Category Archives: Second Amendment

In a racist ruling that primarily functioned as a way to disarm black residents while protecting white Southern paramilitary groups, the Supreme Court held that the Second Amendment applied only to the federal government. Chief Justice Morrison Waite wrote for the majority:

The most frequently-cited Second Amendment ruling in U.S. history has been United States v. Miller, a serious but challenging attempt to define the Second Amendment's right to bear arms on the basis of how well it serves the Second Amendment's well-regulated-militia rationale. As Justice James Clark McReynolds wrote for the majority:

In a 5-4 ruling, the U.S. Supreme Court decidedfor the first time in U.S. historyto strike down a law on Second Amendment grounds. Justice Scalia wrote for the narrow majority:

The first salient feature of the operative clause is that it codifies a 'right of the people.' The unamended Constitution and the Bill of Rights use the phrase 'right of the people' two other times, in the First Amendments Assembly-and-Petition Clause and in the Fourth Amendments Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology ('The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people'). All three of these instances unambiguously refer to individual rights, not 'collective' rights, or rights that may be exercised only through participation in some corporate body ...

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendments text; significantly different provisions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions; postenactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Courts decisional process than on the reasoning in the opinion itself ...

Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Courts announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations ...

The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choicethe choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Courts opinion, I could not possibly conclude that the Framers made such a choice.

View post:
Second Amendment and Gun Control Supreme Court Cases

President-elect Donald Trump is expected to push to relax gun laws when he takes office, but significant changes in the firearms industry began as soon as he was elected and some put the law of unintended consequences squarely in the cross hairs.

For instance, while Trumps unapologetic pro-Second Amendment stance may be good for gun owners, it has already dealt a blow to manufacturers, who enjoyed record sales throughout President Obamas eight years in office. Stocks in companies like Smith & Wesson and Sturm, Ruger & Co. plunged on Nov. 9, and experts say it is because Trumps election erased fears that guns would become harder to get.

A lot of people were buying guns simply because they were worried Hillary Clintons regulations would make it more costly and more difficult to buy guns, and people are not going to feel quite the need to go out and buy guns now, Crime Prevention Research Center President John Lott told FoxNews.com. I think the stock market is a pretty good predictor of whats going to happen, and the fact that you see drops in stock prices by almost 20 percentage points I think thats pretty significant.

While the government does not publish an official number of gun sales, background checks, a gauge of how many people try to buy guns, skyrocketed under President Obama. In 2008, 12.71 million background checks were conducted, a number on pace to double this year, to set an all-time record.

The prospect of a pro-gun control administration of Hillary Clinton following Obama, together with a campaign that put gun rights in the spotlight, was the likely driver of the firearms boom, acknowledged Joshua Horwitz, executive director of the Coalition to Stop Gun Violence. But he was skeptical that a rise in 2016 gun sales or an anticipated dip in the coming year will have a major effect on crime.

Gun violence is obviously a complicated issue and doesnt just turn around because of a month or two of different sales, Horwitz said. There are so many guns in America that a blip in the sales rate is not going to change the death and injury rate in any meaningful fashion, and its just too early to tell.

The weekend following Trumps election, arms vendors from all over the country set up their exhibits in Oklahoma for the semi-annual Wanenmachers Tulsa Arms Show, the largest gun and knife show in the world. Show founder Joe Wanenmacher told FoxNews.com sales were steady, but wouldve been through the roof if Clinton had won.

Had Secretary Clinton been elected, it would have been panic sales, because gun shows were in her sights to either be eliminated, or make it so difficult to sell that they wouldnt be effective, Wanenmacher said. When there is complacency, there isnt the motive to buy guns in anticipation of something bad happening.

One attendee agreed.

I think if Trump hadnt won, it would have been chaos, she said. It was a relaxed atmosphere and everyone was upbeat.

Fear of new gun control laws was not the only sales driver in recent years, said National Shooting Sports Foundation spokesman Mike Bazinet. He said local crime also spurred people to buy guns, and does not expect that factor to diminish in the near future.

There is no question that the concern over political situations over the past several years, where people may have feared additional restrictions of access to firearms was a motivator, but it wasnt the only one, Bazinet said. Our retailers tell us that a more important factor is local crime.

Trump has said he intends to work with state and local governments to repeal gun-free zones, do away with the special tax on silencers, encourage expansion of conceal carry laws and carry out a host of other pro-gun industry initiatives. Advocates of gun control say such measures will put more people at risk of becoming victims of gun violence, but Trump and other Second Amendment stalwarts disagree.

If you get rid of gun-free zones and make it easier for people to carry, you will deter criminals, Lott told Fox News. You will be able to reduce crime.

The irony is that an administration more sympathetic to the gun industry could hurt its bottom line.

There is no doubt that the firearms industry will not be treated as a social disease by the Trump Administration, Alan Gottlieb, founder of the Second Amendment Foundation, told Fox News. The president-elect will make the Second Amendment great again.

See more here:
Trump's pro-Second Amendment platform could end gun sales ...

Donald Trump would not commit Wednesday night to accepting the results of the presidential election if he loses on Nov. 8, in a striking moment during his final debate with Hillary Clinton that underscored the deepening tensions in the race as the bitter rivals defined the choice for voters on an array of issues not three weeks from Election Day.

The debate in Las Vegas, moderated by Fox News Chris Wallace, started with a measured discussion on policy disputes ranging from gun rights to abortion to immigration. But it ended with the candidates hurling a grab-bag of accusations and insults at each other.

Trump called Clinton a nasty woman. Clinton called Trump the most dangerous person to run for president in modern history.

