Why the Second Amendment may be losing relevance in gun debate

[Polishprince]

‘Joseph Blocher, professor of law and co-director of the Center for Firearms Law at Duke Law School, described the patchwork of state laws that exists across the country as a "buffer zone" for the Second Amendment.

"Before you even get to the Constitution, there's a huge array of other laws super protecting the right to keep and bear arms," Blocher said. "This collection of laws is giving individuals lots of protection for gun-related activity that the Second Amendment would not necessarily require, and certainly, and in almost all of these instances, that no lower court has said the Second Amendment would require."

Adam Winkler, a professor of law at the UCLA School of Law, also said the Second Amendment is losing its legal relevance in distinguishing lawful policies from unlawful ones as the gap between what he calls the "judicial Second Amendment” and the "aspirational Second Amendment" widens.

Winkler defines the "judicial Second Amendment" as how courts interpret the constitutional provision in their decisions, and the "aspirational Second Amendment" as how the amendment is used in political dialogue. The latter is "far more hostile to gun laws than the judicial one," he said -- and also more prevalent.

"The aspirational Second Amendment is overtaking the judicial Second Amendment in American law," he wrote in the Indiana Law Journal in 2018, a sentiment he repeated in a recent interview with ABC News. "State law is embracing such a robust, anti-regulatory view of the right to keep and bear arms that the judicial Second Amendment, at least as currently construed, seems likely to have less and less to say about the shape of America's gun laws."’

Why the Second Amendment may be losing relevance in gun debate

In the bitter debate over gun control, battle lines are often drawn around the Second Amendment, with many in favor of gun rights pointing to it as the source of their constitutional authority to bear arms, and some in favor of tighter gun control disagreeing with that interpretation. Joseph...

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This is why meaningful, constructive, good faith debate concerning the Second Amendment, its meaning, and its application as a matter of regulatory law is impossible.

The judicial Second Amendment camp and the political Second Amendment camp will always be at odds, never finding consensus or agreement – with the former following Second Amendment jurisprudence as determined by the Supreme Court and the latter having nothing but contempt for the Court and its decisions concerning the Second Amendment.

The 2nd Amendment doesn't give Americans any rights. All of our God Given rights, are endowed to us by Almighty God, not the government.

Even if our government wasn't wise enough to acknowledge it, it wouldn't change the fact that legal firearms are tremendous public policy which helps America be one of the most polite nations on earth.

 

[danielpalos]

I agree to disagree.

This is a sovereign, State's right secured by our Second Amendment:

The defense and protection of the state and of the United States is an obligation of all persons within the state. The legislature shall provide for the discharge of this obligation and for the maintenance and regulation of an organized militia.

 

[Abatis]

I agree to disagree.

No, you disagree just to be contrarian, ignoring the meaning of words and legal canons.

This is a sovereign, State's right secured by our Second Amendment:

The 2nd Amendment has never been inspected to secure or held to protect any right of a state. No state has ever been granted standing to argue a rights injury under the 2nd Amendment, only individual citizens.

You are spouting nonsense.

The defense and protection of the state and of the United States is an obligation of all persons within the state. The legislature shall provide for the discharge of this obligation and for the maintenance and regulation of an organized militia.

And that passage appears in no legal determination or court holding.

The action and effect of militia LAW described in that passage no longer exists. It was extinguished, destroyed, eliminated by Congress when the Dick Act and subsequent National Defense Acts were ratified and enacted. The citizens are no longer under any impressment under law to serve in any milita and are forbidden to form a milita on their own.

You use the word OBLIGATION twice in that passage.

On what planet, using what lexicon is a legal OBLIGATION, placed on either the citizenry or a political subdivision (state) ever considered a right?

Both the claim of a right by a citizen, and recognition of a right from a government is the condition of being free from obligation.

Your position is linguistically and logically incongruent and legally incoherent and you should abandon it.

 

[C_Clayton_Jones]

Take a breath Pops, you're sounding winded from the exertion of scrambling around for a response.

None of that crapstorm spoke to anything I wrote.

The only thing I was talking about was the DIFFERENT judicial interpretations of the 2nd Amendment since courts have been speaking on the RKBA. SCOTUS has been saying one thing consistently from Cruikshank in 1876 to 2016 in Caetano; the lower federal courts were saying something diametrically opposite, for 66 years between 1942 (Tot and Cases) to 2008 when Heller invalidated Tot and Cases--.

Do you disagree with that?

Do you even understand that your vaunted and sacrosanct "judicial Second Amendment” is a schizophrenic mess? tell me, which persona do you identify with, the one that dwelled in the lower courts or the one that's alive and well in SCOTUS?

You denigrate this "aspirational Second Amendment" as being disconnected, but it is much closer to the truth than the collective right "judicial Second Amendment” you seem to want to ignore (or you actually embrace).

