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Analysis: 2d Amendment Extension Likely
March 2, 2010
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(GunReports.com)--Lyle Denniston at SCOTUSblog attended the McDonald, et al., v. Chicago, et al. (08-1521) Supreme Court oral arguments March 2, and offered this gameday account of the proceedings:
The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right. The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendments guarantee of due process, since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.
When the Justices cast their first vote after starting later this week to discuss where to go from here, it appeared that the focus of debate will be how extensive a right to keep and bear arms should be spelled out: would it be only some core right to have a gun for personal safety, or would it include every variation of that right that could emerge in the future as courts decide specific cases? The liberal wing of the Court appeared to be making a determined effort to hold the expanded Amendment in check, but even the conservatives open to applying the Second Amendment to states, counties and cities seemed ready to concede some but perhaps fewer limitations. The eagerly awaited oral argument in McDonald, et al., v. Chicago, et al. (08-1521) found all members of the Court actively involved except the usually silent Justice Clarence Thomas. And, while no one said that the issue of incorporating the Second Amendment into the 14th Amendment had already been decided before the argument had even begun, the clear impression was that the Court majority was at least sentimentally in favor of that, with only the dimensions of the expansion to be worked out in this case and in a strong of likely precedents coming as time went on.
An attempt by an attorney for the cities of Chicago and Oak Park, Ill., defending local bans on handguns in those communities, to prevent any application of the constitutional gun right to states, counties and cities looked forlorn and even doomed. The nub of that argument by James A. Feldman of Washington was that, unlike other constitutional rights that the Court has extended to the state and local level, the right to a gun recognized by the Court two years ago in District of Columbia v. Heller pitted the threat that guns pose to human lives against a constitutional right, so the balance should be struck differently. So far as the hearing Tuesday showed, Justice Stephen G. Breyer was the only member of the Court attracted to that approach.
Justice Breyer drew only thinly veiled ridicule from conservatives on the Court when he suggested that there be a constitutional chart drawn up to rank the higher and lower priorities of rights that would be protected against state and local infringement perhaps the highest rank safeguarding the right to have a gun in community self-defense (as with a militia) but with a decidedly lower rank for a right to shoot birds. While that idea drew no support, the notion that the Second Amendment right restricting state and local gun laws would not be an absolute right had significant appeal, it appeared.
The first argument to collapse as the hearing unfolded was the plea by the lawyer for gun rights advocates, Alan Gura of Alexandria, VA, that the Court should incorporate the Second Amendment into the 14th Amendment through the privileges or immunities clause. In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873. And within a few minutes, Justice Antonin Scalia the author of the Heller opinion and the Courts most fervent gun enthusiast was sarcastically dismissing the privileges or immunities argument.
Why, Scalia asked Gura, are you asking us to overrule 140 years of prior law .unless you are bucking for a place on some law school faculty. The Justice said the privileges or immunities argument was the darling of the professorate but wondered why Gura would undertake that burden. And Scalia noted that the due process clause an open-ended provision that he has strongly attacked on other occasions was available as the vehicle for incorporation, and added: Even I have acquisced in that. Gura somewhat meekly said we would be extremely happy: if the Court used the due process clause to extend the Second Amendments reach.
Justice Ruth Bader Ginsburg, one of the dissenters in Heller, then moved in to press Gura on just what unenumerated rights would be protected if the Court were to revive the privileges or immunities clause. It was a theme that would recur often thereafter, solidifying the appearance that the argument had virtually no chance of succeeding. (In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the privileges or immunities clause. He responded that he could not provide a full list, to which Justice Scalia retorted: Doesn t that trouble you? It was obvious that it troubled the Court.)
When Guras argument moved on to the general question of incorporation of the Second Amendment, Justice John Paul Stevens explored whether such an extension would apply to all of the Second Amendment including any court interpretations that ensued or only a homeowners right to protect against intruders in the home the specific right that Heller recognized. Gura responded that the Second Amendment was not so limited. Stevens then asked whether the right would include a right to parade around in the streets with a gun. Gura said that the states and cities would have to obey a right that was fully equal to all rights embraced by the right to keep and bear arms.
Justice Kennedy soon joined in that exchange, and asked whether incorporation would embrace all of the refinements that courts would make in interpreting the right, or just the core of the right. Gura left no doubt that gun rights advocates were seeking the full panoply of whatever gun rights the Amendment were found to cover.
