Why doesn’t ACLU recognize the 2nd Amendment inalienable RKBA under the U.S. Constitution just

[jody]

as it joins GLBT groups and Atty. Gen. Jerry Brown in fighting to recognize the inalienable right to same-sex marriage under CA’s Constitution?

Attorneys Urge California Supreme Court To Invalidate Prop 8 (3/5/2009)

SAN FRANCISCO - Attorneys for same-sex couples, civil rights organizations and the state Attorney General’s office appeared before the California Supreme Court today to urge the court to strike down Proposition 8, which took away the right of same-sex couples the right to marry. At issue in the case is whether the ballot initiative process can be used to take away a fundamental right only for one group of Californians based on a trait – in this case sexual orientation – that has no relevance to the group’s ability to participate in or contribute to society. Because the case has serious implications for the constitutional rights of all Californians, it has generated unprecedented support from many national and state civil rights groups as well as California legislators, local governments, bar associations, business interests, labor unions, and religious groups. The California Supreme Court, which has struck down several other initiatives in the past, is expected to issue a decision within 90 days.

* * * * * * * * * * * *

The case before the court is unprecedented because no other initiative-amendment has successfully taken away a fundamental right only for a particular minority. Because Proposition 8 would, for the first time, change the Constitution in a way that strips a minority group of its constitutional right to equal treatment under the law, California Attorney General Jerry Brown agrees that Proposition 8 should be struck down. The Attorney General’s office argued that the right to marry is an “inalienable right” that can not be selectively eliminated from one group without compelling reasons.

“The Court has a solemn responsibility to enforce our state constitution and to protect the rights of all people, regardless of popular opinion,” said Elizabeth Gill, a staff attorney with the ACLU of Northern California. “This case isn’t just about marriage, and it’s certainly not just about gay and lesbian couples. If the Court strikes down Proposition 8, it will be protecting the civil rights of all Californians.”

An unprecedented 43 friend-of-the-court briefs, representing hundreds of religious organizations, civil rights groups, and labor unions, and numerous California municipal governments, bar associations, and leading legal scholars, were filed in the case, urging the court to strike down the initiative. Because the issues at stake have such important implications for other minority groups, Raymond Marshall of Bingham McCutchen, who represents the Asian Pacific American Legal Center, the California State Conference of the NAACP, the Equal Justice Society, the Mexican American Legal Defense and Educational Fund, and the NAACP Legal Defense and Educational Fund, asked and was given permission to appear in court today. He argued that allowing Proposition 8 to stand could be detrimental to other minority groups who could easily become the targets of initiative campaigns seeking to take away their rights.

Atty. Gen Brown said: Proposition 8 Should Be Struck Down

Fundamental rights in California are recognized and protected by our constitution, which declares in Article I, Section 1 that "all people are by nature free and independent and have inalienable rights" and "among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

These fundamental premises of a free people were declared when the constitution was first adopted. The initiative process came much later in 1911, when the immediate concern was to give the people power over the railroads, which were seen as having a stranglehold over the legislature. In creating this initiative process, there was no discussion or any evidence of intent to permit a simple majority of voters to take away the pre-existing rights deemed inalienable by Article I.

In 2008, the California Supreme Court was faced with the question of how the values enshrined in Article I apply to same sex marriages. It concluded that the concept of "liberty" includes the right to form the enduring relationship called marriage and that no compelling interest justified denying this right to same sex couples. Just like the right to be free from discrimination in housing, citizens have the right to be free from discrimination in state-granted marriage licenses.

With this Supreme Court decision, same sex marriage has the protection of Article 1 and, like other inalienable rights, cannot be taken away by a popular vote -- whether it be 52% (as was the case in Proposition 8) or 65% (as it was for Proposition 14).

When it comes to “inalienable rights” looks like ACLU and NRA agree in principle that government should protect the minority against the tyranny of a simple majority but ACLU still counts the Bill of Rights as “1, . . .,3, 4, 5, 6, 7, 8, 9”.

IMO the fight for the right to same-sex marriage in CA is not unlike our fight to keep and bear arms in these United States.

Same-sex marriage is an unenumerated right protected by CA's Constitution as Brown says and RKBA is an enumerated right protected by the U.S. Constitution as SCOTUS says.

[zipplewrath]

1. interpretation

The don't agree with the NRA's interpretation of the 2nd, that's all.

[jody]

2. NO, they don't agree with the law of the land, SCOTUS says the 2nd protects an individual right. n/t

[zipplewrath]

3. Recently

Yes, recently. Up until now they had a different interpretation. Since that one, they haven't taken much effort to change their position. And it wouldn't be the first time they'd differed with the justices. Many a 4th amendment case has gone against them lately. They still fight them.

