Second Amendment in SCOTUS

| May 9, 2021

A while ago Poetrooper brought out his Good Idea Fairy with the idea having a periodic article on the Second Amendment. A weekly, perhaps. He neglected to volunteer to provide the posts, however.
I didn’t hate the idea, but felt it unnecessary for any of several reasons. So to keep what passes for peace in this family, I dedicate today’s 2A post to Poetrooper. I’m sure there’ll be more.

Gun Rights Advocates Make Their Case

Frank Rizzo

The right to keep and bear arms took a major advance in the 2008 Supreme Court case District of Columbia v. Heller. According to a summary of the case, ruled 5-4 with Justice Antonin Scalia writing for the majority, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

The court followed that up with McDonald v. City of Chicago in 2010, extending the ruling to the states.

On April 26, the court decided to take up the case of New York State Rifle & Pistol Association, Inc. v. Bruen. New York has one of the strictest laws regarding the right to carry a concealed handgun—it imposes a “proper cause” to issue permits. Users must demonstrate a compelling need for protection, such as carrying cash. In a press release supporting the case, the NRA stated that, “law-abiding citizens should not be required to prove they are in peril to receive the government’s permission to exercise this constitutionally protected right.”

The petitioners argued against the state’s “proper cause,” urging, “The time has come for this Court to resolve this critical constitutional impasse and reaffirm the citizens’ fundamental right to carry a handgun for self-defense.”

Sounds a lot like the PDRofMD’s “good and substantial” reason one must prove prior being allowed one’s Second Amendment rights. These two requirements are defined nowhere, but are adjudicated by the whims of a board of unelected officials.

I hold no hopes for sweeping changes, but will wait with interest what the inevitable 5-4 vote will bring.

Great Neck Record

Thanks, Poe.*grin*

Category: Guns, Second Amendment

Comments (38)

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  1. Anonymous says:

    Don’t forget Roberts’ inclination to vote for anything left/libtards like as a “tax” when it counts for some suspect reason…

  2. Roh-Dog says:

    I’m starting to believe our ‘betters’ don’t trust us with our God-given rights.
    Imagine a world where we gave a f*** what they think…
    Lolz. get rekt steppers.

  3. 5JC says:

    I wonder if NY will have a midnight law change like they did last time when the court outcome was certain.

  4. Poetrooper says:

    Ed thank you for following through on the concept, but I must question your insinuation that the provider of this concept also should be the provider of the content as well, especially when he’s an old geezer about to enter his ninth decade in the next few weeks.

    If ol’ Poe may make a suggestion why don’t we do this: All of the regulars who gather here daily should be on the lookout for 2D Amendment news developments and forward them to YOU for posting.

    In these increasingly perilous times, state legislatures throughout flyover country are very busy promulgating legislation to insure our constitutional rights are not usurped by the assholes in Washington. There are new developments on an almost daily basis.

    Sharing such news serves a very real purpose in that it reinforces our beliefs in constitutional, representative democracy, making us aware that we have tens of millions of like-minded Americans who want this country governed by a federal government that is of the people, by the people and for the people…

    And rightfully scared shitless of the people…

    How about we call it the “Don’t Tread on Me” feature?

    Do ol’ Poe’s old ears hear any “Hooah’s!” or “Hell yeah’s!” or Fuckin’ A’s!” from any of the the rest of you patriots who lurk here?

    • RustyTrooper says:

      “especially when he’s an old geezer about to enter his ninth decade in the next few weeks.”

      Jesus fuck, what is it with geriatric white guys and your internet obsession? If this what happens to every crusty white fuck when you run out of boner pills, are too deaf to hear Fox News and your kids don’t want to visit you at your retirement center anymore?

    • Cummins says:

      “Hell yeah’s!”

    • USMCMSgt (Ret) says:

      YUT! Absolutely. Comments would be interesting to read. I, for one, would look forward to the contributions and read what others have to say.

    • KoB says:

      HOOAH! HELLS TO THE YEAH! and PHUQUIN’ A!

      What part of “…Shall not be infringed…” do these mofos NOT understand. The 2nd A doesn’t give the right to OWN a firearm, it prevents the grubermint from forbidding you to own a firearm. The Founders hadn’t just finished a hunting trip, they had just finished throwing off the yoke of what was becoming an oppressive grubermint. That is the same thing we are facing now.

      It has never been about the control of gunz; it has ALWAYS been about the control of We, The People.

    • Sparks says:

      You get an “Oh Hell Yea” from me Poe.

    • SFC D says:

      HellFuckinYes!

    • Anonymous says:

      Hell da Fuck yeah!