The remainder of Guras time was spent amid an exchange between Breyer and Scalia over whether courts should give the Second Amendment lesser scope based on statistics about the social cost that would result in people killed from others use of gun rights. Gura was essentially a bystander as the two Justices jousted over that issue.
The Court then got the focus that a majority seemed to be hoping for: a full-scale plea, by former Solicitor General Paul D. Clement, to use the due process clause as the vehicle for extending gun rights to the state and local level. And it was during Clements time at the podium that the Courts liberal bloc began making a case which Clement essentially resisted to limit the incorporated right to, at most, some core guarantee, without all of the variations that would later develop. Clement noted that there were not a lot of variations of the gun right yet, since Heller was the only precedent so far, and that was limited to gun rights for self-defense in the home.
Clement, however, said that the Court should allow a carryover into the 14th Amendment of all of the jurisprudence that develops on the Second Amendments scope. There should not be a Second Amendment right and then a mere shadow of it that applied to state and local government, he argued. He did concede, though, that constitutional gun rights might be allowed to develop differently at the state and local level than at the federal level. But that, he said, is different from creating only a shadow right applied to state and local laws.
The Courts strong leanings in the case became even more evident during questioning of Feldman, the lawyer for the two cities involved in the case. Although he absolutely needs the vote of Justice Kennedy if his plea is to prevail, he almost immediately frustrated Kennedy by arguing that gun rights were not an essential attribute of ordered liberty, thus questioning whether such rights qualify as fundamental. If they are not, Kennedy shot back, then the Heller decision was wrongly decided. And Chief Justice Roberts told Feldman that there was no way to read the Heller opinion to make the Second Amendment seem a less important right.
Tellingly, however, the Chief Justice commented that we havent said anything about what the content of the Second Amendment is, so that, over time, it may develop that state and local governments may well be allowed to impose restrictions, such as bans on carrying concealed weapons. And Scalia reminded Feldman that the Court in the Heller decision had left room for some regulation of guns even though the Second Amendment now embraced a personal right to have a gun. Kennedy also noted that there are provisions of the Constitution that allow states to have significant latitude in regulating what those provisions seek to protect.
Feldman made no headway with an argument that state and local political processes should be left to develop gun control policy, unimpeded by the Second Amendment or its equivalent. Some cities, he said, might conclude that a ban on handguns is he best way to protect people, and yet Heller says that the Second Amendment forbids such a ban. That was, in essence, a total rejection of the idea of incorporation, and it was by then more than evident that there was no majority for such a rejection. He also scores no points with a complaint that incorporation of the Second Amendment would go a long way toward established a national constitutional right of self-defense, which he said the Court has never mandated and should not now. For 200 years, he said, it has been up to state and local government to sort out when self-defense was justified. No member of the Court seemed persuaded that that was now at stake in the Second Amendment context.
To read the entire piece, click here.
Reader Comments
I don't know this author, Lyle Denniston, of Akin Gump Strauss Hauer & Feld LLP, but I assume he's a lawyer. If his view of the proceedings so far is complete and accurate, it may be that my previous criticism of the NRA's approach to this case was wrong. It seems that Alan Gura's appeal to the Privileges and Immunities clause didn't meet with much approval from the Court, but the NRA's Clement's Due Process argument was well-received.
I wish this stuff was as simple as my viewpoint.
Gaviota
I don't think there should even be a viewpoint on either side. We either have the right "to keep and bear arms" or we don't. If we have that right, is it the States or the Federal Gov't that determines the reach of that right.? Right now, every entity that cals itself a governing agent wants to write it's own interpretation into a 140 year old Amendment.Why not punt here and and go on to greater issues like keeping criminals behind bars and fighting graft and corruption in those very governments.The Supreme Court should never be able to re-write the Constitution or any of the Amendments put forth and ratified to date. Semper Fi
All those words, talk and writing over what is truly a cut and dried issue. The complete Second Amendment is only 27 words long and easily understood by any person of average intelligence. But that would be "too easy" for these pampered, "supreme" self-aggrandizers. They couldn't possibly SIMPLIFY things---No way!
The 2nd Amendment was ratified on 12/15/1791, almost 219 years ago. It's good to remember that the 2nd was in place and relatively unmolested for about 143 years until Miller came into play. That appears to be the start of the legalistic shenanigans that we now see as S.O.P. when the Supremes get involved.
OBFUSCATION: "Obfuscation is the concealment of intended meaning in communication, making communication confusing, intentionally ambiguous, and more difficult to interpret."