The most pointed moment came when Trump who for weeks has warned of a rigged election was asked whether he will commit to accept the results of the election.

I will look at it at the time, Trump said, citing his concerns about voter registration fraud, a corrupt media and an opponent he claimed shouldnt be allowed to run because she committed a very serious crime with her emails.

Pressed again whether hes prepared to concede if he loses, Trump again said: I will tell you at the time. Ill keep you in suspense.

Clinton delivered a sharp rejoinder: Thats horrifying.

That is not the way our democracy works, she said. He is denigrating, hes talking down our democracy and I for one am appalled.

Trump responded by calling the Justice Departments handling of her email probe disgraceful.

The exchange was among many contentious moments at Wednesdays debate, which covered several issues including the national debt that have gotten little attention in the race so far but flared with arguments between the candidates over WikiLeaks, over Russia, over the Clinton Foundation and over womens allegations of groping against Trump.

Through the thicket of accusations and personal animus they never shook hands on stage the candidates tried generally to mount a closing debate-stage argument about experience.

For 30 years, youve been in a position to help. The problem is you talk, but you dont get anything done, Hillary, Trump said. If you become president, this country is going to be in some mess, believe me.

Clinton countered by contrasting some of her experiences against Trumps. She said when she was monitoring the Usama bin Laden raid in the Situation Room, He was hosting The Celebrity Apprentice.

Im happy to compare my 30 years of experience with your 30 years, and I will let the American people make that decision, Clinton said.

Trump, meanwhile, again disputed the multiple allegations of groping that women have leveled against him since the candidates last encounter. He also said he thinks the Clinton campaign is behind the claims, charging, They either want fame or her campaign did it.

Clinton said, Donald thinks belittling women makes him bigger. Trump repeated that nobody has more respect for women than him.

Trump then shifted to blast the Clinton Foundation as a criminal enterprise. He pointed to donations from countries like Saudi Arabia to question Clintons commitment to womens rights. He asked her if she would return money from countries that treat certain groups of people horribly, which she did not answer directly.

The candidates third and final debate now sets a bitter tone for the homestretch of the 2016 presidential campaign a race that already stands out as arguably the most personal, caustic and unpredictable White House battle in modern politics.

Trump, slipping in the polls amid various campaign controversies, said at the last debate that Clinton should be in jail. Clinton has blasted Trump all along as temperamentally unfit for office.

Since the second debate, numerous women have come forward to accuse Trump of groping them, allegations he denies. WikiLeaks also has embarrassed the Clinton campaign by releasing thousands of hacked emails purportedly from her campaign chairmans account. FBI files alleging a State Department official sought a quid pro quo to alter the classification on a Clinton server email added to the campaigns and Obama administrations woes.

The WikiLeaks controversy came up Wednesday night when Clinton asked if Trump would condemn Russian espionage. He denied knowing Vladimir Putin but said the issue is the Russian president has no respect for her.

Thats because hed rather have a puppet, Clinton shot back.

Trump responded, Nope. youre the puppet.

Trump later said he condemns any interference by Russia in the election.

The candidates also sparred over gun rights, with the Republican nominee charging that the Second Amendment is under absolute siege and would be eroded if his opponent wins.

We will have a Second Amendment which will be a very, very small replica of what we have now if Clinton wins, Trump said.

The Democratic nominee countered, I support the Second Amendment.

In a graphic exchange, Trump said Clintons position on abortion is nearing a point where one could rip the baby out of the womb in the ninth month. Clinton accused him of scare rhetoric.

They also clashed on immigration, with Trump saying they need to deport drug lords and deal with bad hombres in the country. Clinton said violent offenders should be deported but then mocked Trump for not pushing his controversial border wall proposal during his high-profile meeting with the Mexican president. He choked, she said.

Trump said Clinton wanted a wall when she voted for an immigration overhaul a decade ago and now wants open borders, which she denied.

To date, the mounting controversies facing both campaigns have appeared to hurt Trump more than Clinton, who gradually has expanded her lead over the GOP nominee in recent polls.

A Fox News national poll released on the eve of the Las Vegas debate showed Clinton with a 6-point, 45-39 percent lead over Trump in a match-up that includes Libertarian Party nominee Gary Johnson and Green Party candidate Jill Stein.

Trump, in the final three weeks, is thought to be zeroing in on several key battlegrounds including Florida, Ohio and North Carolina but the polls suggest his path to the presidency remains narrow, as even once-reliably red states like Texas are being contested by the Clinton campaign.

Read the original here:
Trump, Clinton Clash Over Second Amendment At Debate

At last nights presidential debate Donald Trump and Hillary Clinton made all kinds of attacks on each other. But on one notable issue, they were in complete agreement: they both think people on the federal governments no fly list should be categorically denied their right to buy guns under the Second Amendment. Both candidates have repeatedly said so for months. Trumps stance on this issue should be deeply troubling to those who care about gun rights and also to people concerned about constitutional rights generally, even if they dont care much about this one.

As both the ACLU and conservative commentators point out, the no fly list is notoriously inaccurate. It is also provides little or no due process protections. The process is secret, people are not told the reasons why they were placed on the list, and they are not given any advance opportunity to challenge the designation. And, once on the list, even a completely innocent person might find it difficult and time-consuming to get off it.

If Trump is committed to the idea that your Second Amendment rights can be stripped on such a flimsy basis, with so little due process, then virtually any other politically feasible limitation on gun rights is also acceptable. The sort of reasoning that would uphold this restriction on gun ownership would permit pretty much any other. That should give pause to people supporting Trump because they think he is going to protect Second Amendment rights. It is also yet another reason to doubt that he would appoint originalist judges committed to protecting important constitutional rights generally. Most such judges are unlikely to uphold these kinds of gun regulations (as well as many other items on his political agenda).