  5. USMC Steve says:

    KoB, is has never been about their lack of understanding. It is all about their hatred of it.

    Concept is simple and over the last 15 years or so, not even slightly concealed. The social democrats intend to RULE this country, not govern it, and do it their way. If they can pull it off, they will take over the government and run it as they please, and getting the peons they want to enslave unarmed is an essential step to doing this, because they know when they start really trying this, we will kill them. Every single country that has gone socialist/communist, and then turned into a third world shithole, has put gun confiscation/restriction/control at or near the top of their list. Venezuela being the most recent example for folks who cared to pay attention.

    • rgr769 says:

      People can vote themselves into communism/Marxism but they usually have to shoot their way out.

  6. Fjardeson says:

    Another blow struck for the 2A! Texas is about to get constitutional carry!

    • David says:

      Kind of a pity; open carry has been limited to concealed-carry license holders to date… and I’m OK with that. At least once, they’ve been background checked and have to demonstrate some basic level of proficiency (albeit a VERY basic level of proficiency.) I know too many yahoos slavering at the prospect of “being able to carry muh piece so everyone can see it” who probably SHOULDN’T. Go to almost any range for an hour or so, observe the idiocy, and ask yourself if you want those folks openly carrying all the time.

      • 5JC says:

        Ah, you see the plot hole you have fallen in to? You either believe the rights are for everyone or no one. Because as soon as you start down the road you are on the next logical step is to to turn the “shouldn’t” in to a “not allowed to”.

        We may as well trot out the old driving comparison. I see idiot drivers every single day that shouldn’t be on the road. They appear stupid, careless, lazy and dangerous. They are still allowed to drive. And guess what? If the state takes away their driving privileges, they still drive anyway. So prohibiting their behavior is pointless as the penalty for non-compliance is so small.

        Keeping a right as a privilege isn’t really going to change much except to make the gun less visible. Small comfort. I’d rather see it and know fully what kind of idiot I am dealing with up front.

  7. USMC Steve says:

    Not sure why open carry would be something one would want to do. I don’t want the criminals knowing I have a weapon until I deploy it on them. Were I an armed crook and going to rob a place, the first targets I would deal with would be open carriers, easily identified by the guns they have out for everyone to see.

    Your attitude towards the various boobs you describe is understandable, but in point of fact, in the states that allow constitutional or open carry, the stats show almost no improper use of firearms by those people. I would also prefer they get the training, but no one asked me. Training is good.

    • Poetrooper says:

      “Were I an armed crook and going to rob a place, the first targets I would deal with would be open carriers, easily identified by the guns they have out for everyone to see.”

      Another way of looking at that, Steve, is that were I an armed crook, the first thing I’D DO is find a place to rob where there were NO open carriers.

      Most robbers just want to get the loot and get out–not get into a shootout…

      • USMC Steve says:

        Poe, that is not as true as it used to be. The FBI says it used to be almost 90 percent likely that if someone was murdered, someone they knew did it. Now we have gang crimes where they rob and murder at total random to get in the gang, and stuff like that. Criminals are getting more bold and more crazy. You cannot count on anything anymore. If the take is high enough, a violent crime is not unlikely.

        • Poetrooper says:

          You’re correct, Steve, but I was addressing the issue of armed robbers, not gang shootings, which are, as you say, totally senseless.

    • Docduracoat says:

      Open carry is tactically poor but socially good.
      It normalizes guns to the masses.
      They see people open carrying in Supermarkets, Hardware stores and even Walmart.
      And nothing happens.
      So the entire “blood in the streets” argument is proven wrong to anyone with eyes.
      As for criminals attacking open carriers, just watch Active Self Protection on YouTube.

      Lots of surveillance videos of criminals ignoring open carriers and even uniformed cops as they launch a crime.

  8. Martinjmpr says:

    The question is going to be, to what extent are states allowed to regulate the possession and carry of firearms?

    The Bill of Rights was never intended to apply to the states (see, Barron v. Baltimore, 32 U.S. 243 [1833]), so while a Federal prohibition on the ownership of firearms is clearly unconstitutional, the same is not true of the states.

    Yes, McDonald (561 U.S. 742 [2010])did “incorporate” some of the 2nd amendment to the states through the 14th amendment, but it strains credibility to say that the McDonald decision prohibits any and all regulation of arms by the states or their sub-governments in cities and counties.

