. But as soon as you point a camera at a child it is too much. At that point I want J.Kb. to have a week of uninterrupted time with you to do what he wants to you.
The “You can’t yell fire in a crowded theater” was not a part of any supreme court opinion. It was written as an aside. The entire case was overturned and is dead as precedence. It was a horrible case where the justices ruled that it was constitutional for the government to limit the handing out of political pamphlets.
So it is these exclamation words and phrases that are used to “justify” infringements. The court never said that the second amendment was a collective right. Until the infringers wanted to infringe everybody knew it was an individual right. But because of that phrase the lower courts latched on to the 2nd was a collective right and thus no individual had the right to keep and bear arms. The fact that you got to own any guns was just the government being beneficent.
We saw the same thing happen in 2008. The court opinion says “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”. This makes it absolutely clear that the right is an individual right and that you can use that arm for any lawful purpose. Pretty darn clear.
The justices went so far as to give an example of a lawful purpose: “such as self-defense within the home.”
The lower courts, instead of accepting “for traditional lawful purposes” instead latched on to the example “self-defense within the home.”
In the Bruen decision the same sort of thing is happening. First the infringers have latched onto “some infringements are allowed” and “there are some places which can be designated gun free zones(sensitive places)”
And this is what they are doing. They are doing their best to create so many sensitive places that it isn’t possible to carry without running afoul of a sensitive place with all that entails.
The example I use is the post office. Currently the post office is considered a gun free zone. It hasn’t been explicitly declared a sensitive location but I’m sure they will. Not only did the government declare that the post office is a gun free zone, but so is the parking lot and all post office property.
This means that if I pull through their parking lot to drop a letter into the mailbox without disarming I’m in violation of a federal infringement.
Ignoring the slow walk of cases that are going on, we are starting to see how this is playing out.
A federal district court judge in Alabama has stated that researching the intent of the 2nd amendment in 1791 isn’t possible because so many historians have differing opinions. He shouldn’t be doing history. The Supreme court got it wrong because they didn’t take into account that the founding fathers were all white racists.
If the courts are able to bring historians into the court to make the decisions on what is and is not what was going on in 1791 what will happen is that the infringers will have their list of go to “historians” funded by Bloomberg to say that every infringement has a history and tradition at the right time in history.
And the courts will then be back to judging which group is right and we know how that goes. They won’t be doing their job.
We are also seeing judges attempting to limit what is covered by the 2nd amendment. To paraphrase one judge in California “The clear reading of the second amendment makes no mention of manufacturing firearms so bans on home manufactured firearms and precursors is constitutional.”
This would allow them to drive firearm manufacturers out of business and ban you from making your own. We’ve already seen how the government has passed laws limiting what firearms can be imported into the US.
We are seeing some wins but in limited scope. Whereas when a leftist gets a judge to issue an injection it is for the broadest swarf possible. Under Trump some two bit federal district court in granola land hears a case and issues an injection stopping a presidential executive order, nationwide. When a judge finds for a conservative we end up with a “hold for the state to appeal” and “only affects the people in the case.”
This is what we are seeing in a case in NY(?) The judge has stated that the ATFs redefinition of frames and receivers is unconstitutional and issued an injunction but that injunction only allows the plaintiffs and their customers to continue to buy unserialized 80%s. All other sellers of 80% lowers and frames are still restricted from doing so.
It is currently so bad that all the resellers of 80% had to remove instructions from their sites. Having instructions meant that the ATF declared the 80% hunk-o-aluminum or plastic to be a firearm.
While the limit on the injunction isn’t good, the Judge did tell the state to go pound sand when they asked for a hold while the case was litigated. The judge said that it was obviously unconstitutional and any right delayed is a right denied.
Comments
4 responses to “It is Bruening out there”
Until we get non political judges sitting in courts we will always have to deal with this. Liberals have managed to inject politics into everything. Many of our “laws” were written very simple. The “interpretation “ depending on the political lean of those interpretations is the problem. We all know gubmint making an area “sensitive “ only affects We the People… it’s obviously why “mass shooters “ choose those places to go to. Its where “go postal” came from. But po incidents weren’t spectacular enough…. No one cared. So the place was changed( don tinfoil hats here). And typically liberals want to ban tools instead of prosecuting criminals… round and round it goes. The Bruen ruling is a great example- liberals didnt like it so “lets find ways to infringe on it”..
“The “there is no unlimited rights” is both true and false.”
Correct.
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You have a fundamental human right to say whatever you want to say whenever you want to say it.
You do not have the right to knowingly say something that will cause measurable harm to another person without the expectation of repercussions. If you want “yell FIRE!…” there is absolutely nothing stopping you from doing so. You can do that. But, you should have no expectation of protection for free speech under the 1st Amendment. Why? Because you know, or had a reasonable expectation to know, that you action would result in panic, and harm to others.
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Your right to self defense is unlimited.
The protection you receive under the 2nd Amendment is limited. It is unreasonable to set up a 2,000 yard perimeter around your property and shoot anyone who enters. Especially if you live in an apartment building. You can certainly shoot a politician that votes against your interests, but you cannot claim the 2nd gives you unlimited authority to do so.
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Finally, I am an absolutist when it comes to arms. Arguing to the absurd, I do not see any reason why people cannot own nuclear bombs, under the condition they use them in a law abiding and responsible manner. (Yes, there are likely no uses an individual will have for a nuclear bomb that fall under law abiding and responsible.) But, the test applies across the board for anything that is considered arms. Grenade launchers? Sure, why not. SBRs, suppressors, cannons, mortars, etc… etc… If you can own them and use them responsibly, who are you harming?
“It is unreasonable to set up a 2,000 yard perimeter around your property and shoot anyone who enters.”
It is perfectly reasonable if I own the property within 2,000 yards and put up signs proclaiming my intentions. ;-))
“The “You can’t yell fire in a crowded theater” was not a part of any supreme court opinion.”
Actually, you can yell “fire”.
If there _is_ a fire, good job.
If there isn’t, you will have to deal with the consequences.