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Six Amendments (book cover), by Justice John Paul Stevens
As if on cue, US Supreme Court Justice John Paul Stevens (ret.) has written a new book, titled Six Amendments: How and Why We Should Change the Constitution (Little, Brown & Co., due April 22, 2014). He helps open up discussion on the US Constitution, including some of the faulty Scalia-led decisions.

It's worth reminding young Democrats that amending the US Constitution has been in our national party platform since 1944, up through the present. This is true even if publicly supporting this amendment might work against candidates in some districts -- no-one forces them to do so, but we continue the dialogue. (Surprisingly, the GOP also supported this Equal Rights Amendment from 1940-1980.) Progressives look forward to achieving what is right, not simply driven by polls of current political expediency.

A full review of Stevens' book will have to wait until publication, but a few passages published in BusinessWeek and elsewhere are already noteworthy.

Justice Stevens served on the US Supreme Court for 35 years -- the second-longest of any Justice in US history. He knows a thing or two about the US Constitution and American jurisprudence. As with Justice Warren Burger, Stevens disagrees with those who (like Scalia) think the Second Amendment guarantees an individual's right to firearms for self-defense, and who argue that this trumps all other rights and goals.

Stevens writes in this book:

Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands.
[For 200 years], federal judges uniformly understood that the right protected by the [2nd Amendment] text was limited in two ways: first, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.
Justice Stevens repeats the comment from Chief Justice Warren Burger (1969-1986), about the gun-lobby's campaign to oppose gun control laws because of Second Amendment rights:
“one of the greatest pieces of fraud—I repeat, fraud—on the American public by special interest groups that I have ever seen in my lifetime.” [quoting Burger]
Stevens wrote the dissent in Heller vs. DC, joined by the three other liberal justices. (Breyer wrote a second dissent, also joined by his three liberal colleagues.)

Reading the majority opinion by Scalia (joined by the four right-wingers), I'm struck that Scalia's argumentative style and repeated denunciation of Stevens is behavior that might be characterized as "dickish." Scalia's rhetorical bullying has been picked up by others who assert his misinterpretation of the 'right to keep and bear arms.' Here are just a few examples of Scalia's arrogant, aggressive, condescending and disrespectful tone, which I've taken from Heller 2008:

Justice Stevens propose is not even the (sometimes) idiomatic meaning...
Justice Stevens uses the same excuse... That analysis is faulty [and] unknown this side of the looking glass.
Justice Stevens flatly misreads the historical record.
Other than that erroneous point, Justice Stevens has brought forward absolutely no evidence...
Justice Stevens’ view thus relies on the proposition, unsupported by any evidence...
Justice Stevens betrays a fundamental misunderstanding of a court’s interpretive task.
Unfortunately for Justice Stevens’ argument ... Justice Stevens’ statement ... is simply wrong.
Nothing so clearly demonstrates the weakness of Justice Stevens’ case.
Justice Stevens can say again and again ... but the words of the opinion prove otherwise.
It is particularly wrongheaded...
It is demonstrably not true that, as Justice Stevens claims...
Justice Stevens is dead wrong to think that...
Justice Stevens resorts to the bizarre argument...
Contrary to Justice Stevens’ wholly unsupported assertion...
Justice Stevens provides no support whatever for his contrary view...
Justice Stevens’ accusation that this is “not accurate,” is wrong.
[T]heir erroneous reliance upon an uncontested and virtually unreasoned case...
[Etc.]
Stevens' book is a reminder that this issue is far from over.

Stevens notes in Six Amendments that the Heller decision did not preclude federal, state, or local governments from restricting the ownership of assault rifles (as used in the CT, VA, CO and AZ mass-shootings).

Stevens believes the Second Amendment refers to the threat a national standing army posed to state sovereignty, and not to e.g. hunters' foraging or homeowners' anxiety about intruders. But post-Heller, in order to make this abundantly clear in the face of Scalia's misinterpretation, Stevens proposes that the Second Amendment should be modified by adding five words, as follows:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the militia shall not be infringed.
(By 'serving' I presume he means actively in a formal, organized state militia -- not in the informal sense of 'every male citizen age 18-44', nor in self-proclaimed racist 'militias'.)

In his dissent to Heller, Stevens summarized the question before the court, and his answer to it:

Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939), provide a clear answer to that question.

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution. [...]

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 Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding... I do not know whether today’s decision will increase the labor of federal judges to the “breaking point” envisioned by Justice Cardozo, but it will surely give rise to a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries. ... 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... I could not possibly conclude that the Framers made such a choice.

Democrats need to read Stevens' dissent with Scalia, to understand and to communicate to others that Scalia and his 4 right-wing fellow-travelers do not have the final word on this. We all need to bone up on our legal scholarship and to practice countering Scalia-esque bullying. The GOP, Federalist Society, gun-lobby, GOA, SAF, NAGR, Koch brother's ALEC, and other right-wing groups have amassed a large arsenal of arguments, research, funding and organizations to try and push their view of the Second Amendment and to denounce those who oppose them.

Stevens' forthcoming book is a salvo announcing that this battle is just beginning. At age 93, it's also a torch that he is passing on to the next generation, especially to those who came of political-age after the 5-4 Heller and McDonald cases, and who might otherwise take Heller as immutable 'gospel'. Yes, Heller is the current law, but laws -- and even the Constitution itself -- can and at times should be re-interpreted or amended.

Put this wise judge's book on your wishlist, and read it (not the right-wing attacks) when it comes out in April.

Originally posted to S. Wraight on Sun Feb 23, 2014 at 06:23 AM PST.

Also republished by Shut Down the NRA, Repeal or Amend the Second Amendment (RASA), and Firearms Law and Policy.

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  •  Tip Jar (205+ / 0-)
    Recommended by:
    tgrshark13, NancyWH, oldpotsmuggler, We Shall Overcome, a2nite, Glen The Plumber, timewarp, Joy of Fishes, mudslide, indycam, gizmo59, tampaedski, marina, Patango, CwV, VPofKarma, bookwoman, RFK Lives, Wayward Wind, buffie, Jollie Ollie Orange, elziax, Habitat Vic, zerelda, dle2GA, cybersaur, sny, Tortmaster, Bill in Portland Maine, wilderness voice, AdamR510, deha, Hillbilly Dem, Susipsych, rustypatina, Doctor Who, petulans, ChemBob, Navy Vet Terp, Anthony Page aka SecondComing, Dr Erich Bloodaxe RN, Tommye, Loudoun County Dem, spooks51, jds1978, dmhlt 66, Cronesense, Byron from Denver, Rhysling, fcvaguy, Subterranean, onionjim, thomask, 88kathy, GDbot, nosleep4u, celdd, rapala, schumann, AaronInSanDiego, geebeebee, greycat, Grandma Susie, emelyn, lcrp, Smoh, Simplify, jck, Ojibwa, pvasileff, Rosaura, nice marmot, Sun Tzu, roadbear, chrississippi, dewtx, maggiejean, ThatSinger, Lawrence, realalaskan, rja, Box of Rain, biggiefries, p gorden lippy, tegrat, VTCC73, CenPhx, LaFeminista, antooo, political mutt, Shockwave, Blue Bell Bookworm, Polly Syllabic, Ice Blue, tuesdayschilde, tapestry, Lefty Coaster, Eric Nelson, Elizaveta, Robynhood too, majcmb1, Liberal Thinking, GeorgeXVIII, Involuntary Exile, reasonablegunsplz, EdSF, Laurel in CA, cocinero, 1BQ, cal2010, LilithGardener, splashy, doroma, TheFern, journeyman, AllanTBG, technomage, Dolphin99, The Jester, ARS, eagleray, samddobermann, david78209, camlbacker, sabo33, JayC, Sylv, i understand, MartyM, Mokurai, skod, CoExistNow, Cofcos, WakeUpNeo, Johnny Q, Simple, Villanova Rhodes, wildweasels, liberalguy, HiKa, SaintC, Showman, todamo13, Pluto, yellowdogsal, flitedocnm, skybluewater, rscopes, FogCityJohn, alasmoses, monkeybrainpolitics, Laughing Vergil, mythatsme, Railfan, No Exit, psnyder, Nulwee, dawgflyer13, 207wickedgood, zerone, newinfluence, Dave in Northridge, CA Nana, Josiah Bartlett, LSmith, pat of butter in a sea of grits, radmul, WisePiper, Colorado is the Shiznit, BarackStarObama, SeaTurtle, myrmecia gulosa, JMcDonald, sc kitty, ivote2004, Wednesday Bizzare, juca, john07801, Debby, jayden, MichaelNY, eztempo, kurt, Gareth, Skyye, SC Lib, TomFromNJ, joanil, jarbyus, BYw, tytalus, mikeconwell, vadasz, JDWolverton, prettygirlxoxoxo, Ohkwai, kenwards, AnnieR, Catte Nappe, TX Unmuzzled, Liberal Mole, Silvia Nightshade, MKinTN, Rashaverak, i saw an old tree today
  •  I'd Bet the Other 5 Proposals are More Important (58+ / 0-)

    than the one about the 2nd.

    My pet peeve relating to the Court's money=speech and Citizen United decisions turns on the peculiar wording of the 1st Amendment which would be drastically improved with 2 words.

    For example, suppose the 1st Amendment were phrased like a key section of the 2nd ["the right OF THE PEOPLE to keep and bear"] and others in the Bill of Rights.

    Suppose the 1st Amendment said "Congress shall make no law respecting the establishment of religion, nor infringing on THE PEOPLE's free exercise thereof; or of the freedom of THE PEOPLE's speech...."

    The Citizens United issue might well be totally or nearly gone by removing the grammatical sense that it is the exercise of religion and the speech itself that possess the freedom, and not the human people.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Sun Feb 23, 2014 at 06:39:49 AM PST

    •  I can't find any links addressing his other 5 (11+ / 0-)

      proposed amendments.  All anyone seems to be noticing is his (common sense) proposed revision to the 2d Amendment.

      Some men see things as they are and ask why. I dream of things that never were and ask why not?

      by RFK Lives on Sun Feb 23, 2014 at 07:30:22 AM PST

      [ Parent ]

    •  "Corporations are people, too, my friend." (9+ / 0-)

      I don't think that inserting "the people" would stop Citizens United type cases. The CU case had to do with an anti-Hillary Clinton video released too close to an election under a state law. The extension of "free speech" rights to corporations results from the fact  that the individuals who showed the video were joined together in a corporate structure. And, per previous SCOTUS decisions, money = speech.
         A better change would be to impose constitutional limits on campaign spending and treat corporations or similar organizations as exactly the same as individuals - IOW, if there is a $5000 limit on individual contributions, a corporation also has a $5000 limit.

      •  Right now the limit on campaign contributions to (0+ / 0-)

        a Federal candidate by a corporation is $0.  This has been the case for over 100 years.  Are you proposing that they have this increased to $5000?

        The most important way to protect the environment is not to have more than one child.

        by nextstep on Sun Feb 23, 2014 at 02:31:53 PM PST

        [ Parent ]

      •  Amending the First Amendment (2+ / 0-)
        Recommended by:
        Old Sailor, Sharon Wraight

        would do no good as long as we had Supreme Court Justices who don't care what the Constitution says, because they know better what the Founders meant because God or money or Real Americans or something.

        The clearest case of this in US history is the claim by the Confederacy that the Confederate Constitution was the actual Original Intent of the (slave-owning) Founders. Whenever you hear the phrase Original Intent, think of Jefferson Davis.

        Also, when you hear about the line-item veto, which was in the Confederate Constitution, and about keeping the Federal government out of infrastructure spending (ditto), and especially about this being a Christian country (ditto ditto).

        Back off, man. I'm a logician.—GOPBusters™

        by Mokurai on Sun Feb 23, 2014 at 04:12:40 PM PST

        [ Parent ]

    •  This is a horrible idea (13+ / 0-)
      Suppose the 1st Amendment said "Congress shall make no law respecting the establishment of religion, nor infringing on THE PEOPLE's free exercise thereof; or of the freedom of THE PEOPLE's speech...."
      It would remove first amendment protection from virtually everything except someone standing in a public area talking.  Books, movies, newspapers, magazines, tv, ads -- virtually none of those are speech by "people."  They are all paid for, and disseminated by, corporate-type entities (corporations, LLC's, LP's, etc.) in exactly the same way that "Hilary the Movie" was paid for and disseminated by a corporation.  

      Your amendment, if it limits the First Amendment protection to speech that is not paid for, or disseminated by, corporate entities, would allow government control over the content of all those things.  

      •  You forget that freedom of the press (11+ / 0-)

        is also protected.

        But I would prefer a ruling or law clarifying that money is property, not an action such as speaking.

      •  yet most of those things (0+ / 0-)

        (which is to say, all of them that had been invented at the time) were adequately protected prior to the misapplication of 14th amendment personhood to corporations.

        Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

        by happymisanthropy on Sun Feb 23, 2014 at 02:11:37 PM PST

        [ Parent ]

        •  You fell for the myth. (0+ / 0-)

          The CU decision did not hold that corporations are persons.  It specifically held that corporations were not "natural persons" but were associations of persons, which they are.

          You should read the decision.  It recognized that the First Amendment is a limit on government, and has long applied to corporations even though they are not "natural persons":  

          The Court has recognized that First Amendment protection extends to corporations. Bellotti, supra , at 778, n. 14 (citing Linmark Associates, Inc. v. Willingboro , 431 U. S. 85 (1977) ; Time, Inc. v. Firestone , 424 U. S. 448 (1976) ; Doran v. Salem Inn, Inc. , 422 U. S. 922 (1975) ; Southeastern Promotions, Ltd. v. Conrad , 420 U. S. 546 (1975) ; Cox Broadcasting Corp. v. Cohn , 420 U. S. 469 (1975) ; Miami Herald Publishing Co. v. Tornillo , 418 U. S. 241 (1974) ; New York Times Co. v. United States , 403 U. S. 713 (1971) (per curiam); Time, Inc. v. Hill , 385 U. S. 374 (1967) ; New York Times Co. v. Sullivan, 376 U. S. 254 ; Kingsley Int’l Pictures Corp. v. Regents of Univ. of N. Y. , 360 U. S. 684 (1959) ; Joseph Burstyn, Inc. v. Wilson , 343 U. S. 495 (1952) ); see, e.g., Turner Broadcasting System, Inc. v. FCC , 520 U. S. 180 (1997) ; Denver Area Ed. Telecommunications Consortium, Inc. v. FCC , 518 U. S. 727 (1996) ; Turner , 512 U. S. 622 ; Simon & Schuster , 502 U. S. 105 ; Sable Communications of Cal., Inc. v. FCC , 492 U. S. 115 (1989) ; Florida Star v. B. J. F. , 491 U. S. 524 (1989) ; Philadelphia Newspapers, Inc. v. Hepps , 475 U. S. 767 (1986) ; Landmark Communications, Inc. v. Virginia , 435 U. S. 829 (1978) ; Young v. American Mini Theatres, Inc. , 427 U. S. 50 (1976) ; Gertz v. Robert Welch, Inc. , 418 U. S. 323 (1974) ; Greenbelt Cooperative Publishing Assn., Inc. v. Bresler , 398 U. S. 6 (1970) .