[jody]

6. ACLU did not change its position after the Heller case. It says "The ACLU interprets the Second

Amendment as a collective right. Therefore, we disagree with the Supreme Court’s decision in D.C. v. Heller."

[zipplewrath]

9. I believe I said that

Yes, they have not changed their position on this issue since the recent Heller decision. Nor have they changed their position on the 4tha amendment despite many losses in the SC over the last decade. Fairly consistent I'd say.

[Nicholas D Wolfwood]

4. No one's even offered a bill yet to ban all firearms.

So that kills the comparison to gay marriage.

Furthermore, not even the ACLU would claim that the First Amendment protects free speech without limits, so there goes any argument you might've had with them about things like assault rifle bans.

Sorry, but this is a piss-poor argument against an institution that has, time and time again, defended the Constitution even in cases where they don't agree with the person or issue that needs defending. You must have shot off your leg to stand on.

[jody]

5. Sorry but SCOTUS overturned D.C.'s law that effectively banned firearms for self-defense. n/t

[Name removed]

7. Deleted message

Message removed by moderator. Click here to review the message board rules.

[jody]

8. The Prop 8 case is being decided by the Ca Supreme court. The OP is clear on the issue of

"inalienable right" that ACLU joins Atty Brown in supporting in CA but opposes for the 2nd Amendment.

And your point is....?

[Nicholas D Wolfwood]

10. There is absolutely no good reason to bridge to the two issues.

Try fighting arguments on their merits for a change.

[jody]

12. The issue in both cases is whether the right in question is an inalienable right and not subject to

a constitution or whether it is a legal right and subject to the approval or disapproval of a simple majority vote.

The right to keep and bear arms has been decided, it's a pre-existing or inalienable right, but CA's Supreme Court has yet to decide whether Atty. Gen Brown's argument for same-sex marriage is an inalienable right.

[zipplewrath]

11. Careful

You tip toeing around a thin line. There are inalienable rights, and constitutionally recongnized rights. They are not the same thing, and the right to keep and bear arms isn't presented anywhere in constitutional law, or in history, which would suggest that the 2nd amendment is an inalienable right. The very fact that it was one of the ones mentioned in the Bill of Rights suggested that even at the time there was some question about the breadth of recognition that such a right enjoyed. Life, liberty, and the pursuit of happiness, along with the right to over throw governments weren't seen to be necessary to mention in the Bill of Rights. Speech, religion, self incrmination, the housing of soldiers, these were the things apparently needing specific mention. This would tend to suggest that they weren't amongst the "inalienable" rights considered at the time to exist.

[jody]

13. Sorry, PA (1776) and VT (1777) stated in their constitutions

"A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH OR STATE OF PENNSYLVANIA

I. That all men are born equally free and independent, and have certain natural, inherent and inalienable {VT says unalienable} rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety."

"XIII. That the people have a right to bear arms for the defence of themselves and the state"

SCOTUS recognized those state constitutions in their Heller opinion and said:

c. Meaning of the Operative Clause. Putting all of
these textual elements together, we find that they guarantee
the individual right to possess and carry weapons in
case of confrontation. This meaning is strongly confirmed
by the historical background of the Second Amendment.
We look to this because it has always been widely understood
that the Second Amendment, like the First and
Fourth Amendments, codified a pre-existing right. The
very text of the Second Amendment implicitly recognizes
the pre-existence of the right and declares only that it
“shall not be infringed.” As we said in United States v.
Cruikshank, 92 U. S. 542, 553 (1876), “{t}his is not a right
granted by the Constitution. Neither is it in any manner
dependent upon that instrument for its existence. The
Second amendment declares that it shall not be infringed
. . . .”

[zipplewrath]

14. I understand

But as I say, it was far from universal. It is derivative at best. And that it was one of the original amendments, and not part of the original document, suggests it had a different status at the time.

[jody]

15. If it was derivative, why did the four dissenting justices in Heller say:

"The parallels between the Second Amendment and
these state declarations, and the Second Amendment’s
omission of any statement of purpose related to the right
to use firearms for hunting or personal self-defense, is
especially striking in light of the fact that the Declarations
of Rights of Pennsylvania and Vermont did expressly
protect such civilian uses at the time. Article XIII of
Pennsylvania’s 1776 Declaration of Rights announced that
“the people have a right to bear arms for the defence of
themselves and the state,”

As an inalienable right, it is impossible for PA citizens to have given that right away when they ratified the Constitution nor when they ratified the BOR and just a few months later with contemporaneous knowledge of the 2nd, made minor corrections to the specific right dealing with arms.