Trumps disdain for Second Amendment rights is not limited to the no fly list. At last nights debate, he also said he wants police to use stop and frisk searches to take away guns from bad people. Its not entirely clear what he means by this remark (it could be interpreted as being limited to people the police believe to be felons or gang members whom he also mentioned in the same part of the debate). But, at the very least, its another example of him advocating gun confiscation without due process. It also indicates a disturbing level of confidence that the government can identify bad people and take away their guns without victimizing the innocent.

Even people who do not care much about gun rights and the Second Amendment have reason to be concerned about Trumps position on this issue. As liberal legal commentator Mark Joseph Stern (who is no fan of gun rights), points out, if this constitutional right can be taken away with so little due process, others can be as well:

If the government can revoke your right to access firearms simply because it has decided to place you on a secret, notoriously inaccurate list, it could presumably restrict your other rights in a similar manner. You could be forbidden from advocating for causes you believe in, or associating with like-minded activists; your right against intrusive, unreasonable searches could be suspended. And you would have no recourse: The government could simply declare that, as a name on a covert list, you are owed no due process at all.

Stern believes that the Second Amendment should not be interpreted as protecting an individual right to bear arms. But so long as the Supreme Court continues to hold otherwise, revoking this right on the basis of a secret list with no due process sets a dangerous precedent for other constitutional rights.

In fairness to Trump, Hillary Clinton is no better than he is on the no fly issue. It is, as already noted, one of the few things they agreed on last night. While I believe that she is, on balance, a lesser evil than Trump, this is not one of the issues that makes her so. On other gun control issues, she almost certainly favors more extensive regulation than he does.

But there is this difference: Hillary Clinton and many other liberals make no bones about the fact that they believe either that the Second Amendment does not protect an individual right to bear arms at all, or that the right in question is an unimportant one that should be relegated to second-class status compared to what they see as more significant parts of the Bill of Rights. I think theyre badly wrong about that. But their reasoning at least creates the possibility that they and the judges they pick could approve the no-fly list gun ban without creating too much of a dangerous precedent for other constitutional rights. Like Stern, I believe that many liberals seriously underrate the risk of dangerous slippery slope effects in this area. But at least they are making some effort to contain them.

By contrast, Trump repeatedly claims that hes a strong supporter of the Second Amendment. If hes nonetheless willing to undermine it so blatantly, that does not bode well for the many constitutional rights for which he has (even) less regard.

UPDATE: Commenters on Twitter point to Trumps seeming support of a GOP bill sponsored by Sen. John Cornyn that would allow the government to ban people on the no fly list from buying guns for only 72 hours, after which they would have to go to court to provide evidence of links to terrorism, in order to extend the ban. Its a fair point, and one I should have addressed in the original post. But I dont think it much changes the bottom line on the dangerous implications of Trumps position on this issue.

While it is entirely possibly that Trump would sign the Cornyn bill if it passes, he has never clearly stated that he supports it. Much more significantly he has never said that he will only support the no fly, no buy policy if it includes a right to a judicial hearing. And, in the debate last night, he suggested the contrary by emphasizing his essential agreement with Hillary Clinton on the issue. He even said he quite strongly agrees with her. This implies he would be just as happy to sign a bill with no such judicial safeguards (which is the approach Clinton advocates). Trump did indicate that there should be a legal way for people to get off the no fly list if they should not be there. But, of course, that is no different from the status quo. People can already entirely legally get off the no fly list by asking the federal government to remove them. It just often takes many months or even years to happen.

The important broader issue here is not whether Trump would sign the Cornyn bill. It is Trumps cavalier approach even towards those constitutional rights, such as the Second Amendment, that he claims to strongly support.

See the original post:
Trump and the Second Amendment - The Washington Post

SIGN UP FOR OUR NEWSLETTER WASHINGTONFor the first time in U.S. history, a federal appeals court on Friday struck down a federal gun-control law for violating the Second Amendment, meaning that next year the Supreme Court will hear a case that includes the opportunity to abolish citizens right to bear arms by overruling the Courts famous Heller precedent.

Clifford Tyler is a law-abiding and peaceful citizen living in Grand Rapids, Michigan. In 1985, his wife of 23 years was having an adulterous affair. She ran off with the other man and took all of Cliffords money with her. His daughters found him so upset and depressed, banging his head on the floor, that they called the authorities, fearing he might harm himself.

Tyler was taken before a Michigan judge, who ruled there was sufficient reason to be concerned about the distraught man to commit him to a facility for psychiatric evaluation. A couple weeks later the doctors released him with a clean bill of health, saying that he was a perfectly normal person who had a really horrible day. Tyler continued to be a good citizen, a good employee, got remarried, has been a good father, and eventually even repaired his relationship with his unfaithful ex-wife.

Hes now age 74, and wanted to buy a handgun to keep at home for self-defense. But the government told him that federal law bars him from ever owning a gun, so he went to court to assert his Second Amendment rights.

In 2008, the Supreme Court inDistrict of Columbia v. Hellerone of the most famous decisions ever written by Justice Antonin Scaliaheld that the Second Amendment is an individual right, and as such does not allow the federal government to bar law-abiding and peaceable American citizens from keeping a handgun in their home. Heller was a 5-4 decision, and left other gun-rights questions for future cases.