               This protection has been extended by explicit holdings to the context of political speech. See, e.g., Button , 371 U. S., at 428–429; Grosjean v. American Press Co. , 297 U. S. 233, 244 (1936) . Under the rationale of these precedents, political speech does not lose First Amendment protection “simply because its source is a corporation.” Bellotti, supra, at 784; see Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U. S. 1, 8 (1986) (plurality opinion) (“The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster” (quoting Bellotti, 435 U. S., at 783)).      The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not “natural persons.” Id., at 776; see id. , at 780, n. 16. Cf. id. , at 828 (Rehnquist, J., dissenting).

          •  I wasn't talking about CU (2+ / 0-)
            Recommended by:
            Sharon Wraight, Tonedevil

            I was talking about Santa Clara vs. Southern Pacific Railroad.

            Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

            by happymisanthropy on Sun Feb 23, 2014 at 03:06:42 PM PST

            [ Parent ]

            •  Where did that decision say (0+ / 0-)

              corporations are people????

              The decision is here.  It's not anywhere in that decision.  

              If you are talking about the first decision to hold that corporations enjoy some constitutional protections, that's probably Dartmouth College v. Woodward in 1819.  And there's nothing radical about that.  No legal association of persons could exist if it did not have some constitutional protection.  For example, how practical would it be for the government to be able to search and seize property of any club, union, corporation, LLC, association, etc. any time it wanted?  Of course some constitutional protections extend to associations of people like corporations.  

              •  You know damn well (1+ / 0-)
                Recommended by:
                Tonedevil

                what Santa Clara has to do with the history of corporate personhoood.  Fuck you for playing stupid.

                Wikipedia:

                In Santa Clara County v. Southern Pacific Railroad - 118 U.S. 394 (1886), the reporter noted in the headnote to the opinion that the Chief Justice began oral argument by stating, "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."[1] While the headnote is not part of the Court's opinion and thus not precedent, two years later, in Pembina Consolidated Silver Mining Co. v. Pennsylvania - 125 U.S. 181 (1888), the Court clearly affirmed the doctrine...

                Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

                by happymisanthropy on Sun Feb 23, 2014 at 03:55:44 PM PST

                [ Parent ]

                •  Sigh. My point is that (0+ / 0-)

                  the Supreme Court has never declared corporations to be "persons" in the sense that you and I are a person.  Whether some Reporter put that in a paper or not  -- that did not matter AT ALL to the Supreme Court's subsequent decisions, including CU.  There is a long line of cases -- dating back to 1819 -- that corporations were entitled to some constitutional protection (in the 1819 case, Article I, section 10, clause 1), and a long line of cases specifically holding that corporations were entitled to First Amendment protection.  This is despite the fact that corporations are not "natural persons," not BECAUSE they are "natural persons."

                  So, I'll be clear.  

                  If by "corporate personhood," you mean that the Supreme Court has declared that corporations are the same as "natural persons," that notion is a myth.  

                  If by "corporate personhood," you mean that corporations,, despite NOT being "natural persons," are entitled to some of the same constitutional and legal protections as natural persons, then that's a very uncontroversial notion that dates back to at least 1819.  

                  •  Stop playing stupid. (2+ / 0-)
                    Recommended by:
                    Old Sailor, Tonedevil

                    It's really fucking pissing me off.  The question is not whether the supreme court said that corporations have two arms, two legs, and various genitals.  Pretending that that is the issue is just trolling.

                    The issue is the fucking 14th amendment.  If corporations are not people under the 14th, then they can't have selectively incorporated protections against state laws derived from the bill of rights.

                    And, conversely, if they do have rights incorporated under the 14th amendment, then the supreme court has made them equal to human persons, regardless of the hand-waving involved in getting there.

                    Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

                    by happymisanthropy on Sun Feb 23, 2014 at 10:55:12 PM PST

                    [ Parent ]

                    •  When you say "corporations are people under the (1+ / 0-)
                      Recommended by:
                      VClib

                      14th Amendment," all that means is that corporations -- which, technically, are made up of people (shareholders) who pool their resources (money) to operate a business) -- have 14th Amendment protection, such as due process rights.

                      Two points:  

                      1.  Saying "corporations are 'persons' under a specific law" is not the same as saying "corporations are persons."  Many laws use the word "person" and then define it to include groups or associations of persons, like clubs, businesses, unions, etc.  It's a shorthand way of saying that groups or associations of people are covered by the law as well. It's certainly NOT equated a corporation to a person for any purpose OTHER THAN the effect of that specific law.

                      2.  Do you have a problem with corporations having some rights under the constitution?  If they didn't have due process rights, then a conservative president like Bush could just order seizure of the assets of an entity they didn't like, such as Planned Parenthood and shut them down completely.  Don't you think that an entity ought to be protected by the Fifth Amendment's guarantee against "seizure" or by the 14th Amendment's guarantee of due process?  

                      •  Oooh scary bogeyman. (2+ / 0-)
                        Recommended by:
                        Tonedevil, Old Sailor

                        They were adequately protected before there was a 14th amendment.  They were adequately protected before the 14th was misapplied on their behalf.  They don't need to steal the rights of human beings, to the great detriment of the human beings thus deprived, to get there.

                        Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

                        by happymisanthropy on Mon Feb 24, 2014 at 09:06:54 AM PST

                        [ Parent ]

              •  Of course they can. (1+ / 0-)
                Recommended by:
                Sharon Wraight

                Why do you think it's legal for the NSA to collect all of the phone meta data.

                We were not ahead of our time, we led the way to our time.

                by i understand on Sun Feb 23, 2014 at 04:13:35 PM PST

                [ Parent ]

              •  Yes, it wasn't in the decision (3+ / 0-)

                it was in a headnote.

                The court reporter, former president of the Newburgh and New York Railway Company J.C. Bancroft Davis, wrote the following as part of the headnote for the case:
                   "One of the points made and discussed at length in the brief of counsel for defendants in error was that 'corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.' Before argument, Mr. Chief Justice Waite said: The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."
                In other words, the headnote claimed that all of the justices believed that corporations enjoyed rights under the Fourteenth Amendment, adopted in 1868. In fact, the headnote was only a reporting by the Court Reporter of the Chief Justice's personal interpretation of the Justices' opinions. The issue of applicability of "Equal Protection to any persons" to the railroads was not addressed in the decision of the Court in the case.

                Back off, man. I'm a logician.—GOPBusters™

                by Mokurai on Sun Feb 23, 2014 at 04:18:19 PM PST

                [ Parent ]

                •  The fact that a reporter misstated the holding of (0+ / 0-)

                  that case really doesn't matter.  The Reporter was not declaring corporations to be "persons" in the sense that you and I are persons.  The point he was making was that corporations were entitled to some of the same constitutional protections as persons -- like due process.  Even if that concept was not part of that particular case, it is a non-controversial concept that dates back to at least 1819.

                  The Supreme Court has never declared that corporations are persons.  The Supreme Court has -- repeatedly -- said that corporations enjoy some of the same constitutional protections as persons.  And it has to be that way.  A business could never function if its assets could be seized by the government at any time without due process, for example.  And as I pointed out, if corporations were not entitled to First Amendment protection, then the government could ban books, movies, magazines, photographs, etc. that it didn't like.

          •  They're not "associations of persons" (3+ / 0-)

            They are legal entities created by the Government. They have no rights or even existence other then those conveyed to them by the governing law.

            A corporation is a separate legal entity that has been incorporated either directly through legislation or through a registration process established by law.

            We were not ahead of our time, we led the way to our time.

            by i understand on Sun Feb 23, 2014 at 04:11:49 PM PST

            [ Parent ]

          •  They're not "associations of persons." (5+ / 0-)

            At least not in the sense we think of people, i.e. natural persons.

            As you should know, a corporation is an entirely fictitious juridical entity.  It is not an "association of persons" at all.  There's no requirement that a corporation have more than one owner.  Indeed, there's no requirement that a corporation have an actual human being as its owner.  Many corporations are owned by other corporations, and many corporations have no employees.  They "exist" only on paper.

            What a corporation is, is a liability-limiting device.  It permits people to protect themselves from legal liabilities the fictitious entity may incur.  A shareholder has no liability for the corporation's acts beyond his investment.  He has no relationship to other shareholders save as a co-owner in a legal entity. Far from "associating" through a corporation, shareholders (the corporation's owners) disassociate from each other.  

            There are true associations of persons, like unions, fraternal organizations, and clubs.  But a corporation isn't one of them.

            "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

            by FogCityJohn on Sun Feb 23, 2014 at 06:28:29 PM PST

            [ Parent ]

    •  I don't think that fixes Citizen's United (3+ / 0-)
      Recommended by:
      Sharon Wraight, Smoh, Shockwave

      remember, the premise of that ludicrous ruling was that corporations are people too.

      KOS: "Mocking partisans focusing on elections? Even less reason to be on Daily Kos."

      by fcvaguy on Sun Feb 23, 2014 at 08:15:08 AM PST

      [ Parent ]

      •  The ruling went wrong eslewhere, too! (4+ / 0-)
        Recommended by:
        fcvaguy, Sharon Wraight, Smoh, Shockwave

        They also ruled that money is speech. This unleashed the torrent of unlimited, anonymous money spent on buying election results.

      •  fcva - that was NOT the ruling of Citizens United (4+ / 0-)

        In fact the majority made a very clear distinction between the rights of "human persons" and "groups of people" such as clubs, unions and corporations. The Court made no ruling on issues such as "corporate personhood" or the notion that "corporations are people too". The SCOTUS has never ruled that corporations have all the same rights as "human persons" in CU or any prior Supreme Court case, however it has somehow echoed through the Internet that they have on both.

        Regarding Romney's completely inaccurate remark that "corporations are people too", I would have expected more from someone who graduated cum laude from Harvard Law School, although he never did practice law.

        "let's talk about that"

        by VClib on Sun Feb 23, 2014 at 12:28:40 PM PST

        [ Parent ]

        •  asdf (0+ / 0-)
          The SCOTUS has never ruled that corporations have all the same rights as "human persons" in CU or any prior Supreme Court case, however it has somehow echoed through the Internet that they have on both.
          But they did say that corporations have equal 1st amendment protection, as well as standing to sue under the 14th amendment which explicitly applies only to persons.

          Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

          by happymisanthropy on Sun Feb 23, 2014 at 02:14:39 PM PST

          [ Parent ]

          •  The ruling was more narrow (1+ / 0-)
            Recommended by:
            Sharon Wraight

            and not related specifically to corporations. What the Court ruled is that certain First Amendment rights are not limited by who is speaking. So clubs, unions, and corporations "groups of people" have the same rights of political speech as people, as long as that speech isn't coordinated with campaigns. People have the right to make actual campaign contributions while corporations are prohibited from making campaign contributions to candidates for federal office by The Tillman Act of 1907.

            I don't have time to go and read again the CU majority opinion but as I recall the majority did not rely on the 14th or provide "groups of people" any new rights under the 14th. The ruling was based on the First Amendment and several precedents, primarily Buckley v Valeo.

            This is an interesting article from truthout that touches several of the issues you raised.

            http://www.truth-out.org/...

            "let's talk about that"

            by VClib on Sun Feb 23, 2014 at 05:45:38 PM PST

            [ Parent ]

    •  A corporation is just a group of people (0+ / 0-)

      (-5.50,-6.67): Left Libertarian
      Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

      by Sparhawk on Sun Feb 23, 2014 at 08:23:20 AM PST

      [ Parent ]

    •  Please provide an example of how this wording (0+ / 0-)

      change you propose would make a difference to any SCOTUS decision of your choosing.

      In the case of Citizens United, take the case of a Union engaged in political speech in ads or on the ground within 30 days of an election.

      The most important way to protect the environment is not to have more than one child.

      by nextstep on Sun Feb 23, 2014 at 02:28:56 PM PST

      [ Parent ]

    •  Dust off the Ordenance of 1792 or (0+ / 0-)

      Signed by no less than GW. That would link the gun rights and the militia directly.

      Make the USA like Switzerland, but cheaper, all militia members would supply their own weapon.

  •  unfortunately, amending the Constitution (9+ / 0-)

    is virtually impossible now.  Maybe someday if demographic shifts push us so overwhelmingly to the left that we can overcome the gerrymandering . . . or if the Republicans gain just a few more legislatures and the presidency.

    Dogs from the street can have all the desirable qualities that one could want from pet dogs. Most adopted stray dogs are usually humble and exceptionally faithful to their owners as if they are grateful for this kindness. -- H.M. Bhumibol Adulyadej

    by corvo on Sun Feb 23, 2014 at 06:43:46 AM PST

    •  Who said "now"?? :-) Not Stevens, not me. (19+ / 0-)

      I don't understand where that thought comes from, though I've read it elsewhere. Maybe it's somehow tied in to the Twitterverse, or a 24/7 news cycle, that progressives are loosing our ability to see the long-term? The Tea-Party funders and others who read the Powell Memo are acting long term.

      Fwiw, I see reducing gun-violence as a 40-200 year undertaking, during which all options are on the table.

      •  Of course not now. (8+ / 0-)

        A generation from now maybe.  Assuming that climate change hasn't done us in by then.