I read another article (I think I got the link form one of these forums) that also indicated the NRA's approach was appearing favorable. Verrrry interesting.
I also wish the highest court was a little simpler. IMO, the Constitution was simply written with clear intent. That makes me naturally suspicious of anyone who doesn't agree wit it.
Breyer's "chart" idea is ludicrous, especially from one supposedly so learned and experienced.
Now Gav - don't go calling me Chicken Little here! ;)
RackEm - great point! Most of the original States' constitutions also had similar provisions, and some were even more in favor of wee citizens than the US Constitution.
I honestly think the reason this issue is ongoing, for lawyers to continue to make more money. You would think by now, after 200 plus years we would have our Constitution and Bill of Rights figured out. Any coincidence a lot of politicians are lawyers? Why Democrats don't want lawsuit reform in health care?
Robert - right on the money (pun intended).
I think that if citizens are forbidden to protect themselves by ANY level of government, if that government fails to protect those citizens from harm, then the government restricting that right should be liable for the consequences of that decision and the governing body should be chargable for the offence perpetrated on defensless citizens. Donald W. [March 4, 2010
Lee, I remember reading that Gura was not a 2nd Amend. patriot, but essentially a talented, publicity hound of a lawyer with money to blow on libertairan causes. His theory on incorporation was an attempt at a home run not on the gun issue per se, but on a larger constituional stage. Don't get me wrong, Gura is a terrific litigator to whom we are deeply indebted. But my impression is that his client isn't necessarily the American public, but his own ego.
Richard V - are you implying that most of these attorneys have more idealistic goals in this fight than sating their own egos? ;)
All the kings horses and all the kings men seem to be a bunch of a$$es. Whoever reads the very short and concise 2nd Amendment always forgets that there is a comma in the sentence. Of course with modern English, no one learns the meaning of punctuation any more. The comma in this case means that WE CITIZENS have a RIGHT to own guns. Those who have defined the need for lawyers to define themselves are right on the money.
Richard V: Yeah, unfortunately, that's probably correct. Still, like we say in the military about officers, you don't want to go into battle behind someone with an inferiority complex. Like you, I don't really care if Gura's got a touch of egomania as long as he's on our side.
Gaviota
Roger that Gav!
dgray64 - unfortunately, lawyers make money arguing over the inarguable. They also get to switch sides if they feel like it. IMO, the various state bars could do a lot to clean up the ethical quagmire we face by doing a better job of policing the barrister ranks.
"It appeared that the focus of debate will be how extensive a right to keep and bear arms should be spelled out" I'd start and stop with four words: "Shall Not Be Infringed" Alright, Next Case... Criminals and the Insane do not have access to guns when they are incarcerated. "Keep-Em" Incarcerated.
While the Constitution may seem simple, it really isn't. A large portion of that is because of lawyers (who doesn't want to be a considered a star in their field, be it law, plumbing, or whatever?). But another large portion is because of changes in society and technology. When the Framers wrote the Second Amendment, we were an agrarian society who had to fight off Indians and criminals with muzzle loaders. Just about every one carried a gun because it could be dangerous even going to town. We had to be our own police and protection. Now we live in a predominantly urban society, cheek by jowl with others. Do we still need to be our own police? No. But we do have to be our own protection from time to time and now we have better ways of doing that. No right is, or can be, limitless. Feel the need to protect yourself with an RPG or a full auto Thompson? Sorry, you have to lower the expectations. What the Supremes are really trying to do is to establish what level of the right to keep and bear arms that all of us have. It's just not as easy as it seems. And, yes, I am a lawyer (and a gun nut) so abuse away if you like.
Feel the need to protect yourself with an RPG or a full auto Thompson? Sorry, you have to lower the expectations.
Visigoth52: As a lawyer, maybe you can explain to a dumb old retired Navy electrician something that's been irking me. As you know, we have a set of laws proscribing a number of forms of bad behavior. You are familiar, of course with the term malum in se, describing laws which prohibit actions because they are bad, harmful, or deadly. But then, we also have several more layers of laws prohibiting behavior under malum in se that could lead to harm. So, for example, we have a law prohibiting murder, and another law prohibiting assault, and another law prohibiting threats to commit murder or assault, and ANOTHER law prohibiting the possession of anything capable of being used to threaten, assault, or murder, and by the time we get to the fourth layer, it's no longer a malum in se law, it's now become a malum prohibitum law. Malum prohibitum law criminalizes behavior not because it causes harm, but because it's against the law. Now, IMHO, malum prohibitum gun laws only affect the law abiding. As we now have over 25 years of conclusive, and concrete evidence from 48 states that concealed carry licensees are without question the most law-abiding, peaceable citizens on the planet, and that absolutely no bloodbaths have occurred anywhere as a result of the enactment of CCW laws, why should we have CCW laws? Why have any gun laws at all? Aren't the malum in se laws adequate for the criminal justice system to act against violent offenders? Why must we have multiple layers of laws that make actions illegal just because the action is a violation of statute, absent evidence of harm? Why, exactly, should we peaceful citizens HAVE to "lower the expectations" of our civil and human rights?