Heller specified that it was not weighing in on certain issues, including laws that prohibit certain people from owning guns. Federal law in 18 U.S.C. 922(g)(4) is one of these gun-control laws, providing that no one who has been committed to a mental institution can own firearms.

In 1986 President Ronald Reagan signed an NRA-supported law advancing Second Amendment rights, including 18 U.S.C. 925(c), which empowers the Justice Department to restore gun rights if the attorney general finds a particular person to be safe and sane. But Congress stopped funding that program in 1992, canceling out that Reagan-era protection for Americas 90 million gun owners.

So in 2007 Congress passed a new law empowering states to set up their own review process to restore gun rights. Most states have established such a program, but some statesincluding Michigan, where Tyler liveshave not.

The federal district court in Michigan ruled against Tyler, but a panel of the U.S. Court of Appeals for the Sixth Circuit reversed. The Obama administration petitioned the Sixth Circuit to rehear the case en banc, meaning all the judges on the courtin this case, 16 judgeswould reconsider the case.

The petition was granted, and on Sept. 15, by a 10-6 vote in Tyler v. Hillsdale County Sheriffs Department the full Sixth Circuit struck down 18 U.S.C. 922(g)(4) as a violation of the Second Amendment, and remanded the case back down to the district court for more hearings. The court noted that Heller said laws that kept mentally ill people from getting guns were allowed under the Second Amendment, but held that Section 922(g)(4) went too far by mandating that any person who has ever been involuntarily committed to a mental institutioneven for a single daycan never own a gun for the rest of his or her life.

Writing the lead opinion for six judges of the en banc court (which is less than a majority, but still the controlling opinion in this case), Judge Julia Gibbons explained that similar to several other appeals courts, the Sixth Circuit had recently adopted a two-step process for Second Amendment cases. The first step asks whether the challenged law burdens conduct that falls within the scope of the Second Amendment right, as historically understood, she wrote. If it does, then the government bears the burden of justifying the constitutionality of the law under a heightened form of scrutiny.

Specifically, these judges decided that intermediate scrutinya term invented decades ago by the Supreme Courtshould apply to this type of gun-control law. As Judge Gibbons wrote, intermediate scrutiny requires (1) the governments stated objective to be important and (2) a reasonable fit between the challenged regulation and the asserted objective. This standard is less stringent than strict scrutiny, which is another judge-made test.

The lead opinion noted that the Justice Department in this case failed to cite historical material or other evidence supporting Section 922(g)(4). In the absence of such evidence, it would be odd to rely solely on Heller to rubber stamp the legislatures power to permanently exclude individuals from a fundamental right based solely on a past involuntary commitment.

Judge Gibbons continued, Some sort of showing must be made to support Congresss adoption of prior involuntary commitments as a basis for a categorical, permanent limitation on the Second Amendment right to bear arms.

The judges thought this principle applied with special force in this case. Tylers [lawsuit and evidence] suggest that Tyler is thirty years removed from a brief depressive episode and that he has no intervening mental health or substance abuse problems since that time.

None of the governments evidence squarely answers the key question at the heart of this case: Is it necessary to forever bar all previously institutionalized persons from owning a firearm?, the court reasoned. Then noting Congresss own restoration program in Section925(c) and the 2007 law allowing for state restoration programs, added, But the biggest problem for the government is Congresss most recent answer to this very question: No, it is not.

Thus, the court concluded that since the Obama administration presented no evidence supporting this statute, There is no indication of the continued risk presented by people who were involuntarily committed many years ago and who have no history of intervening mental illness, criminal activity, or substance abuse.

The Sixth Circuit thereby invalidated this federal law, holding, As we see it, the government may justify 922(g)(4) in one of two ways: (1) with additional evidence explaining the necessity of 922(g)(4)s lifetime ban or (2) with evidence showing that 922(g)(4) is constitutional as applied to Tyler because he would be a risk to himself or others were he allowed to possess a firearm.

Judge Jeffrey Sutton wrote a separate opinion, joined by several judges, as to why this federal law must be struck down.

Keep in mind that Tyler is not demanding a gun today, he wrote. He is demanding only what Congress used to permit and what most States still permit: an opportunity to show that he is not a risk to himself or others.

After a lengthy discussion, Judge Sutton continued, If there is one thing clear in American law today, it is that the government may not deny an individual a benefit, least of all a constitutional right, based on a sky-high generalization and a skin-deep assumption stemming from a long-ago diagnosis or a long-ago institutionalization.

Tyler has presented plenty of evidence that he is just fine, Judge Sutton concluded.

Judge Karen Moorea Clinton-appointed liberal who is a perfect example of the sort of judge Hillary Clinton would be expected to nominate to the Supreme Courtwrote an energetic dissent, joined by several other liberal judges. In it, she argued that Tyler should never be allowed to own a gun, and that Congress has all the power it needs to ban gun ownership by many other types of Americans as well.

Judge Moore also argued for the dissenting judges that Heller should be interpreted as saying that the Second Amendment does nothing to block federal gun-control power here, a reading that is utterly incompatible with what Justice Scalia actually wrote.

Although the Cincinnati-based appeals court reached the right result, it did not do so for the right reasons.

In fact, the only judge who followed Justice Scalias famous originalist approach in Hellerthe method of interpreting the Constitution and all laws according to the original meaning of their words, a method always followed by Justice Clarence Thomas, and often followed by Justice Samuel Alito as wellwas Judge Alice Batchelder.

Judge Batchelder faulted both the lead opinion and the dissenting opinion for failing to give adequate attention to the Second Amendments original public meaning in defining the contours of the mental health exception. And it is that meaning, informed as it is by the history and tradition surrounding the right, that counts.