        Dogs from the street can have all the desirable qualities that one could want from pet dogs. Most adopted stray dogs are usually humble and exceptionally faithful to their owners as if they are grateful for this kindness. -- H.M. Bhumibol Adulyadej

        by corvo on Sun Feb 23, 2014 at 07:04:33 AM PST

        [ Parent ]

      •  Exactly, I see reducing gun ... (3+ / 0-)
        Recommended by:
        Sharon Wraight, Smoh, tytalus

        ... violence as a long-term proposition. That's why I suggest we look at the long-term past for reasons to amend/repeal the second amendment. How many armed revolts have occurred in the United States, France and the U.K. since they became "Democratic"†?

        That's over 500 years of history, and I think we need to balance that with the fact that more people have died from gun violence than from all the wars in this country's history.

        The Founding Fathers were concerned about a Government that was so over-bearing that a second amendment was seen as necessary. That was their experience. We have over 200 years of a contrary experience just in the United States. Sure, there will always be a few doomsday preppers and anarchists who will argue otherwise, but they will not always have a political powerhouse like the NRA to back their fear-mongering. The pendulum will swing, and we need to be ready for it.

        ---------------

         †  I understand that the U.K. isn't exactly a "Democracy," but since the early 1900s, it is close enough to count for this analysis.

        Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting. Ron Paul thinks he's a wit, but he's only half right.

        by Tortmaster on Sun Feb 23, 2014 at 08:39:04 AM PST

        [ Parent ]

    •  Constitution was formally amended 1x since '71 (12+ / 0-)

      which is why Roberts Court is so determined to informally amend it.  There simply isn't the ability in the current political climate to ratify a substantive amendment.

      The 27th Amendment (which took 202 years to ratify) is fairly innocuous--it deals w/ Congressional pay increases.  The 26th Amendment (lowering the voting age to 18) was the last meaningful amendment.  Were it not for the furor over the Vietnam-era draft, I'm not sure it would've been adopted.

      As a point of contrast, prior to the current 43 year (and counting) drought, the Constitution was amended 7 times in 40 years from 1932-71.

      Some men see things as they are and ask why. I dream of things that never were and ask why not?

      by RFK Lives on Sun Feb 23, 2014 at 07:14:50 AM PST

      [ Parent ]

      •  Those droughts are typical (7+ / 0-)

        Amendments 1-12 were ratified between 1791 and 1804, then nothing until the Civil War; that brought three amendments in five years (13-15 between 1865 and 1870).

        Nothing again until 1913, when the 16th and 17th were ratified, followed by 18 and 19 by 1920.

        After that, there were shorter time periods between amendments, and they didn't tend to be blocks of amendments as before (e.g., two in 1933, one in 1951, etc.)

        So the 40-year drought you refer to is pretty much in line with the overall history of amending the Constitution. The post-WWII period is more the exception.

        But my mind won't really be blown ... like the blow that will be mine when I get my sig line in a front page Cheers & Jeers post.

        by VetGrl on Sun Feb 23, 2014 at 07:58:03 AM PST

        [ Parent ]

        •  What else tops your "wish list," if any? (1+ / 0-)
          Recommended by:
          Smoh

          E.g., do you support ratification of the 28th, Equal Rights Amendment, per the Democratic party platform?

          Or clarification of the 14th, denying corporations legal personhood?

          Or an amendment clarifying campaign finance and the role of money in free speech?

          Or an amendment on privacy?

          Or on executive authority? Or matters of war? None? All? Others?

          Maybe some of these would come together in a cluster, during some critical-juncture in the coming decades?

          •  Is this reply in the right place? (2+ / 0-)
            Recommended by:
            Smoh, happymisanthropy

            My comment didn't weigh in, opinion-wise, on anything, so I'm not sure I understand the reference to a wish list or the questions about what I support that follow.  I was merely giving some historical context to the parent comment.

            Maybe the reply was intended for someone else?

            But my mind won't really be blown ... like the blow that will be mine when I get my sig line in a front page Cheers & Jeers post.

            by VetGrl on Sun Feb 23, 2014 at 10:00:14 AM PST

            [ Parent ]

            •  Yes, sorry if I wasn't clear. (1+ / 0-)
              Recommended by:
              Smoh

              (I'm a bit busy replying. Interesting discussions! :-) )

              I appreciate your info on the historical context, that's helpful.

              And I'm curious to hear your opinion (on 2A, and on various other proposed amendments, perhaps including though not limited to the ones I listed). Are there any amendments you'd be pleased to see ratified?

    •  The other half of Article V (1+ / 0-)
      Recommended by:
      Sharon Wraight

      allows for 2/3 of the states' legislatures to call a convention, which would propose an amendment or amendments. Such a call could be limited or open, depending upon the intent. Ratification is by the same 3/4 of states.

      This almost happened with direct election of senators, until Congress got embarrassed into proposing the amendment themselves.

      Government and laws are the agreement we all make to secure everyone's freedom.

      by Simplify on Sun Feb 23, 2014 at 10:22:50 AM PST

      [ Parent ]

      •  would be more likely to crack up the country (0+ / 0-)

        Blue vs. Red states seem to break down roughly 1/3rd to 2/3rds.  The red states call a constitutional convention and between a divided moderate right and a unified far right the convention produces a teabagging fundangelical constitution.  Regardless of how 3/4ths of 50 states vote, you've got yourself a full-blown constitutional crisis; someone's going to end up not just disappointed but living under a government and a system of laws that they view as fundamentally illegitimate.

        The country has lasted this long because rich people are generally on the same side regardless of any other differences between them.

        Domestic politics is the continuation of civil war by other means.

        by Visceral on Sun Feb 23, 2014 at 01:40:33 PM PST

        [ Parent ]

        •  No crisis, because such an amendment (1+ / 0-)
          Recommended by:
          Sharon Wraight

          wouldn't be ratified.

          Those who don't believe the government is legitimate would be the same ones who don't believe so today, convention or no convention.

          Guess we should just give up on ever trying to make things better, then!

          Government and laws are the agreement we all make to secure everyone's freedom.

          by Simplify on Sun Feb 23, 2014 at 03:54:59 PM PST

          [ Parent ]

    •  Presidency is irrelevant for amending constitution (2+ / 0-)
      Recommended by:
      VClib, Smoh

      He has no formal role in the process

      •  true, but a real president (2+ / 0-)
        Recommended by:
        Sharon Wraight, Old Sailor

        can be one hell of whip.  Ask LBJ.

        Dogs from the street can have all the desirable qualities that one could want from pet dogs. Most adopted stray dogs are usually humble and exceptionally faithful to their owners as if they are grateful for this kindness. -- H.M. Bhumibol Adulyadej

        by corvo on Sun Feb 23, 2014 at 06:22:35 PM PST

        [ Parent ]

  •  I'd like a new Constitution that, among other (8+ / 0-)

    important changes, simply does not mention firearms. The issue could then evolve from there, with none of the details exempt from being addressed.

    Even with some new left majority, it would surprise me greatly to see Heller reversed. Not impossible, but unlikely.

    There can be no protection locally if we're content to ignore the fact that there are no controls globally.

    by oldpotsmuggler on Sun Feb 23, 2014 at 06:53:37 AM PST

    •  I'd like that, too. (6+ / 0-)

      There's still be the usual protections of property rights, like for cars, toasters, swimming pools (!), ladders (!!), bicycles (!!!), etc. :-)

      With a 6-3 liberal SCOTUS majority, which is possible if Democrats keep the White House and Senate, I think a fundamental re-interpretation is definitely possible, but I agree it's far from a certainty. Especially so, if current events continue to shock the collective conscience. But my guess is it will take more time.

      •  Guns are property too (6+ / 0-)

        And should enjoy the same protection as cars, toasters, swimming pools, ladders, bicycles, and, especially, real estate.  The fifth amendment allows the federal government, and the 14th amendment allows state government, to take your property, provided it is for a public purpose, awarding the former property owner just compensation.  Privately owned guns, not being used in the military, National Guard, or police, should enjoy no additional protection.  This does not mean that the government should be seizing privately owned hunting rifles unless the specific rifle has been used in a crime, but if we could elect people to office with some basic common sense, this will never be an issue.

        "Corporations exist not for themselves, but for the people." Ida Tarbell 1908.

        by Navy Vet Terp on Sun Feb 23, 2014 at 08:01:38 AM PST

        [ Parent ]

    •  That's an interesting take. (10+ / 0-)

      I think I'd prefer a Constitutional right not to be shot, blown up, or otherwise seriously and permanently damaged with items designed to damage people.  Let case law pop a million dollar minimum fine on all such violations going from the perpetrator to the victim, and a minimum of 5 years in jail for any incident in which anyone shot anyone else, and 10 years minimum for each person shot or blown up.

      (Now obviously you'd have to tweak the language on this, I'm sure there are loopholes in the tiny bit of text I just wrote.)

      •  OK Mr bloody axe, we might (1+ / 0-)
        Recommended by:
        Sharon Wraight

        need an amendment just for your type.   :-)

        A true craftsman will meticulously construct the apparatus of his own demise.

        by onionjim on Sun Feb 23, 2014 at 08:25:54 AM PST

        [ Parent ]

      •  I would like to see the guns removed for sloppy (7+ / 0-)

        ownership. No jail time. The problem isn't the people it is the tolerance of people being sloppy with their guns.

        Of course when the result is damage then it is too late for my idea.

        But nipping their lack of respect for deadly weapons would get most of it before we read about what they did in the paper. Remember the Naval Yard Shooter was NOT arrested for shooting his gun while cleaning it. And the paperwork was lost when he shot his tires in a separate incident.

        Now they have the 2nd (safety net for sloppy) Amendment, and can't be infringed to actually treat their gun like a gun and not a video game controller.

        by 88kathy on Sun Feb 23, 2014 at 08:29:39 AM PST

        [ Parent ]

      •  good slogan, but constitutional rights generally (0+ / 0-)

        don't protect you from private behavior, just from the government.

        ...better the occasional faults of a government that lives in a spirit of charity, than the consistent omissions of a government frozen in the ice of its own indifference. -FDR, 1936

        by James Allen on Sun Feb 23, 2014 at 11:06:23 AM PST

        [ Parent ]

      •  I'm pretty sure you do have the right not to be (2+ / 0-)
        Recommended by:
        high uintas, sviscusi

        any of those things you listed.

        Whether or not you have the right not to be worried about those things is a different matter.

        While you dream of Utopia, we're here on Earth, getting things done.

        by GoGoGoEverton on Sun Feb 23, 2014 at 12:02:53 PM PST

        [ Parent ]

    •  Firearmes are not in the constitution (3+ / 0-)

      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.

    •  not mentioning firearms would be a terrible idea (1+ / 0-)
      Recommended by:
      oldpotsmuggler

      The Constitution doesn't mention privacy and you've seen what they've been able to do with that.  Sure, the government can't search or seize without a piece of paper that they give themselves saying they can, but those pieces of paper aren't exactly hard to get, and they even have 72 hours to get a piece of paper after they've already searched and seized.

      Laws are written with long-winded and hair-splitting language for a very good reason: i.e. to leave no ambiguity.  People being what we are, I think a constitution should be written the same way.

      Domestic politics is the continuation of civil war by other means.

      by Visceral on Sun Feb 23, 2014 at 01:45:00 PM PST

      [ Parent ]

  •  I thing that the 2nd should be repealed & voting (15+ / 0-)

    Should be an amendment.

    But that POS was written for & voted on by evil rich white men, the primary beneficiaries of same both yesterday & today.

    nosotros no somos estúpidos

    by a2nite on Sun Feb 23, 2014 at 06:54:27 AM PST

  •  Welcome to the police state (6+ / 0-)

    That'll be the day democracy dies in America, when only the politically connected military class is armed. Fascism 101, go read your history or be doomed to repeat it.

  •  Scalia's arguments would get recommends (13+ / 0-)

    here on Daily Kos from the ....
    He would fit right in with them .

    "please love deeply...openly and genuinely." A. M. H.

    by indycam on Sun Feb 23, 2014 at 06:59:38 AM PST

  •  The Bush Years strike again ... Jez, how long are (18+ / 0-)

    we going to have to pay the price for a stolen election in 2000? Looking back now with 20/20 hindsight on the long lines and hanging chads and confusing ballots in Florida that year, it's clear - that election was stolen.

    That's how Scalia's Heller fraud came about, and largely why RKBA has and continues to "liberalize".

    Look at the damage W did, 340+ federal judges appointed:

    http://en.wikipedia.org/...

    "Looking back over a lifetime, you see that love was the answer to everything." — Ray Bradbury

    by We Shall Overcome on Sun Feb 23, 2014 at 07:03:14 AM PST

    •  Not to Mention the Stolen Election of 1980 (13+ / 0-)

      accomplished by private negotiating with the enemy and the promise of arms for hostages.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

      by Gooserock on Sun Feb 23, 2014 at 07:20:07 AM PST

      [ Parent ]

      •  You mean orchestrating with Iran to make Carter (7+ / 0-)

        look bad?

        "Looking back over a lifetime, you see that love was the answer to everything." — Ray Bradbury

        by We Shall Overcome on Sun Feb 23, 2014 at 07:26:57 AM PST

        [ Parent ]

      •  a tradition of treason (4+ / 0-)

        starting with Nixon's minions sabotaging the Viet-Nam peace talks before his election

      •  That's re-writing history. (8+ / 0-)

        President Carter lost re-election because of economic and domestic issues.  I remember the energy crisis, long lines at the gas station, stagflation, the Misery Index.  Try being able to afford to buy a house with home mortgage loans at 15%.

        Now, I'm not saying all that was necessarily President Carter's fault; Presidents don't have all that much control over the economy.  But that's what defeated him.

        •  Its you who are re-writing history . (2+ / 0-)
          Recommended by:
          Old Sailor, Smoh

          And I think you do it with ill intent .

          "please love deeply...openly and genuinely." A. M. H.

          by indycam on Sun Feb 23, 2014 at 08:23:04 AM PST

          [ Parent ]

          •  President Carter was defeated (4+ / 0-)
            Recommended by:
            high uintas, andalusi, Smoh, nextstep

            because he was viewed by voters as an ineffective leader. He was an incumbent POTUS who won only six states and lost 51% to 41%. The 1980 Presidential election wasn't close, it was a rout.