[russ1943]

16. why did the four dissenting justices in Heller say.......

Because as Justice Stevens wrote;
“The preamble to the Second Amendment makes three important points. It identifies the preservation of the militia as the Amendment’s purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be “well regulated.” In all three respects it is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneously with the Declaration of Independence.5 Those state provisions highlight the importance members of the founding generation attached to the maintenance of state militias; they also underscore the profound fear shared by many in that era of the dangers posed by standing
armies.6 While the need for state militias has not been a matter of significant public interest for almost two centuries,
that fact should not obscure the contemporary concerns that animated the Framers. The parallels between the Second Amendment and
these state declarations, and the Second Amendment’s omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time……………The contrast between those two declarations and the Second Amendment reinforces the clear statement of purpose announced in the Amendment’s preamble. It confirms that the Framers’ single-minded focus in crafting the constitutional guarantee “to keep and bear arms” was on military uses of firearms, which they viewed in the context of service in state militias.”

Re read the last two sentences.

The point being made by the dissenters in Heller, was that the second amendment ratifiers, even with the knowledge of the Pennsylvania and Vermont Declarations, chose not to use that kind of language for the second amendment.
Why?
Because the ratifiers didn’t have the same non military interests those States spelled out. The ratifiers of the 2nd Amendment had the guarantee for service in state militias as their only focus.

In other words since the authors and ratifiers of the 2nd Amendment all had knowledge of Pennsylvania and Vermont’s existing Declarations they easily could have duplicated that kind of language in the 2nd Amendment. They didn’t because the civilian or non militia protection wasn’t what they were interested in protecting. If the authors ratifiers were interested in protecting civilian non military use of arms they could have done so, they weren’t interested in what Vermont or Pennsylvania’s Declarations stated and they clearly didn’t.


I understand this is a dissent.
Do You?

[jody]

18. Stevens argued that the 2nd did not enumerate an "individual right" but if it didn't then the

inalienable right to keep and bear arms for self-defense clearly stated by PA must be protected by the 9th Amendment as an unenumerated right.

Stevens and the other three dissenting justices by recognizing the right to keep and bear arms stated by PA as an inalienable right are left with only two choices, either RKBA is protected by the 2nd or by the 9th.

[russ1943]

25. Inalienable means "Not able to be forfeited".

Okay, Stevens states the 2nd does not enumerate an individual right.
That in no way means he or the other dissenters agree with your conclusion regarding an inalienable right to keep and bear arms for self defense. He references the Pa. & Vt. states right as an example of a CONTRAST between those states declarations and the 2nd amendment.

Your comment that; “Stevens argued the 2nd did not enumerate an "individual right" but if it didn't then the inalienable right to keep and bear arms for self-defense clearly stated by PA must be protected by the 9th Amendment as an unenumerated right”. …………..
Is convoluted logic. No, PA's Declaration doesn't have to be protected by any Federal action.

No one has ever claimed the constitution’s Bill of Rights protects any of the states declarations.
The Pa & Vt. Declaration of Rights according to the dissenters (and the ACLU) are not what the ratifiers of the constitution intended to protect. They are dissenting with the majority and apparently, your opinion.

They (the dissenters) aren’t recognizing any non military right. The word inalienable doesn’t appear anywhere in the Heller decision. Even the majority decision recognizes the right isn’t inalienable as Scalia wrote.

[jody]

30. I did not state the dissenters agree with my conclusion, I said the majority cited PA/VT

declarations re natural, inherent, inalienable/unalienable right to keep an bear arms for self-defense and declared the 2nd Amendment did protect an individual right.

I also said the minority cited PA/VT declarations re natural, inherent, inalienable/unalienable right to keep an bear arms for self-defense and declared the 2nd Amendment did not protect an individual right.

As far as the law of the land is concerned, the majority opinion was complete.

For the minority however, their failure to discuss the 9th Amendment is very interesting. It is clear the authors of the BOR knew they had not enumerated all rights in the first eight amendments and wanted to protect others not enumerated, hence the 9th Amendment.

If the people had one or more rights protected by the 9th that prompts the question what are those rights?

If the minority is correct that the 2nd does not protect an individual right and they are correct that PA/VT citizens have the inalienable/unalienable right to defend self as stated in the very first sentence of those two constitutions, then surely RKBA is a leading candidate for an unenumerated right protected by the 9th.

Obviously the Heller decision is the law of the land but IMO one cannot read Stevens' dissent joined in by the other three justices and conclude that they say our Constitution does not support RKBA.