She continued that the other opinions debate over strict and intermediate scrutiny gives little more than a nod to the originalist inquiry. This shortchanging of the Supreme Courts approach in Heller (and many other cases) thereby radically marginalizes the role played by the text, history, and tradition of the Second Amendment, and it replaces them with a thoroughly modern (and judge empowering) regime of heightened-scrutiny review.

The appeals courts taking such a course here is a forbidden peregrination from the actual meaning of the Constitution into the realm of judicial policymaking. Instead of fixating on strict or intermediate scrutiny with only a glance at history, the Supreme Court in Heller and McDonald put the historical inquiry at the center of the analysis, not at the margin.

Judge Batchelder then explored sources from the time of the Constitutions writing, examining what they said about mental illness, including the relevant factor here of when a person is unable to distinguish good from evil, and could be deprived by the law of certain rights.

She then noted that such deprivations were not once-for-all, and cited numerous sources from the time the Second Amendment was adopted to show that if a person regained their reason and sense of morality, they were no longer regarded as mentally ill.

Judge Batchelder then concluded:

As has been mentioned many times today, the dangers presented by guns are real, frightening, and obvious. Those realities will continue to factor heavily in the scrutiny analysis. Less obvious to the contemporary judicial mind are the Founding-era fears of tyranny and defenselessness that provided the impetus behind the Second Amendment. Whether the Founding generation struck a wise balance in ratifying that amendment is perhaps debatable. What is not debatable is that we federal judgesare neither philosopher kings empowered to fix things according to the dictates of what we fancy is our superior insight, nor rubber stamps, approving whatever laws the legislatures of this country happen to pass. We are bound, rather, by our oath to uphold and defend the Constitution, and we must therefore show restraint when that document restrains us and be active when it commands action.

As important as the Sixth Circuits Tyler decision is, that is not the most newsworthy aspect of this case. Because now a federal appeals court has struck down an Act of Congress on constitutional grounds.

That means the Obama administrations solicitor general will now petition the U.S. Supreme Court to grant certiorari to review this case. Under these rare circumstances, it is virtually 100 percent certain that the justices will grant review and hear the case.

That means that the Second Amendment will be back before the Supreme Court in 2017, after a ninth justice has been confirmed to replace Scalia. The Second Amendment has survived twice at the Supreme Court over the past decade, both by only 5-4 votes.

One of the ways that the justices could rule in favor of the federal government would be to overrule Heller, and hold that the Second Amendment does not apply at all to private citizens. [The leftist view of the Second Amendment is that its only meaning is that the federal government cannot stop state governments from arming their National Guard (i.e., militia) units with guns.]

So declarations from Donald Trump and Mike Pence that gun rights are in danger is no longer hypothetical. It is now certain. If Hillary Clinton wins the presidency, the Second Amendment can be effectively erased from the U.S. Constitution.

Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.

Visit link:
Breitbart: Supreme Court Second Amendment Case Could ...

I genuinely want to be done with defending the Second Amendment from theregular barrage of its historically illiterate and inept detractorsthe people who say this amendment protects only the right of the militia to own weapons.

One friend and fellow gun rights activist said its best to just ignore such people, in the same way that you might ignore people who say triangles have four sides or that the Sun orbits the Earth. It is tempting to just stop engaging the dopeswho simply refuse to consider basic, objective historical facts.

But I actually think this might be a bad strategy, as it may allow the debunked and nonsensical militia reading of the Second Amendment to gain ground. With a Hillary Clinton presidency and Supreme Court on the way, we need an American population that is historically knowledgeable. That means fighting back against the corruption of American knowledge.

Anti-gun folks will cheerfully exploit (and in many cases encourage) the ignorance of the American body politic to get what they want. It is important to push back against that wherever and whenever possible. By way of example: at the Huffington Post this week, Daryl Sneath, a recreational grammarian, is trying very hard totake advantage of American historical ignorance:

One of those things [the Framers]knew about is the comma, the only purpose of which is clarity. Doubtless the writers were acutely aware of this grammatical truism (despite their apparent affinity for complex diction) when they drew their collective stylus southward (certainly aware too of that symbolic direction) making the little mark immediately following the phrasethe right of the people to keep and bear arms. As such, the subject of the predicateshall not be infringedis clearly notthe right of the people. No subject is ever separated from its predicate by a comma alone. Put more plainly, the principal clause (or declaration) of the whole amendment is this:A well regulated militia shall not be infringed.The middle bit modifies the main.

Leaving aside the dubious grammatical reading, as well as the utter travesty of ahistorical non-engagement with contemporaneous eighteenth- and nineteenth-century primary sources, just marvel at this: A well regulated militia shall not be infringed. What would such a right evenmeanin the context of extant constitutional structure and precedent? It would actually meannothing.

Sneath seems to suggest that the Second Amendment provides some sort of bulwark to protect state militias against congressional infringement. But this is objectively, factually false: Congress hascompletecontrol over state militiasthe federal governmentcan organize and abolish the militiawhenever itfeels like it, and for whatever reasonand no serious historical scholar has ever suggested that the Second Amendment somehow circumscribes this congressional power in any way. Put another way: Sneath is implying that the Second Amendment prohibits Congress from doingthe very thing Congress is fully empowered to do.

I am genuinely curious: is there any other constitutional right, or any other constitutional amendment, that is so consistently and so aggressively handled with such base and inexcusable stupidity, on so regular a basis, and on such an industrial scale?I am not sure. You dont usually see arguments of this idiotic magnitude when it comes to, say, the Fourth Amendment, or the Sixth. You certainly see dumb interpretations of the First Amendment, but thats usually a matter ofdegree, notkind:you will have people arguing that the First Amendment doesnt protect hate speech, for instance, but nobody ever argues that the First Amendment only applies to state governments, say, rather than to individual members of the body politic.