            "let's talk about that"

            by VClib on Sun Feb 23, 2014 at 12:45:44 PM PST

            [ Parent ]

            •  And why was he seen as an ineffective leader ? (2+ / 0-)
              Recommended by:
              happymisanthropy, Johnny Q

              If the hostages were released under Carter , before the elections , the results would have been very different .
              I was watching at the time , were you ?

              "please love deeply...openly and genuinely." A. M. H.

              by indycam on Sun Feb 23, 2014 at 02:29:42 PM PST

              [ Parent ]

              •  I think you are not being realistic. (1+ / 0-)
                Recommended by:
                VClib

                If the hostages had been released one week before the election, I seriously doubt the election would have been any different.  

                That was such a landslide victory -- Carter only carried 6 states.  What basis do you have for believing that if the hostages had been released before the election, he would have won?  

                I was there, too.  President Carter -- whether it was his fault or not -- was pretty universally viewed as ineffective, as unable to deal with the energy crisis, the long lines at the gas station, the huge inflation at the same time as a dismal economy.   The hostages were only a part of that view of President Carter, but his problem with the hostages was sealed with the failed rescue attempt.  It may not have been his fault, but that was the perception. That failed operation, more than the delay in the hostage release, caused Carter's problems with respect to the hostages.  

                That failed operation happened in April, 1980 and gave Kennedy momentum so that he was a serious contender to defeat the incumbent President for the nomination of his own party.  President Carter is  the only incumbent President in my lifetime who was seriously at risk for not getting renominated by his own party.  That tells you something.  

                President Carter's strategy was to paint Reagan as so dangerous that he'd press the nuclear button in a second, so that people would think that, as bad as things were under President Carter, Reagan was too dangerous to take a chance on.  Reagan's performance in the debate ("there you go again") portrayed him -- again, whether fairly or not -- as not the dangerous old man that Carter wanted him to be perceived as.  If I remember correctly, it was that debate that really opened up the race into becoming a landslide victory for Reagan.  

                I know people would like to think that if only the hostages had been released before the election instead of inauguration day, if they had been released, say, on October 15, that landslide victory of 44 states for Reagan would have turned into a Carter win.  But I've seen no credible analysis of that election that supports that.  And it's certainly not how I remember things.  

              •  indycam - I sure was (0+ / 0-)

                I was working in the MSM at the time.

                "let's talk about that"

                by VClib on Sun Feb 23, 2014 at 05:30:34 PM PST

                [ Parent ]

      •  And the Stolen Debate Briefing Books (3+ / 0-)

        Ronald Reagan telling Carter "there you go again" was a scripted line derived from studying Carter's debate briefing books, knowing in advance it would be a theme in Carter's debate strategy. Books Republicans had stolen from the Carter campaign.

        Which is precisely what Nixon's crime in the Watergate was: robbing Democratic presidential campaign confidential materials.

        Since Nixon's 1968 election was rigged by assassinating Bobby Kennedy, Martin Luther King and Malcolm X (among others), the last legitimate Republican victory was Eisenhower 1956. And with Nixon on that ticket too, who knows what they actually pulled to steal that one, too.

        "When the going gets weird, the weird turn pro." - HST

        by DocGonzo on Sun Feb 23, 2014 at 08:32:10 AM PST

        [ Parent ]

  •  This statement (11+ / 0-)
    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... I could not possibly conclude that the Framers made such a choice.
    makes the most sense, to me.
    •  it's the dumbest thing I've ever heard. (0+ / 0-)

      "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 restrict dangerous cults... I could not possibly conclude that the Framers made such a choice."

      "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 quarter troops in private homes... I could not possibly conclude that the Framers made such a choice."

      "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 search suspects for incriminating evidence... I could not possibly conclude that the Framers made such a choice."

      "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 torture confessions out of terrorists... I could not possibly conclude that the Framers made such a choice."

      "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 invent kangaroo courts to legitimize illegal arrests... I could not possibly conclude that the Framers made such a choice."

      Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

      by happymisanthropy on Sun Feb 23, 2014 at 02:37:23 PM PST

      [ Parent ]

    •  I don't really care about the founders (3+ / 0-)
      Recommended by:
      Sharon Wraight, marina, Old Sailor

      They thought slavery was ok.  We changed that too.  The second amendment's day has come and gone.  Maybe it made sense then, but we are a radically different society now.  Whether they thought it was a good idea then, it is a terrible idea now

  •  Repeal the 2nd amendment (12+ / 0-)

    The "standing army" issue was settled with the Civil War. There is no need for a 2nd amendment anymore and it will be the instrument of our suicide, figuratively and literally, if not fixed.

    We were not ahead of our time, we led the way to our time.

    by i understand on Sun Feb 23, 2014 at 07:08:03 AM PST

  •  The 2nd Amendment was about slavery. (9+ / 0-)

    The slave holding states and large slave owners did not think the Federal government and its military would come to their aid should there be a slave uprising.  From 1700 to 1860 there were over 250 slave uprisings.  

    "The attack on the truth by war begins long before war starts and continues long after a war ends." -Julian Assange

    by Pierro Sraffa on Sun Feb 23, 2014 at 07:19:55 AM PST

    •  here's a few links on that debate (4+ / 0-)

      There was a short diary on this recently. I haven't yet read enough to have an informed opinion. http://www.dailykos.com/...

      This strikes me as a hotly debated topic, an interesting one worthy of further research. There's Thom Hartmann's TruthOut piece, written in the month after the Sandy Hook tragedy. There's a strident rebuttal, written by history professor Paul Finkelman, who imho rather churlishly and pedantically defends his hallowed academic turf and attacks Thom. Finkelman makes some good obvious points, and is a liberal on most issues (including his critique of Thomas Jefferson's hypocrisy in slave-holding), but I'm struck that he ignores some of the broader context -- e.g., he attacks Hartmann's focus on slave-patrols, while downplaying the importance of Southern's state militias in creating a standoff with Northern states over slavery.

      And even Finkelman clearly concludes:

      "I have long argued that the Second Amendment does not protect an individual's right to own firearms, and that the purpose of the amendment was purely to guarantee that the states could maintain their own militias. [...]  [T]he Second Amendment was directed solely at the federal government, which was prohibited from disarming state militias, and thus allowed the states to arm their militias if the federal government did not do so."
      So for those who use Finkelman to critique Hartmann's article, he still argues against Scalia's interpretation of 2A and supports Stevens.
    •  Also, the Constitution envisions the militia as (5+ / 0-)

      being part of the national army in an emergency. (This has morphed into the National Guard.)
         Recall the the Constitution forbade appropriations for an army that lasted more than two years.
         And President Adams, in a dispute with Alexander Hamilton, who commanded the US Army, simply dissolved the army and sent the troops home.

    •  Did the slaves have guns? (0+ / 0-)

      And how did they fare in those uprisings? Was slavery ended peacefully, politically as a result of protests?

      So you would like to continue to have the strong be armed and able to run roughshod over the weak?  Sounds like you were fine with the way things were. The slaves didn't have gun rights, only the military did (militia). And the militia treated the slaves with respect and kindness, yes?

  •  Other Constitutions (6+ / 0-)

    There are few constitutions that have a right to bear arms, and even the few that do severely restrict it. Mexico is probably the most friendly to it, but they say (from Wikipedia):

    Article 10. The inhabitants of the United Mexican States have the right to possess arms within their domicile, for their safety and legitimate defense, except those forbidden by Federal Law and those reserved for the exclusive use of the Army, Militia, Air Force and National Guard. Federal law shall provide in what cases, conditions, under what requirements and in which places inhabitants shall be authorized to bear arms."
    Most tellingly, the Iraqi constitution, essentially written by the US (under a hard-right administration) does not have a right to bear arms, so we obviously don't believe in it ourselves.  And if we are to go for a literal reading of the constitution as conservatives claim to want, we should only have the right to bear muskets.

    The 2nd amendment would seem to be a quaint one.

    •  Nor does the Japanese constitution (2+ / 0-)
      Recommended by:
      Sharon Wraight, roadbear

      Written after the war by General Douglas MacArthur's legal staff.

      "Corporations exist not for themselves, but for the people." Ida Tarbell 1908.

      by Navy Vet Terp on Sun Feb 23, 2014 at 08:12:31 AM PST

      [ Parent ]

    •  It is interesting to note the practical result (0+ / 0-)

      of the language allowing the Federal government to set the terms for exercising the "right to bear arms" provided by the Mexican constitution. There is one single gun store in the entire country. And getting a permit to exercise that "right" is virtually impossible. So only the wealthy can own a legal gun.

      It is also interesting to note the actual effect of what amounts to a virtual ban on private ownership of weapons, a ban many in the U.S. think would naturally lead to lowered rates of gun violence, with little evidence to support that belief. Sure has worked in Mexico, don't you think?

      •  Mexico and US have similar firearm death rates (2+ / 0-)
        Recommended by:
        Sharon Wraight, FogCityJohn

        Sure has worked in the US, don't you think?

        Nearly half of US firearm dealers are economically dependent on demand from Mexico. So we supply the illegal guns, and you point at them and say "see, they all have illegal guns". Neat trick.

        We were not ahead of our time, we led the way to our time.

        by i understand on Sun Feb 23, 2014 at 09:13:58 AM PST

        [ Parent ]

        •  Mexico has 10 homicides per hundred thousand, (1+ / 0-)
          Recommended by:
          high uintas

          the U.S. has 3.6 per hundred thousand.

          And they have higher accidental and undetermined firearms death rates. I don't think our extremely high suicide rate, which brings the total close to but still well below Mexico, can be blamed on our gun laws.

          •  Actually, to an extent, it can. (2+ / 0-)
            Recommended by:
            Sharon Wraight, Joy of Fishes

            Guns make it a damn sight easier for people to die. I've been suicidal. If I'd had a gun at the time, I would probably be dead by now.

            When the scribbling devil is got into a man's head, he falls to writing and publishing, which gets him as much fame as money, and as much money as fame. ~ Cervantes

            by scribblingTiresias on Sun Feb 23, 2014 at 10:21:10 AM PST

            [ Parent ]

          •  i didn't say homocides (1+ / 0-)
            Recommended by:
            Sharon Wraight

            But i understand your need to cherrypick your statistics to fit your irrational ideology.

            We were not ahead of our time, we led the way to our time.

            by i understand on Sun Feb 23, 2014 at 11:16:08 AM PST

            [ Parent ]

            •  why does anything but homicide matter? Do you (7+ / 0-)

              think you have the right to stop another adult from taking their own life if they choose?

              That falls into the right of privacy and no you do not have the right to tell me if I can die or not if I choose to....

              Thus firearm deaths are completely irrelevant to any public policy, only homicide is anyone else's business...

              Vaya con Dios Don Alejo
              I want to die a slave to principles. Not to men.
              Emiliano Zapata

              by buddabelly on Sun Feb 23, 2014 at 11:28:58 AM PST

              [ Parent ]

              •  How very Libertarian of you. (3+ / 0-)

                Let me know when more then 1 person agrees we should hand out glocks to treat depression and teenage anxiety.

                We were not ahead of our time, we led the way to our time.

                by i understand on Sun Feb 23, 2014 at 12:28:47 PM PST

                [ Parent ]

                •  How very authoritarian of you. (5+ / 0-)

                  Funny how you are the only one mentioning handing out guns (are Glocks your fav?) for depression.

                  Suicide is mostly horrific but sometimes isn't and I think most of us understand that.

                  I don't believe that anyone has the right to determine what I do with my body as long as it ends with me. I feel the same about you. Does that make me a libertarian? If so can we talk about reproductive health?

                  There are times when people want to chose how they go out, I wish we could get over our squeamishness about death and allow physician assisted suicide. IMO, the numbers of those gun deaths would fall dramatically.

                  As for guns being so convenient when it comes to suicide, so is tylenol. My medicine cabinet is full of ways to go out.

                  And daddy won't you take me back to Muhlenberg County Down by the Green River where Paradise lay. Well, I'm sorry my son, but you're too late in asking Mister Peabody's coal train has hauled it away. John Prine

                  by high uintas on Sun Feb 23, 2014 at 01:38:42 PM PST

                  [ Parent ]

                  •  Its not authoritarian to care for the mentally ill (0+ / 0-)

                    But I get how twisting that point fits your ideology.

                    I agree with your position on physician assisted suicide and think we need to change our culture with respect to how we treat end of life care. Of course, that's a completely different topic only brought up here by you to fog the actual topic of gun violence.

                    We were not ahead of our time, we led the way to our time.

                    by i understand on Sun Feb 23, 2014 at 02:33:42 PM PST

                    [ Parent ]

              •  "Ask not for whom the bell tolls..." (6+ / 0-)
                why does anything but homicide matter?
                Because we are all humans.
                Do you think you have the right to stop another adult from taking their own life if they choose?
                Yes. In maybe 99% of cases (i.e. outside of extreme incurable pain, perhaps as verified by two doctors as in most death-with-dignity laws), then yes, not only the right but the obligation. Most suicides are arguably the result of poor judgment, not seeing other options, clouded thinking, etc. As good samaritans, some might even say we have a duty to rescue.

                We are not libertarians. We care about other people. We are Democrats.

                •  As I said in another diary (4+ / 0-)
                  Recommended by:
                  43north, sviscusi, Kasoru, ypochris

                  I'm a pro-choice Democrat. I don't know what kind you are.

                  And daddy won't you take me back to Muhlenberg County Down by the Green River where Paradise lay. Well, I'm sorry my son, but you're too late in asking Mister Peabody's coal train has hauled it away. John Prine

                  by high uintas on Sun Feb 23, 2014 at 01:39:44 PM PST

                  [ Parent ]

                •  and every now and then Sharon (3+ / 0-)

                  our "know it all" attitude demonstrates we know nothing at all, and we "take precautions" based on a few mechanical steps.  Far far less messy than really interrupting our important lives and wading into mental instability.

                  I see the big picture, this isn't that bad.  Your doctor doesn't think so.  Try the new medications. "You know, you just need to..."
                  I was the first, first responder through the door when a teen son of a friend shot himself with dad's handgun, obtained from the locked safe the day before.
                  "Mom... I'll move the car for you."

                  One of two keys was on her keyring.  She never noticed it was missing, until we asked about it.