Gaviota
Gav - thanks for that. IMHO you don't really need to have "gun" in "malum prohibitum gun laws only affect the law abiding." I agree with you completely, and am sick and tired of being inconvenienced for "the greater good" when the miscreants whose behavior was supposed to be affected doesn't change an iota. I think you've seen me spew on that topic before.
I would say that malum in se laws are just fine for dealing with criminals, but if that's all we had, we wouldn't need as many attorneys. Then again, I'm just a layman, and a dumb ol' Jarhead at that, so what do I know anyway? I also don't stand to profit from more complication.
Visogoth - I agree that the Constitution isn't simple, and also agree that is because of lawyers. However, to lay people, it is still simple, or at least should be. If people trying to make a name for themselves would quit trying to manipulate words, it would still be simple. The Ten Commandments was even simpler. Funny how you can make simpler rules when you have to write them out longhand or manually carve the letters in stone, and lack the benefit of copiers.
I do not agree at all about lowering our expectations. You reference our founders granting (sorry if the semantics are off a bit here) us the right to protect ourselves against criminals and Indians. Well, we no longer have to worry about the latter in the literal sense, but in our urban society the former are running more rampant than ever before. Further, the framers' intent is well published, though not as well read, and very clearly threefold: Protection against criminals, enemy warriors, and tyranny. I recently saw a quote of George Washington to the effect of the 2nd Amendment is second only unto the Constitution itself, as it is the peoples' liberty's teeth. How do you explain that?
Why should I have to go through the lengthy NFA process to get a full auto or silencer, when "soulja boys" can get them on the street? Why shouldn't I be able to defend my home with a Thompson if I so choose? What do you recommend I use when gang-bangers come a knockin' with full auto heat?
Assume arguendo that we only buy the "militia" interpretation of the 2nd Amendment. If in fact we were invaded by a foreign force, and we needed the militia to defend our homeland, then every neighborhood should have crew served weapons (machineguns, mortars, etc.), in truth needs CSW's. How would we fight a modern foe with firepower limited by our current laws?
I do not believe the Thompson Machine Gun, or the RPG are highly sophisticated weapons. I would classify them as the "Collector Series". The only thing that separates a civilized society from a malicious society is a "Natural Disaster". Indian reservations are a good example of what life would be like when there's too much government control. IMO, the police are used as revenue collectors to make up for budget shortfalls.
Jeff W - I agree. I picked the Thompson 'cause that was V's example. Personally, a silenced SBR would be my preference.
Great point on the natural disaster.
Our founding fathers thought the second amendment was important enough to make it separate from any other and in comparing the first to the second the wording is so obviously stronger. Because of the first amendment you pay no sales tax when you purchase a newspaper because that is an infringment on the freedom of speech, but our government is trying to tax guns and ammo out of our reach. I am sure that within the next 10 or 20 years the people of this country will realize that the first amendment is worthless without the second.
Damn...and I really didn't feel like typing tonight!
QUOTE: "While the Constitution may seem simple, it really isn't."
Naw, man... it really IS that simple. It was designed to be simple.
Extremely intelligent men wisely wrote our Constitution so that even common folk like me could understand it. And I do.
Obfuscation wasn't part of their plan, but oh, how times have changed! Lawyers without even 1/16th of the brainpower of our founding fathers now endlessly pontificate about the F.F.'s "original intent." How pathetic... how dishonest.
Their "original intent" is very easily found. It's not hidden or restricted in any way, but it looks like you might have missed it. Please start here: The Federalist Papers. http://www.foundingfathers.info/federalistpapers/
And you thought you knew everything you needed to know when you got out of law school! Who'da' thought that you'd actually learn something so important on a lowly "gun-gab" website! : )
QUOTE: "...(who doesn't want to be a considered a star in their field, be it law, plumbing, or whatever?)."