Which persona will SCOTUS align with in June in NYSRPA? Will it be the Blocher & Winkler and your "judicial" persona that, given your incoherence above, you can't even recognize has been inconsistent, or will SCOTUS' NYSRPA holding fall closer to the "aspirational Second Amendment", a holding along the lines of what the gun nuts believe, a holding that is going to stake-out territory of the right to arms yet uncharted?

I really need to ask, do you know what the actual case law is, or are you a complete poseur?

The aspirational, political Second Amendment is the creature of rightwing partisan rhetoric, devoid of legal, Constitutional merit.

Indeed, as correctly noted in the OP article, the aspirational Second Amendment is more about the right’s knee-jerk opposition to all government regulation in general, having little to do with the actual regulation of firearms.

In essence, Republican state lawmakers are enacting ‘protections’ with regard to bearing arms where no government regulation exists, nor will it ever exist – not unlike contriving a ‘solution’ to a ‘problem’ that doesn’t exist.

There’s nothing necessarily wrong with this, of course – provided one isn’t so naïve or delusional to believe such ‘protections’ have anything to do with Constitutional law.

They don’t.

 

[M14 Shooter]

The aspirational, political Second Amendment is the creature of rightwing partisan rhetoric, devoid of legal, Constitutional merit.

All of which pales in comparison to the dishonesty and abbject ignorance of the 2nd espoused by the anti-gun left.

 

[Abatis]

The aspirational, political Second Amendment is the creature of rightwing partisan rhetoric, devoid of legal, Constitutional merit.

Indeed, as correctly noted in the OP article, the aspirational Second Amendment is more about the right’s knee-jerk opposition to all government regulation in general, having little to do with the actual regulation of firearms.

In essence, Republican state lawmakers are enacting ‘protections’ with regard to bearing arms where no government regulation exists, nor will it ever exist – not unlike contriving a ‘solution’ to a ‘problem’ that doesn’t exist.

There’s nothing necessarily wrong with this, of course – provided one isn’t so naïve or delusional to believe such ‘protections’ have anything to do with Constitutional law.

They don’t.

And again, none of that crapstorm spoke to anything I wrote -- and in typical fashion, you didn't attempt to address a single question I asked of you.

Try this easy one; what are the cases / citations you would hold up as representing the "judicial Second Amendment"?

As posers do, you wrap yourself with spectacular shroud of bullshit and bluster, signifying nothing and saying even less.

 

[AZrailwhale]

Prove this to be true.

I think the NRA is a dying organization that has lost its way. It’s become a fund raising organization, not the educational and advocating organization it used to be.

 

[AZrailwhale]

If a "measure" has not been ruled constitutional by the court, how can you, with any honesty or acumen, say it is constitutional?

You’ve got it backwards, it’s assumed to be constitutional until ruled otherwise.

 

[Abatis]

You’ve got it backwards, it’s assumed to be constitutional until ruled otherwise.

SCOTUS said laws speaking on, "the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms", are only "presumtively lawful" which means that presumption may be rebutted and challenged.

Hopefully SCOTUS in the near future will set standards of scrutiny and of course for 'strict scrutiny' the presumption, the assumption is that the law is unconstitutional.

 

[M14 Shooter]

You’ve got it backwards, it’s assumed to be constitutional until ruled otherwise.

Its the same thing.
This is why Clayton believes the TX abortion law is constitutional - not that he has the intellectual honesty to admit it.

 

[Oddball]

‘Joseph Blocher, professor of law and co-director of the Center for Firearms Law at Duke Law School, described the patchwork of state laws that exists across the country as a "buffer zone" for the Second Amendment.

"Before you even get to the Constitution, there's a huge array of other laws super protecting the right to keep and bear arms," Blocher said. "This collection of laws is giving individuals lots of protection for gun-related activity that the Second Amendment would not necessarily require, and certainly, and in almost all of these instances, that no lower court has said the Second Amendment would require."

Adam Winkler, a professor of law at the UCLA School of Law, also said the Second Amendment is losing its legal relevance in distinguishing lawful policies from unlawful ones as the gap between what he calls the "judicial Second Amendment” and the "aspirational Second Amendment" widens.

Winkler defines the "judicial Second Amendment" as how courts interpret the constitutional provision in their decisions, and the "aspirational Second Amendment" as how the amendment is used in political dialogue. The latter is "far more hostile to gun laws than the judicial one," he said -- and also more prevalent.

"The aspirational Second Amendment is overtaking the judicial Second Amendment in American law," he wrote in the Indiana Law Journal in 2018, a sentiment he repeated in a recent interview with ABC News. "State law is embracing such a robust, anti-regulatory view of the right to keep and bear arms that the judicial Second Amendment, at least as currently construed, seems likely to have less and less to say about the shape of America's gun laws."’