                  There was no .38 special ammunition in the house.
                  He obtained the ammunition from the son of a retired cop, who thought it was "so cool" that he was going to kill himself over a now former girlfriend.

                  She'll be like, so fucked-up by this.

                  The young man had spoken to his parents.  Spoken to his guidance counsellor after having a yelling match with the girl and her new more awesome than you boyfriend.

                  "You're young, there's other girls.  You'll be fine.  We see this as a whole picture, you're too close, it's too new... give it a couple of months."
                  When another day, just one more day, of being taunted?
                  Was too much.
                  * bang *
                  .38 special round nose lead to the right temple.
                  Dead before he hit the floor.

                  Locked-up gun.  Mom and Dad never leave the keys in a drawer, or "hidden" in the jewelry box.

                  NO ammunition in the house.  Buy it at the range, leave it at the range.  
                  "No chance for accidents, what with the children in the house."

                  No real cause for concern.

                  Same for the girl, who when 9 weeks pregnant by her now former more awesome than you boyfriend, caught the 8:10 from Grand Central.
                  In the face.  
                  Tough to know if it was the crushing injuries, or the 700 volts which killed her first.

                  I know the hell out of suicide.  Those are just two.

                  •  buddabelly thinks that's none of your business. (4+ / 0-)

                    I don't agree. I think it's everyone's business.

                    We were not ahead of our time, we led the way to our time.

                    by i understand on Sun Feb 23, 2014 at 02:46:11 PM PST

                    [ Parent ]

                    •  Is it your business if I stop dialysis (4+ / 0-)

                      and kill myself slowly? What if I use a rope? Is it your business only if I use a gun? Any 3 ways, I am still dead and there is mental anguish to go around.

                      It's not really about mental illness is it? Or there would be laws preventing me from going off dialysis or you could be a rethuglian (see Texan and FL).

                      •  Are you mentally ill? (2+ / 2-)
                        Recommended by:
                        Sharon Wraight, Old Sailor
                        Hidden by:
                        43north, cville townie

                        I'm only asking because you're asking my opinion of your case.

                        We were not ahead of our time, we led the way to our time.

                        by i understand on Sun Feb 23, 2014 at 04:28:43 PM PST

                        [ Parent ]

                        •  What does it matter if I am or not? (4+ / 0-)

                          And I'm not.

                          But if I get told that I wont ever get a kidney and I will be forever on dialysis- then I may make a choice to not live that way. Dialysis SUCKS!! What business of yours is it how I end it??

                          Considering that many of our peer nations that we as progressives look SOOOO much up to consider suicide a human right. Even for children in the case of Belgium.

                          So do I have the right to choose? Or do I belong to the state and don't get to make the choice? Tell me.

                          •  Oh, I see, you were making all of that up (3+ / 0-)
                            Recommended by:
                            Old Sailor, Glen The Plumber, tytalus

                            Anything to avoid talking about gun violence eh?

                            We were not ahead of our time, we led the way to our time.

                            by i understand on Sun Feb 23, 2014 at 05:05:30 PM PST

                            [ Parent ]

                          •  I have made extensive comments (4+ / 0-)

                            about my kidney disease. And you have the balls to say that I'm making it all up? Oh how I could wish I could HR you for such a dickish comment. But I expect that from Authoritians- Attack the commenter,

                            Afraid that your authoritian side will show?

                          •  You're confusing the heck out of me. (3+ / 0-)

                            First you talk about your case and I ask a question. Then you say it isn't true but if it was true what business would it be of mine. Now you're saying it's true again and start calling me names.

                            I have no idea who you are and have never read any posts from you other then these. So, I hope the best for you regardless.

                            If you have something to say about end of life care, maybe you should write a diary on it. I'd be happy to comment there.

                            We were not ahead of our time, we led the way to our time.

                            by i understand on Sun Feb 23, 2014 at 05:58:22 PM PST

                            [ Parent ]

                          •  You had asked if I was mentally ill (3+ / 0-)
                            Recommended by:
                            43north, Joy of Fishes, FrankRose

                            and I stated it did not matter. So back to the question..

                            If I am told I will not get a transplant, I may very well choose to end life. Either by stopping dialysis, gun or some other manner. What business is it of your how I do it? Or are you only concerned if I use a gun?

                          •  To be clear.... (3+ / 0-)

                            As I understand you now, you are not facing that question. But you might given your current condition. Got it.

                            I hope you don't face that question, and I hope you consult with health care professionals when going through the process if you do. My opinion is that end of life care and decisions need to be addressed in the United States to shift from lengthening life at any cost (in dollars or quality) to focus on quality and the sound wishes of the patient.

                            So everyone, not just you, should make their wishes known through an Advance Health Care Directive while they are legally able.

                            None of this has anything to do with the topic at hand, and my advice is the same as I posted above... if this is a topic that moves you then write a diary and start a discussion on it. This thread is about returning to a rational basis for dealing with gun violence since the flawed Heller decision.

                            We were not ahead of our time, we led the way to our time.

                            by i understand on Sun Feb 23, 2014 at 06:25:50 PM PST

                            [ Parent ]

                          •   i u., you are mistaken about Kasoru. /nt (2+ / 0-)
                            Recommended by:
                            Kasoru, 43north
                          •  I have no ideas about Kasoru (2+ / 0-)
                            Recommended by:
                            Sharon Wraight, Old Sailor

                            I'm only responding to these posts directed at me.

                            We were not ahead of our time, we led the way to our time.

                            by i understand on Sun Feb 23, 2014 at 05:59:20 PM PST

                            [ Parent ]

                        •  No, you asked as you were being a dick. (2+ / 0-)
                          Recommended by:
                          FrankRose, Kasoru

                          Just sayin'.

                          Your directed response:  i understand.

                          •  No, I asked because it has a bearing on the answer (3+ / 0-)

                            All of my posts in response to questions about whether suicide should be legal start with whether a person is of sound mind. I was asked my opinion on a specific case, and so that is the first question that has to be asked.

                            Your hide rate is without merit.

                            We were not ahead of our time, we led the way to our time.

                            by i understand on Sun Feb 23, 2014 at 07:38:30 PM PST

                            [ Parent ]

                          •  43N.. (1+ / 0-)
                            Recommended by:
                            43north

                            I don't think he was asking about the mental ill to be a dick.. think he was confused about my comments.. as evidenced at his continued dodging of pointed direct questions.=.. but he is RASA so who knows?

                          •  So... (3+ / 0-)
                            but he is RASA so who knows
                            This is NOT being a dick?

                            What say you 43north since you're quick with the judgment calls on this...

                            We were not ahead of our time, we led the way to our time.

                            by i understand on Sun Feb 23, 2014 at 07:45:47 PM PST

                            [ Parent ]

                          •  "Are you mentally ill" (1+ / 0-)
                            Recommended by:
                            Kasoru

                            has a history of hide-rating on this website.

                            When asked about your mental status, regarding a choice of suicide vs any other choice?

                            The body of clinical work sides with "mentally ill" always.
                            It's what makes physician-assisted so toxic to the rest of the medical community.

                            "You can't say he's in his right mind."
                            "We can't play GOD now can we?"
                            "Who are you to say it's hopeless?"
                            Preconception of mental illness.
                            Suicide vs. us meddling with your body and mind is always a bad answer.  
                            At the least, we could make a case-study of you.  
                            At the best, we can collect a few hundred thousand dollars more of insurance pay-outs.

                            Doctors, always play god, it's in the job description.  
                            Cancer?  We can cut that out.
                            It wasn't an accident, wasn't something you picked-up on that non-immunized trip to the Third World, so it's "god-given".
                            Meddling with that, is making you - the doctor - god.
                            Assuming there is a god, other than my cat.

                            As to when to throw in the towel?  I DO think the patient has the final say.  
                            However, the first step to prevent this, is for the Attending Physician to claim mental incapacity, and have either a gullible relative or court-appointed conservator take over medical decision making.
                            "I want to die.  I want all extraordinary measures stopped.  Enough."

                            Your dad isn't in his right mind.  There's a cure right around the corner.  Five or Fifteen years from now, the FDA will release a new protocol, and we'll see no more of this kind of illness.  YOU need to sign these forms, and have the court appoint you medical guardian.
                            So, I'm certainly dead-set against this "are you mentally ill" discussion, as it masks a presumption.

                            As to the RASA comment?  "Repeatedly dodging pointed questions" seems to be the standard used.

                            If you're answering pointed questions, there must be no harm, no foul.  
                            If you're not answering, as it's not fitting with your agenda???

                          •  So what. (0+ / 0-)

                            Being "dead set against" a discussion does not justify a hide-rate. And that's not what you said justified it in the first place.

                            And yet you continue to follow a double standard, hide-rating my post even after it was explained to you not just by me, but by Kasoru himself and not hide-rating his dickish comment.

                            Whatever.

                            We were not ahead of our time, we led the way to our time.

                            by i understand on Mon Feb 24, 2014 at 07:27:40 AM PST

                            [ Parent ]

                    •  I know buddabelly, and I know you're full of shit. (3+ / 0-)
                      Recommended by:
                      Joy of Fishes, FrankRose, Kasoru

                      That's my field experience, State-certified, National-registry, 20+ years in the field, Instructor-Trainer opinion.

                      Your directed response:  i understand.

                      Come back to me when you can count-off the number if teeth in a body bag zipper by memory, as you can no longer look at the contents.
                      You know her by name.
                      You were at her third birthday.
                      You took her swimming at the ocean.
                      You were invited to her dance recital.
                      You broke the news to her parents.
                      You carried her coffin, and lowered her into the ground.
                      You did the same for the former boyfriend.

                      Then tell me what I should know.

                      •  I agreed it's a public policy issue (2+ / 0-)
                        Recommended by:
                        Sharon Wraight, Old Sailor

                        He thinks it's a totally private matter. Seems to me you have a beef with him, not me.

                        Unless, of course, you're both full of shit and are just saying anything you can to support your gun fetish?

                        Oh, and saying someone is full of shit seems pretty dickish to me... but with this as your motto:

                        Moderate or extreme or somewhere in between, we hold one common belief: more gun control equals lost elections. We don't want a repeat of 1994. We are an inclusive group: if you see the Second Amendment as safeguarding our right to keep and bear arms individually, then come join us in our conversation. If you are against the right to keep and bear arms, come join our conversation. We look forward to seeing you, as long as you engage in a civil discussion.
                        You must have grown immune to hypocrisy from the constant exposure.

                        We were not ahead of our time, we led the way to our time.

                        by i understand on Sun Feb 23, 2014 at 07:55:58 PM PST

                        [ Parent ]

                  •  It sounds like a very emotionally fraught time for (0+ / 0-)

                    you, as it would be for anyone. I hope you're able to move on, drawing appropriate lessons from it (and avoiding the wrong 'lessons'), and healing as best one can. Best wishes!

              •  Good Lord! (2+ / 0-)
                Recommended by:
                i understand, Sharon Wraight
                Thus firearm deaths are completely irrelevant to any public policy, only homicide is anyone else's business...
              •  buddabelly, how to say this. (1+ / 0-)
                Recommended by:
                Sharon Wraight

                I support the right to suicide.  Hell, I want to have this right for myself.  I also support intervention and treatment to help people get through what might very well be a temporary problem, and this includes removing guns from the person's environment.  

                The key is compassion and caring for our fellow human beings.

                Tipped, even tho I disagree with you, because I think it is important to respectfully talk and listen, especially when discussing such painful things.

              •  That's Some Choice Bullshit (4+ / 0-)

                Suicide is NOT some victimless "right of privacy" thing.  Any friend or family member that has had to deal with the aftermath of a successful one can tell you that is just puerile, libertarian nonsense.  

                Even in those (rare) cases where it IS a rational, fully informed decision instead of a consequence of depression or other mental health issues - even in those cases there are victims and ruined lives left in the wake.

                And, frankly, even when it IS a fully informed rational decision only a thoughtless, selfish prick would prefer to leave behind the bloody violent mess of a gunshot suicide for someone else to find instead of, say, a sleeping pill overdose or something.

                There is simply no reasonable way to argue that firearm suicides are irrelevant to public policy.  To do so is to spout unrepentant bullshit.

                •  Bravo, chaboard and others (0+ / 0-)

                  What's disconcerting is that to dismiss any suicide is heartless. To excuse the means of 17,000 consistent suicides per years shows a disconnect.

                  It's apparently de-sensitisation X 17,000 X the number of conscious years in a person's lifetime, X thousands of gun lovers. Yechh.

                  _______________________________________________________________________________________ It seems to me that we humans take turns being dummies.

                  by reasonablegunsplz on Mon Feb 24, 2014 at 10:33:07 AM PST

                  [ Parent ]

  •  I would be curious to see what Stevens' (6+ / 0-)

    take on the first amendment in terms of religious freedom would be.  I think the founders goofed on that one and should have made it much tighter to keep the wall of separation intact.  The fact that Madison wrote about how chaplains in congress are a big violation and that this opinion from the man who authored the language of that amendment in the Bill of Rights writing was totally ignored in March v. Chambers, demonstrates that the founders trusted religious institutions (against their own private misgivings) too much.

    •  Got a link to the Madison quote? (1+ / 0-)
      Recommended by:
      Sharon Wraight

      "Labor was the first price, the original purchase - money that was paid for all things" -- Adam Smith

      by HugoDog on Sun Feb 23, 2014 at 08:11:26 AM PST

      [ Parent ]

      •  It's in his Essays on Monopolies... (3+ / 0-)
        Recommended by:
        Sharon Wraight, roadbear, HugoDog

        "Is the appointment of chaplains to the two houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In strictness the answer on both points must be in the negative."...."the establishment of the chaplainship to Congress is a palpable (easily noticeable) violation of equal rights, as well as of constitutional principles."

        The total title of this essay is, Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments.  It wasn't found and published until 1914.  Plenty of time though for the judges in the Marsh case to read it.

        I would highly recommend reading the whole thing. Madison worries greatly about religious insitutions gaining power and land.

  •  Scalia's words as quoted (5+ / 0-)

    make him come over as amazingly charmless and hostile.... what a super colleague to have had!  Well done Stevens for not strangling him on a weekly basis.  

    When does he retire?