I made a mental list of the people that I've worked for and hired in the last few decades. It's a long list, but I don't think that even ONE of them ever held any "aspirations of stardom." I'd say that they all just wanted to be competent and honest in their professions. But I guess that would probably disqualify them as lawyers...
QUOTE: "But another large portion is because of changes in society and technology."
I'm sure you know the old saying: "The more things change, the more they stay the same." It's still TRUE!"...changes in society and technology..." is the same type of flawed logic that liberal gun-haters love to trot out. Good ol' lib actor Susie Sarandon spouted that nonsense at the phony "Million Mom March."
FROM http://historymatters.gmu.edu/d/5200/ "Actress Susan Sarandon reminded the audience that the Second Amendment was a product of a different world where a musket, not an Uzi, was the weapon of choice of a well-regulated militia... There are guns out there that had nothing to do with our forefathers. After affirming her support for the Constitution, Sarandon recommended that those who opposed gun control on Second Amendment grounds be given muskets."
You and Susie seem to have the same talking points, "Mr. (Mrs.?) Visigoth52."
QUOTE: "When the Framers wrote the Second Amendment, we were an agrarian society who had to fight off Indians and criminals with muzzle loaders. Just about every one carried a gun because it could be dangerous even going to town."
Maybe YOU'VE been fortunate enough to live in a region of America where it's not necessary to carry a firearm for your or your family's defense, but I sure haven't. I refuse to be a victim---It's just not my "thing," so I'm armed at all times. What an "overly paranoid, weapons-fixated" wacko I am, huh?
QUOTE: "We had to be our own police and protection."
Hey, we still do. Order a pizza and call the police at the same time. See which one gets there first.
Maybe YOUR local police force has an average response time of only six minutes. That's pretty good. But how many times can you be attacked or murdered in five minutes?
QUOTE: "Now we live in a predominantly urban society, cheek by jowl with others."
Yep! We're just one, big, happy family, all livin' in "harmony and happiness," eh? So, THAT'S why big American cities have such low crime rates! No need for weapons with all that urban, brotherly love, right? (Hey! Wait a minute... how come the cities with the MOST RESTRICTIVE GUN LAWS always have the highest crime rates? Something doesn't make sense there...)
QUOTE: "No right is, or can be, limitless."
There are over 20,000 laws relating to and infringing upon the 2nd Amendment. Did you know that? But for anti-gunners, those 20,000+ laws just aren't enough. "MORE!" infringement is their eternal cry. THEN, we'll finally be safe!
A WISE MAN WROTE THIS: "I am unable to understand how a right can be regulated without being infringed. The language of the present Constitution appears to be plain and unequivocal. It does not say that the right to bear arms cannot be infringed except for the promotion of peace and good order in the community. It says the right shall not be infringed. It is immaterial whether this is wise or unwise. That is what the Constitution says."
Did you get that? No infringement for "promotion of peace." No infringement for "good order in the community." Not even because "Susan Sarandon doesn't care for the thought of firearms in a private citizen's hands."
QUOTE: "...protect yourself with an RPG or a full auto Thompson? Sorry, you have to lower the expectations."
No, my friend. YOU are going to have to dig into factual history and learn a very important, pivotal fact. You might not enjoy it, but you definitely need to know it: The Second Amendment is not about duck hunting. It's ALL about protecting the liberty of the citizens from their enemies, both foreign and domestic. And a selective-fire, Colt M4 (maybe even with a grenade launcher!), A REAL, LIVE "ASSAULT RIFLE" is precisely the type of weapon that warrants Constitutional protection. A Colt M4 or an FN M240 might qualify as THE MOST CONSTITUTIONALLY PROTECTED FIREARM IN AMERICA!
Sorry to scare you, "Visigoth52," but everything I'm telling you is true.
QUOTE: "And, yes, I am a lawyer (and a gun nut) so abuse away if you like."
Uh... you may be considered a "gun nut" by the co-workers at your law firm, but probably not around here. I saw waaaay too many "Handgun Control, INC" talking points pop up in your first post to believe that you truly love the thought of a well-armed citizenry.
Besides, if you actually know how many firearms you own, then you're probably not a TRUE "gun nut." : )
RackEm - Awesome points!
S/he may really be a gun nut, but Visigoth52 falls into the category of what Gav calls Fudds. You know, those who are fine with infringement as long as it's reasonable. Reasonable usually means "don't mess with my wabbit gun and we're cool" (or whatever the Fudds use).