    (Side note: I like to call Barron v. Baltimore “the most significant supreme court case you’ve never heard of.” The short version is that the SCOTUS unanimously determined that if the founders had intended the protections of the Bill of Rights to apply to the states they would have said so, and they did not. It’s also worth noting that unlike modern SCOTUS decisions where we have to delve into the minds of the founders by going through their writings, the author of Barron v. Baltimore, John Marshall, KNEW the founding fathers very well and had a pretty good idea of what they thought about the Constitution.)

    • penguinman000 says:

      SCOTUS later decided that the Bill of Rights do apply to the state, not just the federal level of government.

      Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897) they ruled the 14th amendment requirement for due process required just compensation prior to seizing property.

      Gitlow v. New York, 268 U.S. 652 (1925) extended the 1st amendment to the state level.

      Under current case law the Bill of Rights very clearly extends to the states.

      As to McDonald (and Heller), SCOTUS made it very clear the second amendment is an individual right not tethered to service in a militia. At the same time they also clearly stated the right to keep and bear arms is not absolute. The state can place limitations on it.

      Then again, I’m no lawyer. So I could be wrong.

      • Martinjmpr says:

        Then again, I’m no lawyer. So I could be wrong.

        Incorporation is selective, an amendment-by-amendment process and not even all of every amendment gets incorporated.

        SOME provisions of the BoR have been held applicable to the states through the Due Process clause of the 14th amendment – but some have not (for example the right to jury in civil trials.)

        So no, it is not correct to say that the BoR applies to the states. It doesn’t. The 14th Amendment MIGHT hold SOME parts of the BoR as applicable to the states, but that’s the 14th Amendment, not the BoR.

        • penguinman000 says:

          From what I can gather from Heller and McDonald SCOTUS said it’s an individual right (extending the 2nd to the state level) but the states also have the ability to limit that right.

          Am I missing something?

          • Martinjmpr says:

            The thing about both the Heller and McDonald cases is that they dealt with what were either de facto or de jure TOTAL prohibitions.

            If it’s a TOTAL prohibition – you can’t have a firearm, period, no matter what – then it’s easier for the Court to say it violates the 2nd Amendment/14th Amendment.

            The extent to which firearms can be regulated SHORT of a total ban is still the gray area that the Court really doesn’t want to get into, and for good reason: Because that’s the job of the legislature.

            Think of it like a rifle range: On either side of the range you have a big red and white striped pole that mark the left and right limits. Under no circumstances can you fire to the left of the left limit or to the right of the right limit.

            The purpose of the Courts is to define those left and right limits. What happens in the middle is for the legislature to decide.

            What SCOTUS has to decide in the NYS case is to what extent can the State limit a persons right to lawfully carry or transport a firearm for lawful purposes? That’s a thorny issue that they aren’t keen to get into.

            • penguinman000 says:

              Doesn’t the practical application of incorporation mean the BoR has been applied to pretty much the state level while allowing the state to limit those rights?

              Is there case law that explicitly states a specific amendment does not apply at the state level in totality?

              • Martinjmpr says:

                AFAIK Barron v. Baltimore is still good law and has not been overruled.

                Furthermore the 3rd, 9th and 10th amendments are part of the BoR and it wouldn’t make sense to incorporate them to the states since they specifically deal with Federal powers.

                So no, I don’t think it’s accurate to say “the BoR have been applied pretty much to the state level.”

                Incorporation is usually called “selective incorporation” for that reason. It is not a “general” application of the BoR to the states, it is a selective application of parts of the BoR to the states.

  9. Poetrooper says:

    Jmpr, it’s called “Incorporation”. From Wikipedia:

    “Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state, governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to “incorporate” most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.”

    • Martinjmpr says:

      See above, regarding incorporation.

      In any case, even Heller said the 2nd Amendment does not mean that firearms cannot be regulated, it just means that they cannot be prohibited.

      There’s a lot of gray area between a total ban on ownership and possession (which is what both Heller and McDonald concerned) and regulations regarding the manner in which government entities may regulate the ownership and possession of firearms.

      Consider that even the vaunted First Amendment is subject to “reasonable time, place and manner restrictions.”

      Regarding the case that SCOTUS has decided to hear on the NY law that essentially prohibits lawful possession of firearms outside the home, my guess is that SCOTUS will “split the baby” and require NY to institute some kind of “shall issue” permit for the lawful transportation of firearms in and through the state, with a process for those denied a permit to appeal to a judge and a requirement that a denial has to be justified (IOW, they can’t deny for “failure to show good cause” they have to actually state a reason such as: criminal convictions, mental incapacity, restraining orders, etc.)

      I don’t foresee SCOTUS striking down the permit requirement for NYS on 2nd Amendment/14th Amendment grounds. Maybe I’m a pessimist but I just don’t see that happening.