  •  Spell out what a militia is. (2+ / 0-)
    Recommended by:
    Sharon Wraight, Joy of Fishes

    Actually, just repeal. In modern society, you should have as much right to a gun as you do to an Xbox system.

    Thanks for the diary!

    Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting. Ron Paul thinks he's a wit, but he's only half right.

    by Tortmaster on Sun Feb 23, 2014 at 07:27:21 AM PST

    •  IMHO, less. (4+ / 0-)

      I think you should have a demonstrable need to keep one in your home, and a demonstrated ability to use. You have to have a special licence to drive a semi,  why not a semi-automatic rifle. If you only want it for hunting, why not keep it locked up at the police, and pick it up just before your weekend of fun in the woods?

      Either than, or charge $10,000 per bullet.

      "Labor was the first price, the original purchase - money that was paid for all things" -- Adam Smith

      by HugoDog on Sun Feb 23, 2014 at 08:19:15 AM PST

      [ Parent ]

      •  Haha! I didn't state my position ... (3+ / 0-)

        ... very clearly, HugoDog! I mean there should be no special right to own a gun, and there should be every reasonable limit on restricting them (i.e. the whole panoply that includes strict background checks, no open or concealed carry because it is crazy as we're not Dodge City, closing the gun show loophole, magazine restrictions, registration, and on and on). I agree with all your restrictions.

        I will try to be more clear in the future. I'm sorry.

        Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting. Ron Paul thinks he's a wit, but he's only half right.

        by Tortmaster on Sun Feb 23, 2014 at 10:58:10 AM PST

        [ Parent ]

    •  In modern society you should lose you gun if you (4+ / 0-)

      demonstrate sloppy storage and handling.

      However losing your deadly video game controller in the couch cushions can be overlooked.

      Now they have the 2nd (safety net for sloppy) Amendment, and can't be infringed to actually treat their gun like a gun and not a video game controller.

      by 88kathy on Sun Feb 23, 2014 at 10:28:16 AM PST

      [ Parent ]

  •  Democrats don't want the fight (4+ / 0-)
    Recommended by:
    ozsea1, Sharon Wraight, MrJersey, Simplify

    Beltway Democrats won't expend political capital on constitutional issues. It would mean embracing and defending ideas and principles with which the majority of elites disagree.There's also little political incentive for them to venture too far away from the status quo as long as their supporters continue to give them a free pass.

    •  I agree. I still like to hold their feet to the (3+ / 0-)
      Recommended by:
      White Buffalo, ypochris, roadbear

      democratic fire. :-)  And in the long run (40-200 years), more change can occur than would seem possible, now -- albeit not always in the way we like it! (I can see things getting far worse than now, with organized violence on a scale we haven't imagined possible. I can also see things getting much better. I don't think either outcome is yet determined.)

  •  Thanks for the diary and information (4+ / 0-)

    I'm a big admirer of Justice Stevens and I'm glad to hear that he is remaining active in his mid-90s.

    One minor correction.  Justice Stevens is actually the third longest serving justice (he was the second oldest at retirement).  He served three days less than the second longest server, 19th century justice Stephen Field.  The difference between the two men's attitude toward their place in the record books is striking.  Field remained in office beyond the point when he was capable of serving in order to pass John Marshall and become (at that time) the longest serving justice.

    Stevens could have easily set his retirement for a day when he would have passed Field's tenure without having a substantial effect on anything (the court was not in session during that period and a search was already underway for his replacement) but he obviously couldn't care less about this particular record.  A classy individual.

    "To see both sides of a quarrel, is to judge without hate or alarm" - Richard Thompson

    by matching mole on Sun Feb 23, 2014 at 08:08:02 AM PST

  •  Utterly Foolish (1+ / 0-)
    Recommended by:
    Kickemout

    His comments are on a par with Pacific natives in a cargo cult - it should be a national disgrace that he says such things. Why?

    Trying to take away guns amidst growing nullification and serious secession talk is insanity.  Is it wise to legally push citizens into being felons and encourage moves towards defacto civil war because they have a nearly religious devotion to guns?  OR IS THAT THE WHOLE POINT because the Elite realize Big Trouble Is Coming?

    How can any rational person swallow all this endless news about our rights-abusive government and THEN CONCLUDE, 'Yes, please take away our guns"?  Did "assault rifles" drive the US out of Vietnam? Iraq? and now, Afghanistan?

    Give us honest, caring, transparent government AND THEN talk about guns - and NOT before.

    •  You want to throw around emotional language? (3+ / 0-)

      What's a disgrace is you marching around this comment thread acting like you understand a single thing about the Vietnam War.  AK-47 cost us the war? You should be embarrassed.  I could go through a litany of things that cost us the Vietnam War that would go WELL before the AK-47...Chinese support of the North, Ho Chi Minh Trail supply lines through other sovereign nations, corrupt South Vietnam regime, ridiculous 'body bag' metric, rising disillusionment at home....the list goes on.

      And if, and this is a BIG IF, we were to attribute the success of the Iraq and Afghanistan insurgency to a single weapon, the IED was and is vastly more valuable to the insurgency than a damn AK-47.  But even that's a foolish, short-sighted way to look at the insurgency.

      Eeeya, what argle bargle.

    •  Eighthman is a troll, don't feed him. (3+ / 0-)
      Recommended by:
      i understand, liberalguy, AnnieR

      He joined six weeks ago, has 11 comments, all trollish. E.g.:

      "Liberals-a waste of time
      Excuse me but I was leaning towards liberals for the first time in my life -because of the economy and Republican intransigence.
      Unfortunately, I happen to notice that liberals are blind, insane warmongers who want to obey foreign governments with zeal.  I live in NY.
      Show me how I'm wrong." http://www.dailykos.com/...
      "I live in NY and both (liberal) Senators are on board for this insanity. I have never been more ashamed of this countries government than now." http://www.dailykos.com/...
      "Look, take off the ideological blinders and realize that there are millions of Americans like me being 'awakened" to the horror the Federal government has created."  http://www.dailykos.com/...
      "Oh, GOP Warmongers?  Let's Name those Democrats who owe their loyalty to foreign governments: Schumer, Gillibrand, Menendez.
      And if are disgusted with Obama being a Corporate Sock-Puppet, wait until the elite coronate Hillary." http://www.dailykos.com/...  
      "Could anyone point out Hillary's Achievements?
      Yes, I know she has held a lot of jobs - and the Republicans are and will be pathetic. And Bill is a superb politician.
      But what achievements of note has Hillary accomplished in the positions she has held? She was one of my Senators and I could never get a straight answer about what she did in that office. Or any other." http://www.dailykos.com/...
      Etc.

      Eighthman: DailyKos' mission is to elect more and better Democrats. Are you with us? Who specifically are you trying to elect (name them), and how?

  •  Any info on the other 5 amendments? (2+ / 0-)
    Recommended by:
    Sharon Wraight, happymisanthropy

    KOS: "Mocking partisans focusing on elections? Even less reason to be on Daily Kos."

    by fcvaguy on Sun Feb 23, 2014 at 08:13:41 AM PST

  •  The Common Law Right to Self Defense (0+ / 0-)

    The right in question is the right to self defense.

    Not some right to keep and bear arms, any more than there's a right to keep and bear vehicles - that right is to freely travel.

    Any more than there's a right a printing press - that right is to publish our free expression.

    And even when our actual rights might protect our implementation of them with this or that technology or property, it's limited. Some printing presses or their modern digital versions are protected from government intrusion more than are others: eg. when they are journalistic "presses", not when they're public relations "presses" or private newsletters. All vehicles are restricted when operating on public property (eg. roads), requiring insurance, state registration, state inspection - and Federal emissions, safety and other regulation even when operated on private property.

    We decide the tolerated infringement on owning or operating publishing systems and vehicles by balancing the actual rights of publishing and travel against the specific benefit of the infringement. Not on the artifacts of the specific implentation of the exercise of that right.

    So while I agree that Stevens' proposed revision of the 2nd Amendment is the harder to mistake version of the original, it is not nearly enough. While Americans have gained unsustainable privileges to weapons more dangerous than beneficial, we have also lost protections against self defense. Cops can taser people not even suspected of crimes, especially when part of a political demonstration (peaceable assembly, petitioning the government for redress of grievances). Police bullying is only one of the many officially protected bullying institutions people attempt to defend ourselves from in vain, against government (eg. school authorities) power.

    Repeal the 2nd Amendment and replace it with instructions that the government protect our actual right: self defense.

    A well trained and properly supplied Militia, being necessary to the security of a free State, the right of the people to self defense shall not be infringed without due process of law.

    That covers both the National Guard or whatever proper militia people set up within laws adequately regulating weapons, and people resisting police abuse without always being guilty of "resisting arrest". And punching the bully back in the face without the bully's supporters in the school (or in Trayvon Martin's neighborhood police) violating the right to do so.

    "When the going gets weird, the weird turn pro." - HST

    by DocGonzo on Sun Feb 23, 2014 at 08:17:15 AM PST

  •  The 2nd Amendment was to preserve slavery (7+ / 0-)

    The actual historical record on this is quite clear. The South wanted armed militias to put down their greatest (indeed panicky) fear - slave uprisings.

    http://truth-out.org/...

    It's was adopted to get Madison the 9 votes he needed (I think #9 turned out to be Virginia) for the adoption of the Constitution.

    It's purpose was to codify the right of the Southern states to maintain armed militias to put down slave rebellions. This, of course, is not mentioned in any of the Supreme Court decisions. Instead, the myth of squirrel hunting New Englanders in tricorn hats and a hardy (armed) yeomanry is continued.

    The whole history is here:

    THE HIDDEN HISTORY OF THE SECOND AMENDMENT
    University of California at Davis Law Review
    http://www.saf.org/...

    Oh, and Scalia is a dick. Of the Chris Christie variety. There's something definitely wrong with these people as human beings.

  •   An amendment recognizing that environmental (1+ / 0-)
    Recommended by:
    Sharon Wraight

    protection is part of the people's duty, which strictly limits the ability of companies to socialize the losses and privatize the gains, and bans corporations who consistently have big spills from doing any business in this country, should be added. . so companies like BP and shell would no longer be permitted to do business here, given thier records.

  •  Scalia's excoriation of Stevens' and Breyer's... (6+ / 0-)

    ... dissenting views in Heller is proof positive of J. Scalia's strident irrationalism and disrespect for his colleagues. If Scalia were less of an intellectual bully - exactly the right term for him and his intemperate attitude toward people who disagree with him - he'd be more influential and much more respected, not to mention being persuasive.

    Scalia tarnishes his own legacy, whereas J. Stevens burnishes his.

    I can hardly wait for his new book.

    2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

    by TRPChicago on Sun Feb 23, 2014 at 08:25:29 AM PST

  •  An amendment will probably take longer than (7+ / 0-)

    waiting for the current SCOTUS to "turn over". I could live with a reversal of Heller. Let the states regulate ownership of guns and let the feds regulate interstate commerce in guns.

    The NRA is the biggest political obstacle today, and they have only one motive: to sell more guns and sell more ammo.

    I suspect that most of their traction with the public comes from racial anxiety. You don't need semi-auto firepower and extra magazines to repel a burglar. You do if you harbor fantasies about fighting a small infantry engagement with an armed gang of inner-city rioters at your door.

    The folks who "lost" the civil rights battles of the 60's are starting to die off. They have passed their fear on to some of their children, but that too will pass in time.

    If feels like we're getting close to a demographic tipping point. The national mood on guns could change as quickly as it did on smoking and drunk driving. A national "Mothers Against Gun Violence" campaign could make a big difference.

    “It is useless to attempt to reason a man out of a thing
    he was never reasoned into” - Jonathan Swift

    by jjohnjj on Sun Feb 23, 2014 at 08:30:32 AM PST

    •  I could live with that, too. And I agree! (2+ / 0-)
      Recommended by:
      i understand, Joy of Fishes

      Excellent insights, thank you.

      I could live with a reversal of Heller. Let the states regulate ownership of guns and let the feds regulate interstate commerce in guns.
      A states-rights approach would be a wedge among some Southern conservatives, and might help pass an Amendment or a re-interpretation/reversal of Heller. ("... shall not be infringed by the Federal Government.") Gov. Howard Dean was endorsed by the NRA 10 times, and he favored a states-rights approach: "a deer rifle in Wyoming is not the same thing as a Glock pistol in Chicago."

      Excellent points about how the national mood can change (smoking, drunk-driving, littering, single-parenthood, etc.).

      I've wondered about a "Mothers Against Gun Violence" campaign, as well.

      Thanks again!

  •  My understanding (as a non-lawyer) (4+ / 0-)

    is that the 2nd amendment was devised with three purposes:

    1.  The framers wanted a citizen's militia so that the government need not rely on standing armies.  The Rise and Fall of the Roman Empire was fresh in their minds.

    2.  Those in the Southern States lived in perpetual fear of slave revolts, and required a means to subdue their uppity property.  

    3.  Frontiersman required weapons to exterminate Native Americans.

    Perhaps there was a fourth:  citizens needed weapons to shoot each other.  It seems unlikely since nothing in the amendment, or in the writings of the framers, mentions that right at all.

    All three of the original reason for the 2nd amendment are obsolete.  The US has a standing army, there are no more slaves, and the Natives have been virtually exterminated.  

     

    "When I was an alien, cultures weren't opinions" ~ Kurt Cobain, Territorial Pissings

    by Subterranean on Sun Feb 23, 2014 at 09:10:20 AM PST

    •  The big one was oppressive government. (0+ / 0-)

      They had just fought the best army in the world for their independence.  Like the other amendments this was a bulwark against tyranny.  The slave-related arguments don't hold a lot of water it seems.

    •  Not obsolete. (0+ / 0-)
      1.  The framers wanted a citizen's militia so that the government need not rely on standing armies.  The Rise and Fall of the Roman Empire was fresh in their minds.
      The fact that their successors forsook their wisdom and allowed a permanent war establishment to exist does not render obsolete the option of correcting that error.

      Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

      by happymisanthropy on Sun Feb 23, 2014 at 03:37:27 PM PST

      [ Parent ]

  •  Bless you for this diary! (4+ / 0-)

    Cats are better than therapy, and I'm a therapist.

    by Smoh on Sun Feb 23, 2014 at 10:15:03 AM PST

  •  Until such time that the 2nd amendment (3+ / 0-)

    could actually be repealed or modified, how about this:
    Make every gun owner responsible for whatever damage comes out of the point end of his/her weapon, no matter in whose hand it was held.  That would mean registering all guns, but nothing in the 2nd amendment says we can't register arms.  People might be more careful with their guns, or even decide it is not worth owning one, if they might be fined or sent to jail for the murder and maiming that came out of their gun.  Yes, I would apply the rule even if the gun was stolen.

    I was wise enough to never grow up while fooling most people into believing I had. - Margaret Mead

    by fayea on Sun Feb 23, 2014 at 10:40:52 AM PST

  •  How Stevens could have ever been a Supreme (3+ / 0-)

    Court justice and written this with a straight face is beyond me:

    [For 200 years], federal judges uniformly understood that the right protected by the [2nd Amendment] text was limited in two ways: first, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.
    You may disagree with the result in Heller, but the history set forth in that decision is not open to debate.  Stevens is just wrong.  He ignores history in order to support the result  he desired and was denied.  

    Last, if the history of the Second Amendment is what he said it was, then why do we need to amend the Constitution?  

    You can get to the top by heading for the bottom. - R. Lewis

    by SpamNunn on Sun Feb 23, 2014 at 10:54:00 AM PST

    •  because history is open to interpretation, (2+ / 0-)
      Recommended by:
      Old Sailor, Sharon Wraight

      and that is how you rein in the Supreme Court's constitutional interpretations you don't like.

      ...better the occasional faults of a government that lives in a spirit of charity, than the consistent omissions of a government frozen in the ice of its own indifference. -FDR, 1936

      by James Allen on Sun Feb 23, 2014 at 11:10:52 AM PST

      [ Parent ]

    •  Hey everyone! SpamNunn is smarter than Stevens! (1+ / 0-)
      Recommended by:
      FogCityJohn

      And/or he knows his history better, especially on the 2nd Amendment. He says so, right up here.

      •  What 200 years is Stevens talking about? (0+ / 0-)

        The period between Cruikshank and Heller is about 130 years, not 200.

        Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

        by happymisanthropy on Sun Feb 23, 2014 at 03:39:29 PM PST

        [ Parent ]

        •  See Barron v. Baltimore. (1+ / 0-)
          Recommended by:
          Sharon Wraight

          And Stevens doesn't limit himself to SCt opinions, and fed judges did uniformly hold that none of bill of rights applied to states until 1865.

          The dossier on my DKos activities during the Bush administration will be presented on February 3, 2014, with an appendix consisting an adjudication, dated "a long time ago", that I am Wrong.

          by Inland on Sun Feb 23, 2014 at 04:21:07 PM PST

          [ Parent ]

    •  No, he is right. And actually the 2d doesn't (2+ / 0-)
      Recommended by:
      FogCityJohn, Sharon Wraight

      need to be amended.  It needs to be read honestly and without a fake history.  Only once the latter becomes impossible is the former needed.

      The dossier on my DKos activities during the Bush administration will be presented on February 3, 2014, with an appendix consisting an adjudication, dated "a long time ago", that I am Wrong.

      by Inland on Sun Feb 23, 2014 at 04:07:49 PM PST

      [ Parent ]

      •  There's a lot of fraudulent "history" (0+ / 0-)

        in this diary, I've seen the "it was about slavery" canard posted at least twice.

        Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

        by happymisanthropy on Sun Feb 23, 2014 at 10:45:21 PM PST

        [ Parent ]

        •  It was, in the sense that states relied (0+ / 0-)

          On militias to put down slave uprisings, and the fear that the federal government could pressure a state through disarming a militia was real.  

          The dossier on my DKos activities during the Bush administration will be presented on February 3, 2014, with an appendix consisting an adjudication, dated "a long time ago", that I am Wrong.

          by Inland on Mon Feb 24, 2014 at 07:57:18 AM PST

          [ Parent ]

  •  Scalia is snarky, but more importantly (4+ / 0-)

    he says that he relies on merely the text of the Constitution, and the meaning of the words at the time they were written, yet he finds a right to armed self-defense for law-abiding citizens in the constitution, while he has criticized other justices in the past for finding rights that aren't explicitly written into the constitution. I would ask him to point out for me where the Constitution mentions self-defense, or where in the 2nd amendment it says it was only limited to law-abiding citizens. Scalia is often snarky. He is sometimes right. But he is generally wrong, and his method is no more faithful to the text of the constitution than any other's.

    ...better the occasional faults of a government that lives in a spirit of charity, than the consistent omissions of a government frozen in the ice of its own indifference. -FDR, 1936

    by James Allen on Sun Feb 23, 2014 at 11:15:37 AM PST

  •  Silly addition by Stevens. What militias? And do (2+ / 0-)
    Recommended by:
    high uintas, Joy of Fishes

    we want roving militias around the country formed by citizens who want to keep their arms?

    Repeal (though I do not support it) makes much more sense.

    While you dream of Utopia, we're here on Earth, getting things done.

    by GoGoGoEverton on Sun Feb 23, 2014 at 12:07:52 PM PST

    •  He doesn't, of course, believe in a militia right (0+ / 0-)

      the "kolektiv right" interpretation is just a ruse for wishing the second amendment into non-existence.

      Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

      by happymisanthropy on Sun Feb 23, 2014 at 03:41:44 PM PST

      [ Parent ]

  •  We need to define what a person is and who are (1+ / 0-)
    Recommended by:
    Sharon Wraight

    rights extended to. That's how weird and bifurcated it has gotten in this country. My definition of a person who has rights is a person. Not a fetus, corporation, club, church etc. It seems to make sense to me, but no longer seems obvious.

    "You can die for Freedom, you just can't exercise it"

    by shmuelman on Sun Feb 23, 2014 at 12:18:17 PM PST

  •  One the worst aspects of the US Constiitution (0+ / 0-)

    is how hard the Framers made changing the Constitution. So I have some trouble in imagining that any book written with an eye to modifying the document would have any practical effect.

    Voting is the means by which the public is distracted from the realities of power and its exercise.

    by Anne Elk on Sun Feb 23, 2014 at 01:16:34 PM PST

  •  Thank you for this interesting book review, (2+ / 0-)
    Recommended by:
    Sharon Wraight, WakeUpNeo

    Sharon, and for your analysis of Justice Scalia's disrespect for Justice Stevens' opinion. I wonder if Scalia had more confidence in his own ideas would he still need such a heavy coating of vitriol?

    Gratuitous negativity serves him how?

    I agree we are in a Constitutional Crisis, but it has nothing to do with the 2A, (IMHO). I have to hotlist this and read it later, hopefully later this week. Perhaps after reading the book, I'll have to change my mind, (you never know).

    Republished to Firearms Law and Policy.

    "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

    by LilithGardener on Sun Feb 23, 2014 at 01:17:27 PM PST

    •  I wonder the same thing about Scalia (2+ / 0-)
      Recommended by:
      LilithGardener, WakeUpNeo
      I wonder if Scalia had more confidence in his own ideas would he still need such a heavy coating of vitriol?
      So often a bully has some deep-seated insecurity, that s/he overcompensates for. I don't know Scalia well enough to even hazard guesses as to where/how/why he lacks confidence in himself or his ideas. Part of the problem is his that ideas are so ideological-driven (although I don't know why), that he knows he must try to intimidate his opponents with rhetorical overkill or his ideas would fail on their merits.

      I don't understand why the Senate Democrats weren't better briefed to interrogate Scalia more in 1986, or why they voted unanimously to confirm him.

      I see that 7th Circuit judge Richard Posner, himself a conservative, disagrees with Scalia's opinion in Heller, stating that the Second Amendment "creates no right to the private possession of guns". Posner called Scalia's opinion "faux originalism" and a "historicizing glaze on personal values and policy preferences".

      Fwiw, I also read that Scalia is uncomfortable with the liberal changes brought about following Vatican II (like speaking Mass in English), and so attends the Tridentine Latin Mass (published from 1570 to 1962).

      I'm still working my way slowly through Stevens' and Breyers' 2008 dissents -- slow going, with lots of diversions into reading the original historical documents, earlier cases, etc. Good learning, if nothing else.

      Thank you for republishing, much appreciated!

      •  If you ever decide to write a diary (1+ / 0-)
        Recommended by:
        Sharon Wraight

        on the minority opinions in either Heller or McDonald, please do give FLAP a head's up. We would very much like to do our homework for such a post and to coordinate our schedule to republish immediately.

        Interesting observation about Judge Posner; did not know that.

        "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

        by LilithGardener on Sun Feb 23, 2014 at 02:08:01 PM PST

        [ Parent ]

      •  Posner teed off on the Scalia logic (2+ / 0-)
        Recommended by:
        Sharon Wraight, Old Sailor

        The Incoherence of Antonin Scalia
        BY RICHARD A. POSNER (a conservative 7th  Circuit appeals court judge)

        This is funny stuff. It's actually a book review of:
        Reading Law: The Interpretation of Legal Texts
        By Antonin Scalia and Bryan A. Garner

        Here's what got Posner going, heh heh...

        Scalia and Garner ridicule a decision by the Supreme Court of Kansas (State ex rel. Miller v. Claiborne) that held that cockfighting did not violate the state’s law against cruelty to animals. They say that the court, in defiance of the dictionary, “perversely held that roosters are not ‘animals.’” When I read this, I found it hard to believe that a court would hold that roosters are not animals, so I looked up the case. I discovered that the court had not held that roosters are not animals. It was then that I started reading the other cases cited by Scalia and Garner.
        Much of the article covers the Heller decision. Where is Mr. Voimakis when we want him?
        Scalia is a pertinacious critic of the use of legislative history to illuminate statutory meaning; and one reason for his criticism is that a legislature is a hydra-headed body whose members may not share a common view of the interpretive issues likely to be engendered by a statute that they are considering enacting. But when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history.

        Similarly, the book’s defense of the Heller decision fails to mention that most professional historians reject the historical analysis in Scalia’s opinion. Reading Law quotes approvingly Joseph Story’s analysis of preambles—“the preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute”—but fails to apply the analysis to the preamble of the Second Amendment, which reads: “A well regulated Militia being necessary to the security of a free State.”

        [...] Judges are not competent historians.

        I would very much like to meet Mr. Posner. Again, HE IS A CONSERVATIVE.
        OMITTING CONTRARY evidence turns out to be Scalia and Garner’s favorite rhetorical device. Repeatedly they cite cases (both state and federal) as exemplars either of textual originalism or of a disreputable rejection of it, while ignoring critical passages that show the judges neither ignoring text nor tethered to textual originalism.
        And here's the part where Posner is much more magnamimous than Scalia towards international sandwiches:
        Thus they applaud White City Shopping Center, LP v. PR Restaurants, LLC, a decision that held that the word “sandwiches” in a lease did not include burritos, tacos, or quesadillas, because Merriam-Webster’s dictionary defines “sandwich” as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” Scalia and Garner stop there, as if that dictionary reference were the court’s entire decision, thus confirming the use of the dictionary as a guide to the meaning of legal documents. But the court had not stopped with the dictionary.
        Last excerpt: here Judge Posner gets on a roll and bashes Scalia on behalf of gay couples:
        Scalia and Garner denounce acourt that held, in a case called Braschi v. Stahl Associates Co., that the word “family” in a New York rent-control statute that prohibited a landlord from dispossessing a “member of the deceased tenant’s family who has been living with the tenant” included “a cohabiting nonrelative who had an emotional commitment to the deceased tenant.” The word “family” was undefined in the statute. The case may be right or wrong; what is disturbing is Scalia and Garner’s failure to mention that it was a homosexual couple at a time when homosexual marriage was not recognized in New York, and that the opinion states that the two men had been living together just like spouses and had been accepted as such by their families.
        Sharon Wraight, thanks for the thread, and sorry for the hijack. But you mentioned my favorite conservative, Chicago's Judge Posner.

        _______________________________________________________________________________________ It seems to me that we humans take turns being dummies.

        by reasonablegunsplz on Sun Feb 23, 2014 at 03:24:08 PM PST

        [ Parent ]

      •  There was a time when I used to lump Posner, (2+ / 0-)
        Recommended by:
        Old Sailor, Sharon Wraight

        Scalia, Rhenquist, Clarence Thomas, Bork, Edith Jones, etc. together because they could all reliably be counted on to vote similarly. Then some of them actually made it to the SCOTUS, and the country moved unimagineably far to the right and a Posner and some of the other "extreme right wing judges" from the late seventies now look refreshingly different from Roberts and company.

        After growing up with William O. Douglas and The Warren Court, some of this current shit is real tough to choke down.

        There can be no protection locally if we're content to ignore the fact that there are no controls globally.

        by oldpotsmuggler on Sun Feb 23, 2014 at 04:49:19 PM PST

        [ Parent ]

  •  Being called names by Scalia is a badge of Honor! (2+ / 0-)
    Recommended by:
    Sharon Wraight, happymisanthropy

    Though I will note that the majority of Firearms deaths are a direct fallout of the War the Wealthy have been waging on the Poor for decades in the US.

    Economic strife is the root of most crime and violence, and is a "win win" for Republicans as it hurts those they want to hurt AND feeds into reasons for actions that hurt them even more in response.

    End poverty and economic struggle and most crime goes away and people stop shooting each other.

    Don't let the symptoms distract you from the actual causes or you'll never cure the disease.

  •  Cruikshank wasn't 200 years ago (1+ / 0-)
    Recommended by:
    high uintas

    so what 200 years is he talking about?

    Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

    by happymisanthropy on Sun Feb 23, 2014 at 02:03:42 PM PST

    •  Funny (1+ / 0-)
      Recommended by:
      happymisanthropy

      I was just reading Cruikshank and other decisions since and wondered what the hell he was reading.

      And daddy won't you take me back to Muhlenberg County Down by the Green River where Paradise lay. Well, I'm sorry my son, but you're too late in asking Mister Peabody's coal train has hauled it away. John Prine

      by high uintas on Sun Feb 23, 2014 at 02:11:33 PM PST

      [ Parent ]

  •  Thought experiment (2+ / 0-)
    Recommended by:
    i understand, stevemb

    Suppose that the Second Amendment had said: "Defense of the self and home being fundamental, the right of the people to keep and bear arms shall not be infringed." Suppose also that the debates surrounding the passage of this amendment focused exclusively on personal self-defense and made no mention of the militia. And also that state constitutions at the time heavily emphasized individual self-defense.