Oh, and as Susan "Jane Fonda II" Sarandon goes, the FF's didn't imagine television either. Where would that leave her if all of us that supported unlimited free speech were given newspapers of the 1775 caliber? Funny thing though, the 2nd is the only one with "shall not be infringed" language.
Forget the Thompson, RackEmPunk got out the Flame Thrower! I'm speechless, you guys have said it all. Bravo!
See. That's why the Constitution is not simple. Different words mean different things to different people, and at different times. To Gaviota: No Navy electrician I ever met could be called dumb. Res ipsa loquitor. To RackEm: First, I do not live in an area that one doesn't need to carry--I doubt if such a place exists any longer--and I would love to have that permit. But our California laws give the right to issue permits to local law enforcement and most of them won't despite a legitimate need. Second, the reality that we are now predominantly an urban society does not mean that we all now get along. Quite the opposite. Put too many rats (or people) in close proximity and they become more violent. Thus, your full auto M4 or bazooka or whatever is less desireable for personal defense because its likely to go well beyond the intended target. Third, you are absolutely correct about the purpose of the Second Amendment. Fourth, Who the hell is Handgun Control, Inc.? Finally, we have a difference on the term gun nut. I have a few, but ascribe to the old idea "Beware of the man with one rifle--he probably knows how to use it." To PVB: It's he. Personally, I don't care what type of firearm you have. The states and the feds do, but I don't. If the laws change, get as many as you want. I'm just too cheap to spend the money necessary to supply the ammo for one. The bashing may now continue. Ain't freedom of speech wonderful?
It should not matter, as a means of self-defense, wheather a person has a single shot weapon or M4. The context of how you use your weapon makes it dangerous, the weapon it self is not dangerous. This is where the message always gets distorted when discussing gun rights. Our speed limit is 70mph, yet we sell cars all day long that have full capability of exceeding that speed. Does the government restrict that? No, because its the person behind the wheel that makes the vehicle potentially dangerous. Same with guns. I can defend my home with a M4, AR15, Thompson or the likes in just as safe a manner as a single shot weapon. I'm in charge of the situation. Just because a weapon has the potential to exceed, in your words, safe application of self defense does not mean it will. Same situation as vehicles. So please stop spreading propaganda that classify weapons as you deem necessary, the responsibility is with the owner/user not the weapon or vehicle.
I guess I'm no longer speechless.
SCOTUS has to share a great deal of the blame for the perpetuation of the anti-gun arguments.If the 2nd amendment was upheld in a strict interpretation, there would be no cause for argument.Societal change or no change, the amendment reads the same.Visigoth 52 owns a gun and clearly has that right. Nuff said.
See. That's why the Constitution is not simple. But it is simple, and was intended to be. My apologies here if this looks personal - too many in the legal profession twist the law in ways it shouldn't be. The "throw it on the wall and see if it sticks" approach to litigation is especially abhorrent. Since the courts have to entertain such cases, outright lying has become acceptable, and proving perjury in a "he said, she said" is nearly impossible. If you are the defendant, How do you prove something never happened? It's nearly impossible. The Constitution is simple, the courts are not.
Different words mean different things to different people, and at different times. Though not so different that a dictionary can't clear it up - that's why we have the things. Again - too many manipulators who stand to gain from a confusing system.
Analogy - a 2000 pp health care plan? The people drafting it have a vested interested in obfuscation of the document and process. Damn near all of them are attorneys. I'm not a Bar hater Visigoth, it's just that the seedier and more manipulative side of the crowd has earned my contempt. Unfortunately, too many in the various legislatures fit that bill. (I probably don't need to tell you since you live in CA.) My point is: It all could and should be a whole lot simpler.
Personally, I don't care what type of firearm you have. The states and the feds do, but I don't. If the laws change, get as many as you want. The states and feds - that's the problem! Actually, you should care, because once we get done debating we should go to the range and compare!! Of course, kinda hard to do on opposite coasts....
Robert J - great point! I wonder what part of the Constitution guarantees that a means of conveyance, or the manner in which it is operated, "shall not be infringed?" Yup - times are different, but "the people" certainly needed their horses, just like "the people" need cars.
I like auto/driver's license comparisons when people talk about "reasonable" regulation, especially with respect to concealed carry. I don't have to stop at the state line and take another driver's test, so why should a pistol be any different? Aaaand, I don't see that right (driving) specifically protected by our founding fathers.
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