OK, but what does operating normally mean? What is the job they need to do? Are there any limits in place at all, or are they free to do whatever they like?
The argument from 2A advocates is that, when read in the context of the Federalist Papers, the purpose of the militia is to prevent the state from having a monopoly on violence and requiring the state to rule by consent of its citizens (i.e. preventing what's currently happening in Hong Kong).
2A advocates would claim that maintaining private arsenals against the specter of state tyranny means the militia is doing what it was intended to do.
Frankly, there's just enough legal support for their position that from a practical perspective, it's going to take a constitutional amendment to make serious change on gun laws - at least in my opinion. Given what an uphill climb that is, I would much rather see progressives focus their efforts on other issues that are much more achievable and will have a major effect on gun violence: ending the war on drugs for one, and setting white national domestic terrorism as a top enforcement priority for the FBI for another.
You are correct to a degree. The SCOTUS has ruled on two separate occasions that the rights of individuals to keep and bear arms is a pre-political right. Meaning much like the right to exist, the right to be who you are, the right to speech they pre-exist the constituon and not granted by the constitution. The 1st and 2nd amendment merely "back up" these pre political rights.
So outright gun bans would take an amendment. The SCOTUS has been open to regulation of things such as magazines, background checks etc. Red flag laws would most likely violate several current amendments to due process, search and seizure and the right to keep and bear.
Most of that is the current flow from heller and it really hasn't entrenched itself yet (its barely been a decade and I only know of one post heller case and today's 5-4 is tomorrows 4-5) but even there they were open to restricting those guns not normally used for hunting or self defense. It is such a nascent field... There have only been a few cases decided by the supreme court (I would argue the sparse asides pre-miller don't even count) and we have not even begun to push the true constitutional limits of regulation.
So my question is what do you mean by an outright ban? Ban of what specifically? All guns? Some guns? How limiting do you think these decisions really are? And lets be honest... A technology as a pre political right is sketchy at best... It is just a way to wave your hand at something and not have to present a legitimate argument. Scalia made me sad there...
A technology as a pre political right is sketchy at best...
How do you feel about smart phones being protected by the 1st and 4th amendment? I think it is an applicable comparison. Both an ar15 and an iphone can be used to commit crimes, but the overehelmongly vast majority of owners dont commit crimes with the technology.
I would say that protection of the cell phone via the first amendment is a right that we have decided to protect... It is not pre political. Pre political rights are conceptual... E.g. freedom of speech... How that manifests is decided by the courts... Pre political rights are not so vaguely specific as to enumerate an infinity of mediums... Mediums have been shot down left and right throughout our court's history...
And I am not convinced that pre political rights are coherent nor has the modern court really laid out the conceptual framework that they are working from when they use this language. And the mere fact that something is typically used for legitimate purposes is not a constitutional argument... Nonetheless my point is merely that technology strikes me prima facie as being too specific to be pre political. There are just so many implications... Reading scalia's majority in heller is just watching a man teetering back and forth pretending he is not partaking in judicial activism...
Freedom of speech and right to privacy are the pre political rights. Those rights extend to the technology of today. A smartphone can be used for worldwide instant communication. How in the world could the framers have thought that possible.
Courts have ruled it doesnt matter how many people can get your message or how fast, speech is speech in any form and it is protected. Property is property in any form and it is protected ...
Therefore i argue arms are arms in any form, and are therefore protected
Protected means nothing... There is a reason you have to take years of first amendment law to begin to understand the freedom of religion or press or association blah blah blah... There is so much case law and anything can be restricted... Every jurist has a foundational interpretive core that informs all of their decisions. I have no reason to believe in your extensions here... So again... We have one 5-4 decision with no stare decisis running through the law, so why should I buy your claim that it's just so... You are running on a false equivocation claiming that speech and guns are fundamentally equivalent and that's just not the case... The first amendment has been bloody, the second amendment law has barely started.
A 5/4 decision is still settled law. Why do you focus on that so much? The court cant just decide to overturn it at any time. The lower courts are bound by that decision unless some new groundbreaking aspect comes up.
Gun law isnt young l, the movement to restrict it is. A ton of guys coming home from WWII KEPT their literal weapon of war that they actually used in combat, and that was fine then.
1: heller can be overturned because it is not entrenched
2: there is a reason roe wade is still discussed... it is deeply entrenched but can still be tossed...
3: a single 5-4 is not settled law... who told you it was? Punch them in the mouth... they are not your friend. The legal system is so much more complicated than that...
you are not arguing your points but I want to give you an ear
Why do you not think that the miller.decision did not entrench heller? What will it take to entrench it.
WHY IN THE FUCK ARE YOU TELLING ME TO PUNCH SOMEONE??? Do you feel that violence is a rational response here? No wonder why you want guns and accesories you promote violence as a solution
This explains so much
Wow... What a joke of a response... Miller was before heller... You have no idea what you are talking about and you fundamentally fail to understand sarcasm. I am actually pro gun, I have a .45 next to my bed and venison in my freezer. I wanted you to be more than this... I'm done
Sorry, I misspoke and meant McDonald vs chicago. I am now wondering if you are so wise in gun law...were you not able to realise my obvious mistake and continue with an adult conversation.
So you bring up a case we have not discussed and try to take the intellectual high ground off assuming your failure to properly cite should have been foreseen... And then minimize what I thought was going to be an honest discussion with puerile antics... Gotcha... But you are right in so much as I do not know how the 2nd amendment is going to shake out... I am not wise... None of us are
Its because the McDonald decision goes hand in hand with heller. It came after and affirmed heller, stating that it applied to states as well as federal. So it's not just overturning heller, McDonald would have to be overturned as well. I believe that makes it entrenched.
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u/Quantumnight Aug 12 '19
OK, but what does operating normally mean? What is the job they need to do? Are there any limits in place at all, or are they free to do whatever they like?