    And then, suppose that hundreds of years later, five liberal justices over the dissent of four conservatives decided that the central component of this Second Amendment was in fact the militia and not self-defense. They dragged out lots of historical evidence (most of which post-dated the Amendment) indicating that people at the time thought militia arms-bearing was very important. Those same liberals also draped their rhetoric in the language of originalism, proclaiming to espouse the true meaning of the Constitution and that all other interpretations were illegitimate judicial activism.

    That would be completely absurd. But it is an accurate analogy to understand exactly what the Heller opinion is.

  •  Stevens' dissenting op is a real mugging (2+ / 0-)
    Recommended by:
    FogCityJohn, Sharon Wraight

    Ouch! Please assume snippage between paragraphs

    The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

    ...ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Court’s decisional process than on the reasoning in the opinion itself.

    No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses.       

        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 Amendment’s text;

    ...the postratification history of the Amendment... abundantly clear that the Amendment should not be interpreted as limiting the authority of Congress to regulate the use or possession of firearms for purely civilian purposes.

    The Court today tries to denigrate the importance of this clause of the Amendment by beginning its analysis with the Amendment’s operative provision and returning to the preamble merely “to ensure that our reading of the operative clause is consistent with the announced purpose.” That is not how this Court ordinarily reads such texts, and it is not how the preamble would have been viewed at the time the Amendment was adopted.
    Without identifying any language in the text that even mentions civilian uses of firearms, the Court proceeds to “find” its preferred reading in what is at best an ambiguous text, and then concludes that its reading is not foreclosed by the preamble. Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.

    No party or amicus urged this interpretation; the Court appears to have fashioned it out of whole cloth. But although this novel limitation lacks support in the text of the Amendment, the Amendment’s text does justify a different limitation: the “right to keep and bear arms” protects only a right to possess and use firearms in connection with service in a state-organized militia.

    But when discussing these words, the Court simply ignores the preamble.... in the absence of any qualifier, it is all the more appropriate to look to the preamble to confirm the natural meaning of the text.

    Different language surely would have been used to protect nonmilitary use and possession of weapons from regulation if such an intent had played any role in the drafting of the Amendment.

    Even if the meaning of the text were genuinely susceptible to more than one interpretation, the burden would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence.

      Indeed, not a word in the constitutional text even arguably supports the Court’s overwrought and novel description of the Second Amendment as “elevat[ing] above all other interests” “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” 

    With all of these sources upon which to draw, it is strikingly significant that Madison’s first draft omitted any mention of nonmilitary use or possession of weapons.

    The history of the adoption of the Amendment thus describes an overriding concern about the potential threat to state sovereignty that a federal standing army would pose, and a desire  to protect the States’ militias as the means by which to guard against that danger.But state militias could not effectively check the prospect of a federal standing army so long as Congress retained the power to disarm them, and so a guarantee against such disarmament was needed.

    The Court may well be correct that the English Bill of Rights protected the right of some English subjects to use some arms for personal self-defense free from restrictions by the Crown (but not Parliament). But that right—adopted in a different historical and political context and framed in markedly different language—tells us little about the meaning of the Second Amendment .

    ...Thus, the proeme, or preamble, is often called in to help the construction of an act of parliament.

    There is not so much as a whisper in the passage above that Story believed that the right secured by the Amendment bore any relation to private use or possession of weapons for activities like hunting or personal self-defense....Story’s characterization in no way suggests that he believed that the provisions had the same scope. To the contrary, Story’s exclusive focus on the militia in his discussion of the Second Amendment confirms his understanding of the right protected by the Second Amendment as limited to military uses of arms.

    All of the statements the Court cites were made long after the framing of the Amendment and cannot possibly supply any insight into the intent of the Framers; and all were made during pitched political debates, so that they are better characterized as advocacy than good-faith attempts at constitutional interpretation.

     In 1792, the year after the Amendment was ratified, Congress passed a statute that purported to establish “an Uniform Militia throughout the United States.” 1 Stat. 271. The statute commanded every able-bodied white male citizen between the ages of 18 and 45 to be enrolled therein and to “provide himself with a good musket or firelock” and other specified weaponry.35Ibid. The statute is significant, for it confirmed the way those in the founding generation viewed firearm ownership: as a duty linked to military service.

    The majority cannot seriously believe that the Miller Court did not consider any relevant evidence; the majority simply does not approve of the conclusion the Miller Court reached on that evidence. Standing alone, that is insufficient reason to disregard a unanimous opinion of this Court, upon which substantial reliance has been placed by legislators and citizens for nearly 70 years.

     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 Court’s opinion, I could not possibly conclude that the Framers made such a choice.

    _______________________________________________________________________________________ It seems to me that we humans take turns being dummies.

    by reasonablegunsplz on Sun Feb 23, 2014 at 02:27:37 PM PST

    •  what would the fucking point be (0+ / 0-)

      Under Stevens's interpretation, the only people Congress is forbidden from disarming are the people Congress authorized to carry guns in the first place.  If it's that meaningless, why would anyone bother to write it down, let alone pass it into law?

      Politics means controlling the balance of economic and institutional power. Everything else is naming post offices.

      by happymisanthropy on Sun Feb 23, 2014 at 03:50:46 PM PST

      [ Parent ]

    •  From an earlier comment....While nearly 100 people (0+ / 0-)

      a day die to gun violence.   OMG, that’s over 35,000 a year.

      In 1792, the year after the 2nd Amendment was ratified, Congress passed a statute that purported to establish “an Uniform Militia throughout the United States.”  The statute commanded every able-bodied white male citizen between the ages of 18 and 45 to be enrolled therein and to “provide himself with a good musket or firelock...

      Why not get each states to pass a law limiting arms as above and require each gun owner (without exceptions) to enroll in such a militia.?   That might put a good dent in the 35,000 estimate!

  •  Stevens would be wise to release... (0+ / 0-)

    such books when it isn't an election year. Kay Hagan, Mark Pryor and Mary Landrieu are cringing at this.

    If you're not part of the solution, you're part of the precipitate.

    by HairyTrueMan on Sun Feb 23, 2014 at 03:07:29 PM PST

    •  At 93, he probably doesn't buy green bananas, (1+ / 0-)
      Recommended by:
      Sharon Wraight

      let alone time his book release to suit Democratic candidates. He's remarkably fit, but he's not a fool.

      •  I wasn't being literal. (0+ / 0-)

        My point was that his book hurts the chances of any sensible, reachable gun legislation being passed. It actually helps Republicans. But I suppose that at 93, he doesn't really give a shit.

        If you're not part of the solution, you're part of the precipitate.

        by HairyTrueMan on Sun Feb 23, 2014 at 05:34:19 PM PST

        [ Parent ]

    •  Yeah, I'm sure it'll be a campaign issue. (1+ / 0-)
      Recommended by:
      Sharon Wraight

      I can just imagine the furor a book by a Republican former Supreme Court Justice might cause in Senate campaigns in 2014.  

      I bet they're already writing the negative ads linking Mary Landrieu and Kay Hagan to a book by a guy whom Gerald Ford appointed in 1975.  Of course, before they release those negative ads, they're going to have to spend a lot of money on a public information campaign to tell people who the hell John Paul Stevens even is.

      "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

      by FogCityJohn on Sun Feb 23, 2014 at 06:47:31 PM PST

      [ Parent ]

      •  Other people are smarter than you think. (0+ / 0-)

        For instance, many of them know that Stevens was appointed by a Republican and went turncoat once he joined the Court. Now Republicans go out of their way to appoint far right justices such as Scalia, Alito, and Thomas. It's a fucking miracle for Democrats that Roberts upheld the ACA.

        They know that calling Stevens a Republican doesn't mean that today's Republicans would even remotely consider trashing the Second, let alone enacting federal gun control laws. They are smart enough to figure that out.

        And they're smart enough to MAKE gun control an issue in those pivotal Senate races. It not only gives them a chance to retake the Senate, but it also scares future Democrats away from supporting gun control.

        Yes, you're not the only one who knows who Stevens is.

        If you're not part of the solution, you're part of the precipitate.

        by HairyTrueMan on Sun Feb 23, 2014 at 08:20:34 PM PST

        [ Parent ]

        •  Or maybe not. (1+ / 0-)
          Recommended by:
          Sharon Wraight

          Since two-thirds of the American public can't name a single justice on the U.S. Supreme Court, I think you're probably engaging in some wishful thinking.

          And I really doubt anyone is going to be blaming Mary Landrieu for the views of a guy who was appointed to the Supreme Court when she was 20 years old.  You can, of course, believe whatever you need to believe.

          "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

          by FogCityJohn on Sun Feb 23, 2014 at 09:59:42 PM PST

          [ Parent ]

          •  The people who matter know. (0+ / 0-)

            And by this I mean the people who donate their time and money to political campaigns... the people who finance the ads that the two-thirds see.

            The interesting thing is that I go to a popular progressive blog (here) and the top story on the Recommended list is about Stevens' views on the Second. And most of the progressive commenters favor repeal. So it doesn't really matter that people know who Stevens is... He's gotten the conversation started. People on the Left are (foolishly IMO) talking about repealing the Second Amendment during an election year when control of the Senate is at stake.

            Here's a question: Do YOU think the 2nd should be repealed? Because it seems like you do. Should vulnerable Democrats support repealing the 2nd publicly?

            If you're not part of the solution, you're part of the precipitate.

            by HairyTrueMan on Mon Feb 24, 2014 at 05:49:40 AM PST

            [ Parent ]

  •  Do you agree with this? (0+ / 0-)
    Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.
    Do you think that acting to preserve your own life when threatened (i.e. self-defense) should or should not be an explicit right for every human being, American or otherwise?

    If not, why not?

  •  Amending #2 (0+ / 0-)

    Making the amendment less absolutist ("shall not be infringed") would be one thing, but turning it into "your right to bear arms in the National Guard shall not be infringed" would lose a lot of people like me.

    Personal firearm ownership does not need to be prohibited, but rather refined, a whole hell of a lot I will concede.

    •  Who's talking about prohibiting gun ownership? (1+ / 0-)
      Recommended by:
      Old Sailor

      Not Stevens, not me, not anyone I've read commenting here, not anyone in the news, not any elected official I've heard of, not any proposals from even the most ardent gun-control groups. So where does that come from?!? Honestly, that's an open question.

      The RiKBArms talk about it a lot, as a straw man and red herring diversion, but I don't think that's where you're coming from.

      Even during the oh-so-scary (for RiKBAts) decade from 1994-2004, that they evidently see as totalitarian, when assault weapons were 'banned', there wasn't the remotest ripple about banning all guns. Oh, and the "AWB" affected only the manufacture and transfer of weapons made after the ban. Possession and transfer of weapons and magazines legally owned before enactment was not restricted. Some 'ban'.

      Given the extreme emotional reaction from some people about this, you'd almost think they had a kind of anxiety about something being taken away from them, and maybe the guns are just a symbol for something else. What do you think that might be?

  •  a better solution to the 2nd: (1+ / 0-)
    Recommended by:
    Sharon Wraight

    Add this amendment:

    Congress and the several states shall have the power to restrict and control the design, manufacture, marketing, distribution, sale, ownership and possession of any class of product or service known to kill people.

    Congress and the several states shall have an obligation to enact such laws in proportion to the observed deadliness of such products and services.

    ---

    This would force Congress to address guns, vehicles, drugs, food, etc., while allowing a lot of leeway to avoid burdensome laws for products that could kill people but rarely do.

    By restricting attention to the deaths of people, it would fail to give haven to abortion restrictions.

  •  with all due respect, his five extra words (0+ / 0-)

    would not help.

    at all.

    it would simply set off years and years of legal arguments about what constitutes a militia, and whether these survivalist RWNJs qualify

    and it would cause a whole lot more of those fauxmilitias to pop up

    Politics is like driving. To go backward put it in R. To go forward put it in D.
    DEMAND CREATES JOBS!!!
    Drop by The Grieving Room on Monday nights to talk about grief.

    by TrueBlueMajority on Mon Feb 24, 2014 at 05:29:11 AM PST

  •  I've wondered for years now why that (0+ / 0-)

    whole well regulated militia language has been basically ignored.

    Here in GA where Joe Bob down the street, who kicks his dogs and whacks his kids and beats his wife and hates liberals with a passion untold, associated with hate groups and sites on the web, has the "right" to own a gun, but my right not to be subjected to someone so unstable, who is armed, doesn't exist.  (Sorry to all the good Joe Bobs of the world - this is hypothetical, and I've lived here half my life, so I've seen it.)  That pisses me off.  I basically have the right to stay home and off the streets and highways, out of the malls, away from the post offices, etc.  Huh?    

    (Just for the record, I am about as anti-gun as one can get and think all hand guns should be melted down and molded into a memorial statue in memory of all those we have lost unnecessarily and tragically to gun violence, erected in a memorial park in DC)

    The GOP will destroy anything they can't own.

    by AnnieR on Mon Feb 24, 2014 at 07:35:47 AM PST

  •   the Second Amendment (0+ / 0-)

    If we outlawed guns, only the criminals and the government would have them.

    The US is recognized as the greatest threat to peace all over the world.  Nobody else comes close.

    Has the FBI and DEA become standing armies or the War on Drugs become a war against American citizens for profit.

    With the US outspending more on the Department of War that almost the entire world combined is there no concern that maybe and armed citizenry being a smart decision?

    With corporate power being absolute in our society, which implies dominion over military operations as well, does it make sense to disarm the populace?

    I've been in rooms full of Democrats, and asked the question "does anyone here trust the government?"  Only a few raise their hands at best.  

    Conclusion:  IF we really want to reduce gun violence in our society, banning guns will not do it but it will turn a much larger percentage of our population into criminals and I am sure a major portion of our population will consider it an act of war on American citizens.  All we have to do is remember how we butchered native Americans as a lesson for the rest of us.

    If you want to reduce gun violence in our society you have to address drug prohibition, drug prohibition and the corruption associated with the Drug War.

    When this government declares war on its own citizens, and I have no doubt it will, I will be on the side of the patriots and heir guberment will be my enemy.

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