Only the Second Amendment is subject to such illiterate and ahistorical analyses. Onceyou realizethat, you can fully graspwhy: many people simply do not like guns, and they will lieor else keep themselves deliberately ignorantto prevent other people from having them.

This is not an isolated incident: anti-gun folks are very happy to resort to falsehoods to advance their cause. Recently the National Rifle Association put out an ad that claims Hillary Clinton doesnt believe in your right to keep a gun at home for self-defense. This is entirely true, but Glenn Kessler over at the Washington Post calls it false:

Clinton has said that she disagreed with the Supreme Courts decision inHeller, but she has made no proposals that would strip Americans of the right to keep a gun at home for self-defense. Clinton is certainly in favor of more gun regulations and tougher background checks, and a more nuanced ad could have made this case.Conjuring up a hypothetical Supreme Court justice ruling in a hypothetical case is simply not enough for such a sweeping claim.That tips the ads claim into the Four-Pinocchio category.

This is just a shameless mess.As I have argued before, Clintons disagreement with the Supreme Courts ruling inHelleris anunequivocal rejection of the right to keep a gun at home for self-defense.That is the very rightHellerdecided in favor of!To be againstHelleris to be against the individual right to own firearms. This is not up for debate.

Now, Clinton claims she merely disagrees withHellerinsofar as she believes cities and states should have the power to craft common-sense laws to keep their residents safe. But this is nonsense:Hellernot onlyallows for such laws, itexplicitly authorizes them.Given that Hillarys justification for opposingHelleris meaningless, we must assume she opposes it for its core substancenamely, that it affirms the individual right codified in the Second Amendment.

In other words, Hillary Clinton wants to take your guns away. Shes been honest about it; why cant our fact checkers?

Read the rest here:
Second Amendment: How Does It Work? Left Has No Idea

Donald Trump keeps saying that Hillary Clinton wants to essentially abolish the Second Amendment. But the media fact checkers are having none of it. Last week, CNN called his accusation persistent and false. At the same time, a Washington Post editorial also called the claim absurd.

In his analysis for CNN, Eric Bradner acknowledges Clintons support for many different types of gun control -- a 25 percent tax on handguns, an assault weapons ban, repeal of laws allowing permitted concealed handguns, and background checks on the private transfer of guns. Clinton also has supported increased fees and a variety of regulations that her husband imposed. Thanks to Bill Clintons regulations, the number of licensed firearms dealers from 248,155 in 1992 to 67,479 in 2000 -- a 73 percent reduction.

The media picks and chooses when to take Clinton at her word. CNN pointed to a recent Fox News Sunday appearance where Hillary Clinton claimed: "I'm not looking to repeal the Second Amendment. I'm not looking to take people's guns away." The Washington Post noted a statement from her campaign website about how gun ownership is part of the fabric of many law-abiding communities.

But in June, ABCs George Stephanopoulos pushed Clinton twice on whether people have a right to own guns. But that's not what I asked. I said do you believe that their conclusion that an individual's right to bear arms is a constitutional right? Clinton could only say: If it is a constitutional right . . . .

Similarly, in New York Cityin the fall, she told donors: The Supreme Court is wrong on the Second Amendment, and I am going to make that case every chance that I get. In Maryland in April, Chelsea Clinton promised that her mom would appoint to the Supreme Court justices who would overturn past decisions that struck down gun-control measures. But the only lawsthat the Supreme Court evaluated were complete gun bans and a law that made it a crime to use a gun.

Washington, D.C., had a complete handgun ban in place until 2008. It was also a felony, punishable by five years in prison, to put a bullet in the chamber of a gun. This amounted to a complete gun ban on using guns for self-defense. The U.S. Supreme Courts ruling in District of Columbia v. Heller struck down that ban.

Clinton told Stephanopoulos her opinion of this ruling: I think that for most of our history, there was a nuanced reading of the Second Amendment until the decision by the late Justice Scalia. She continued, There was no argument until then that localities and states and the federal government had a right, as we do with every amendment, to impose reasonable regulation.

Clinton went on to talk about her push for expanded background checks, an issue that was irrelevant to Scalias decision in Heller. Instead, the question is why was D.C.s local gun ban a reasonable regulation. Why should people be imprisoned for five years for defending their families?

In McDonald v. City of Chicago (2010), Supreme Court Justice Stephen Breyer wrote in his dissent: "I can find nothing in the Second Amendments text, history, or underlying rationale that could warrant characterizing it as fundamental insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes. Ruth Bader Ginsburg and Sonia Sotomayor signed on to Breyers opinion.

Breyer and Ginsburg were both appointed by President Bill Clinton. Sotomayor was Obamas first nominee to the Supreme Court. Obamas second nominee, Elana Kagan, would clearly have voted the same way had she been on the court at the time of McDonald. Indeed, Kagan served in Bill Clintons administration and helped lead the Presidents gun control initiatives.

The Washington Post dismisses all this talk about the Supreme Court by saying that appointing Justices to the court would not be anything like abolishing an amendment, which no court can do. And it is true that the court cant simply remove the amendment from the Constitution. But the media is appearing to be deliberately obtuse. If the court reverses Heller and McDonald and changes its interpretation of the Second Amendment as Hillary promises, what will really be left of the Second Amendment?