Why the Second Amendment may be losing relevance in gun debate

In the bitter debate over gun control, battle lines are often drawn around the Second Amendment, with many in favor of gun rights pointing to it as the source of their constitutional authority to bear arms, and some in favor of tighter gun control disagreeing with that interpretation. Joseph...

www.yahoo.com

This is why meaningful, constructive, good faith debate concerning the Second Amendment, its meaning, and its application as a matter of regulatory law is impossible.

The judicial Second Amendment camp and the political Second Amendment camp will always be at odds, never finding consensus or agreement – with the former following Second Amendment jurisprudence as determined by the Supreme Court and the latter having nothing but contempt for the Court and its decisions concerning the Second Amendment.

This is why meaningful, constructive, good faith debate...

Says the craven coward drive-by douche canoe, who has run from each and every meaningful, constructive, good faith debate he has been called out to.

 

[Innocynioc]

I suspect most of the gun nut cowards here aren't ranchers, and have never had a real reason to fear being pulled out of their car, yet they still whine about needing to be armed 24/7. Do you live in NYC or Chicago? No. Gun nuts are just cowards. Admit it. What makes gun nuts so afraid to experience every day life without a gun strapped to their pansy ass?

Availing oneself of doing everything reasonable to protect oneself and others is not cowardice it is intelligence at work.

 

[Uncensored2008]

The aspirational, political Second Amendment is the creature of rightwing partisan rhetoric, devoid of legal, Constitutional merit.

Indeed, as correctly noted in the OP article, the aspirational Second Amendment is more about the right’s knee-jerk opposition to all government regulation in general, having little to do with the actual regulation of firearms.

In essence, Republican state lawmakers are enacting ‘protections’ with regard to bearing arms where no government regulation exists, nor will it ever exist – not unlike contriving a ‘solution’ to a ‘problem’ that doesn’t exist.

There’s nothing necessarily wrong with this, of course – provided one isn’t so naïve or delusional to believe such ‘protections’ have anything to do with Constitutional law.

They don’t.

Saul Goodman - consaquenchally lawarfying...

 

[Uncensored2008]

And again, none of that crapstorm spoke to anything I wrote -- and in typical fashion, you didn't attempt to address a single question I asked of you.

Try this easy one; what are the cases / citations you would hold up as representing the "judicial Second Amendment"?

As posers do, you wrap yourself with spectacular shroud of bullshit and bluster, signifying nothing and saying even less.

Saul Goodman got his law degree for a Philippines university he sent a matchbook cover to - then paid a Puerto Rican kid to take the bar for him.

Outside of slip and fall - he just isn't what anyone would call a "legal scholar."

 

[Death-Ninja]

Yep. Gun nuts are cowards. Only a coward is afraid to face everyday life without carrying a weapon designed to kill. What are you so afraid of. Was someone mean to you when you were little?

Above comment is so ludicrous it descends into satire, he extends exact same argument corrupt DA did in Rittenhouse trial, "everyone takes a beating every once in a while," and you are a coward if you resist such victimization!

Such beliefs are very likely the result of vast vast abundance & privilege and are utterly devoid of rationality, so much so you almost must conclude the idiot issuing such is either trolling, or psychologically damaged....

 

[C_Clayton_Jones]

This is why meaningful, constructive, good faith debate concerning the Second Amendment, its meaning, and its application as a matter of regulatory law is impossible.

I’d like to thank the conservatives subscribing to this thread for proving correct the thread’s premise.

 

[Wyatt earp]

Yep. Gun nuts are cowards. Only a coward is afraid to face everyday life without carrying a weapon designed to kill. What are you so afraid of. Was someone mean to you when you were little?

What do you care? And what happened to my body my choice...

 

[Abatis]

I’d like to thank the conservatives subscribing to this thread for proving correct the thread’s premise.

More bluster and bullshit.

Answer the easy question, what are the cases / citations you would hold up as representing the "judicial Second Amendment"?

 

[Uncensored2008]

I’d like to thank the conservatives subscribing to this thread for proving correct the thread’s premise.

Oh, that's what you think that means, huh Saul?

 

[BULLDOG]

Above comment is so ludicrous it descends into satire, he extends exact same argument corrupt DA did in Rittenhouse trial, "everyone takes a beating every once in a while," and you are a coward if you resist such victimization!

Such beliefs are very likely the result of vast vast abundance & privilege and are utterly devoid of rationality, so much so you almost must conclude the idiot issuing such is either trolling, or psychologically damaged....

Well no. If the cowards had ever actually been a victim, that would at least be a rational for feeling the need to be armed 24/7. Being afraid of something that has never happened, and is likely to never happen is just being a coward.