The media might not like to admit it, but The War on Guns is real. If Hillary wins in November, she will appoint Scalias successor and the Supreme Court will overturn the Heller and McDonald decisions. Make no mistake about it, the government will again be able to ban guns. Her claim that she isn't looking to take people's guns away is not consistent with her promise to overturn existing Supreme Court decisions.

John R. Lott, Jr. is a columnist forFoxNews.com. He is an economist and was formerly chief economist at the United States Sentencing Commission. Lott is also a leading expert on guns and op-eds on that issue are done in conjunction with the Crime Prevention Research Center. He is the author of nine books including "More Guns, Less Crime." His latest book is "The War on Guns: Arming Yourself Against Gun Control Lies (August 1, 2016). Follow him on Twitter@johnrlottjr.

Read the original post:
Trump foes miss the mark on Clinton's Second Amendment ...

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.

And yet, for years, those 27 brief words have been the source of contentious debate -- seen by some as an inalienable protection against tyranny; by others as a dangerous anachronism.

Here's a look at the Second Amendment, its phrases parsed and placed in legal and historical context.

Our guides will be Constitutional experts Jeffrey Rosen and Jack Rakove.

What is a militia?

At the time of the American Revolutionary War, militias were groups of able-bodied men who protected their towns, colonies, and eventually states. "[When the Constitution was drafted], the militia was a state-based institution," says Rakove. "States were responsible for organizing this."

What did it mean to be well regulated?

One of the biggest challenges in interpreting a centuries-old document is that the meanings of words change or diverge.

"Well-regulated in the 18th century tended to be something like well-organized, well-armed, well-disciplined," says Rakove. "It didn't mean 'regulation' in the sense that we use it now, in that it's not about the regulatory state. There's been nuance there. It means the militia was in an effective shape to fight."

In other words, it didn't mean the state was controlling the militia in a certain way, but rather that the militia was prepared to do its duty.

What type of security was referred to here?

To get to that, consider the climate of the United States at the time. The country had just fought a war, won its independence and was expanding west. There were plenty of reasons to feel unsafe, and so "security" had a very palpable meaning.

"You have an expanding country, and the principle defense use of the militia would be to protect local residents from attack and invasion," Rakove says.

It also meant physical protection from government overreach.

"The idea of a state militia would also be attractive because it serves as a deterrent against national tyranny," says Rakove. "At the time, if government forces tried to take over land or overstep their boundaries, you'd have an institution in place -- the militia -- that would outnumber any army."

Of course, with the size and scope of the modern United States military, and the fact that militias as we know it no longer exist, that notion is hard to imagine today.

In the debate over the Second Amendment, this phrase, "a well regulated militia," remains one of the most cited and argued parts of the sentence.

What did a free state mean?

It may seem obvious, but Rosen and Rakove agree the Constitution bore a lot of contemporary moralism and not every word is well-defined.

In this case, the meaning of "state" is what it appears to be.

"This is referring immediately to 'state' as in one of the states of the original colonies," Rosen says. "James Madison had the 1777 Virginia Declaration of Rights by his side when he wrote the Bill of Rights and he essentially copied and pasted language from it."

But it could also speak to a larger understanding of liberty.

"So here," Rosen continues, "George Mason (the author of the Virginia Declaration of Rights) is talking about not only the free state of Virginia." He is also talking about a broader state of freedom.

What kind of rights?

This is another highly-contested area where it helps to know more about how the framers of the Constitution thought about complex ideas like "rights."

"When we think about 'rights,' we think of them as regulations and exemptions," Rakove says. "Back at the birth of our nation, they had a different quality. They were more moralistic."

Rosen says this viewpoint is reflected in the Declaration of Independence:

"The framers definitely believed in natural rights -- that they are endowed by a creator," Rosen says. "They believed we are born into a state of nature before we form governments, and that we are endowed with certain fundamental rights."

These natural rights included the right to religious expression, free speech, property and more. But they did not, Rosen says, specifically include the tenets of the Second Amendment.

"The framers did not talk about the right to bear arms as one of the set of natural rights," he says. "But it is fair to say that the right to alter and abolish government -- to the degree that modern people claim they have that right -- the framers certainly believe it."

"In that sense, it is historically accurate to say that the framers did recognize a natural right of self-defense."

Who are the people?

Even the term "people" -- the most basic catch-all -- has limitations.

"You say people, you mean individual persons," says Rakove. "But, if you go to Article I, Section 2 of the Constitution, it says the House of Representatives will be chosen by the people -- who are the persons? Who are entitled to exercise that suffrage? You see, you can use the term 'people' to imply a collective mass, but there are some categories of people that can be excluded."

After all, when the Constitution was written, slaves were considered property and women were not allowed to vote.

In addition, there is a more basic question of semantics: By "the people," is the Second Amendment referring to people as private entities, or as participants in the militia?

The legal consensus is that the Second Amendment applies to individual rights, within reasonable regulations. More on that below.

What are Arms in this context, and what is the scope of bearing Arms?

The decision struck down the Firearms Control Regulations Act of 1975, which heavily regulated owning and keeping firearms in the District of Columbia.

In the above excerpt, we can see the Court considered the awkward phrasing of the Amendment. The Justices divided the Amendment into an operative clause: "right of the people to keep and bear arms," and a prefatory clause: "A well regulated Militia, being necessary to the security of a free State." The court determined the relationship between these phrases, as well as the historical context of the Constutition's creation, clearly provided an individual right.

The term "arms" is also an ever-changing one, and there are ongoing debates about assault weapons and emerging firearm technologies.

"One thing people disagree about is whether assault weapons bans are constitutional," says Rosen. "They also disagree about how we should interpret the constitution in terms of history or in light of new technologies."

What does it all mean?

"It's really striking that since these Supreme Court decisions... lower courts have upheld almost all of the gun regulations they have asked to review," he says.

Rakove thinks the framers of the Constitution would be surprised at the conversations we are having today.

"While there is a common law right to self-defense, most historians think that it would be remarkable news to the framers of the Second Amendment that they were actually constitutionalizing a personal right to self-defense as opposed to trying to say something significant about the militia," he says.

Words like "militia" and "rights" are loaded with historical context and nuance that can act as a Rorschach test, leading even the best-intentioned interpreters to different conclusions. If there were any clear answers, these 27 words wouldn't be so incendiary.

Jack Rakove is the William Robertson Coe Professor of History at Stanford University. His book "Original Meanings: Politics and Ideas in the Making of the Constitution" won a Pulitzer Prize in History.

See more here:
Deconstructing the Second Amendment - cnn.com

Republican presidential nominee Donald Trump raised eyebrows Tuesday when he suggested there is "nothing" that can be done to stop Hillary Clinton's Supreme Court picks, except "maybe" the "Second Amendment people."

"Hillary wants to abolish, essentially abolish the Second Amendment," Trump said to the crowd of supporters gathered in the Trask Coliseum at North Carolina University in Wilmington. "If she gets to pick her judges, nothing you can do, folks.

"Although the Second Amendment people, maybe there is. I don't know."

After the speech, Clinton's campaign seized on the remarks.

"This is simple what Trump is saying is dangerous," read a statement from campaign manager Robby Mook. "A person seeking to be president of the United States should not suggest violence in any way."

ABC News reached out to the Secret Service for response to Trump's comment, and the agency said it was aware of the remarks.

The Trump campaign insisted the candidate's words referred to the power of "Second Amendment people" to unify.

"It's called the power of unification 2nd Amendment people have amazing spirit and are tremendously unified, which gives them great political power," read a statement, titled "Trump Campaign Statement Against Dishonest Media," from senior communications adviser Jason Miller.

In a tweet Tuesday night, Trump tried to explain his remarks.

And in an interview with Fox News Tuesday night, Trump told the network: "This is a strong, powerful movement, the Second Amendment" and called the NRA "terrific people."

"There can be no other interpretation," he said of his earlier remarks. "I mean, give me a break."

Trump's running mate Mike Pence rose to the candidate's defense and said Trump was not insinuating that there should be violence against Clinton.

"Donald Trump is clearly saying is that people who cherish that right, who believe that firearms in the hands of law-abiding citizens makes our communities more safe, not less safe, should be involved in the political process and let their voice be heard," Pence said today in an interview with NBC10, a local Philadelphia TV station.

Clinton's running mate, Virginia Sen. Tim Kaine told reporters today in Trump's comments "revealed this complete temperamental misfit with the character thats required to do the job and in a nation."

"We gotta be pulling together and countenancing violence is not something any leader should do," Kaine said.

Connecticut Democratic Sen. Chris Murphy, who led a 15-hour filibuster in June to force a vote on gun control measures, took to Twitter to voice his displeasure with Trump's comments.

"This isn't play," wrote Murphy. "Unstable people with powerful guns and an unhinged hatred for Hillary are listening to you, @realDonaldTrump."

And Rep. Eric Swalwell, D-Calif., who wrote in a tweet that because he believed Trump "suggested someone kill Sec. Clinton," called for a Secret Service investigation.

See the rest here:
Trump: Maybe '2nd Amendment People' Can Stop Clinton's ...

Rather is talking about Donald Trump's remark that "Second Amendment people" might be able to stop Hillary Clinton's appointment of Supreme Court justices.

The comment raised the specter of political violence and earned widespread condemnation, though Trump supporters denied that he was encouraging violence.

"To anyone who still pretends this is a normal election of Republican against Democrat, history is watching. And I suspect its verdict will be harsh," Rather wrote on Facebook shortly after it happened on Tuesday afternoon.

Related: New York Daily News calls for Trump to end his campaign

Rather -- who covered the assassination of John F. Kennedy in Dallas -- called Trump's "Second Amendment people" remark "a new low," unprecedented "in the history of American presidential politics."

Writing about political figures who have reluctantly endorsed Trump, he said, "Many have tried to do a side-shuffle and issue statements saying they strongly disagree with his rhetoric but still support the candidate. That is becoming woefully insufficient. The rhetoric is the candidate."

Fellow journalists were the other audience for his Facebook post.

"We will see whether major newscasts explain how grave and unprecedented this is and whether the headlines in tomorrow's newspapers do it justice," he wrote. "We will soon know whether anyone who has publicly supported Trump explains how they can continue to do."

Rather was the anchor and managing editor of the "CBS Evening News" for more than 20 years. He now hosts an interview series on AXS TV and runs a production company.

Related: Clinton challenges Trump by saying she'll attend all three debates

Several of his Facebook essays have gone viral in recent months, picking up hundreds of thousands of shares and comments. His latest one was a top trend on Facebook by Wednesday morning.

Rather seemed to be agreeing with what a number of media critics have argued recently: That Trump cannot be covered and treated like a "normal" Republican or Democratic candidate for president.

Earlier this week, reacting to a "Reliable Sources" segment about Trump, Rather wrote that "This is perhaps the most important time in election history for the media. It's time for some reporters, especially those that often interview Donald Trump, to get a spine. Tough questions are our job."

CNNMoney (New York) First published August 10, 2016: 9:01 AM ET

See more here:
Dan Rather calls Donald Trump's 'Second Amendment people ...