IMO all the dissent says is that the 2nd does not support an individual right. :shrug:

[beevul]

23. Speaking of construction, preambles, and dissents...

Compare the free-press clause of the 1842 Rhode Island Constitution: “The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments of any subject.” That language — not unlike the Second Amendment’s — of course does not mean that the right to publish one’s sentiments protects only the press. It protects “any person,” and one reason among others that it does so is that a free press is essential to a free society.

Its been amended over time, but the meaning is still the same.

Section 20. Freedom of press. -- The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be sufficient defense to the person charged.

http://www.rilin.state.ri.us/RiConstitution/C01.html

The way stevens reads the second amendment, he would say that only the press would have the right to publish:

"It confirms that the Framers’ single-minded focus in crafting the constitutional guarantee “to publish” was on press's uses of publishing" would be the parallel.

The right of the people to keep and bear arms shall not be infringed, because a well regulated militia is necessary to the security of a free state. Thats what amendment 2 would say written in modent language. At the end of the day, it is the people, not the government, not the militia, whos right to keep and bear arms shall not be infringed. THAT is the operative restriction placed upon governmental power - see below.


And now onto preambles - heres one for you:



"THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added : And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution..."


http://billofrights.org/

That there is the preamble to the bill of rights. It PLAINLY says that the bill of rights IS a list of declaratory and restrictive clauses, aimed squarely at federal governmental power. And, "shall not be infringed" is clearly a restrictive clause.


Neither you nor stevens read the second amendment in that context.

A dissent against what clearly is - both the second amendment AND its application - is hardly "beneficent", or in the interest of beneficent ends of government institution.


The collective rights interpretation is dead.

Get over it already.

[zipplewrath]

17. Because they agree

The said that because they were supporting the opinion. The issue is about your contention that it was widely accepted as an "inalienable" right. The evidence is mixed at best, especially at the federal level.

[jody]

19. See my post #18. n/t

[zipplewrath]

21. Exactly

You're admitting to the duality. A 9th amendment right would be far more "inalienable" than the 2nd. The truth is that my reading of the 2nd was always a state right, which PRESUMED the existence of a more simple right. The 2nd is not a reference to an inalienable right, but to a constitutionally recognized right based upon their pre-revolutionary experience, much like the right about the quartering of soldiers in peace time. The RKBA is a more fundamental right than the 2nd.

[jody]

31. Discussion on whether RKBA was protected by the 2nd or 9th has been around for years and discussed

in DU's Guns forum since 2001.

Some anticipated the ultimate majority-minority position by suggesting the question addressed by SCOTUS was too narrow, "We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution."

IMO the question could have been "We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment {or Ninth Amendment} to the Constitution."

If the question had been so written, IMO the decision might have been five justices for the 2nd and four justices for the 9th and all nine justices for protected by the Constitution.

[zipplewrath]

33. I tend to agree

I thought for a long time that the NRA was making a mistake pushing for this decision based upon the 2nd. It was far more clearly a 9th amendment case on several basis. Furthermore, a 9th amendment could have been a far more wide ranging decision (or at least potentially less limiting). In the Heller case, for all the victory there was, they went out of their way to strictly limit the reach of the decision, specifically mentioning laws and other considerations that were not covered by the decision. And under the 9th, it would have far greater implications for ancillary considerations such as ammo, tasers, pepper spray, laser sights, etc.

[LAGC]

20. I support the ACLU...

For all the good work they do in regards to upholding the First and Fourth Amendments, but they are dead wrong on their Second Amendment stance. For even if we agree that the Second Amendment is talking about a "collective" (militia) right versus an individual right, we have to keep in mind that what was considered a "militia" back then was every able-bodied adult. So that pretty much makes the individual vs. collective issue moot.

But I wouldn't put too much stock in what Heller said either... for even Justice Scalia pointed out, in writing for the majority, that inferring an "individual right" still leaves plenty of lee-way for "reasonable regulations" on said possession of arms, so all it really does is prevent full-out bans like in Washington, D.C. -- doesn't say much for any sort of gun control short of a full-out ban. So Heller was hardly much of a victory for gun rights advocates...

[yay]

22. Baby steps.

That's the goal behind heller. He want's to do many more cases IIRC.

[Statistical]

26. Oh so wrong. I got to listen to Alan Gura speak.....

Heller is a limited decision because the question before the courts was limited.

It was limited INTENTIONALLY by plantiff to ensure the case was as black & white as possible.

However Heller will be the cornerstone and 20-30 years from now we will look back and see how it started a wave across the courts.

Heller = 2nd is individual right
Incorporation case = 2nd applies to states

Thats starts opening up a whole bunch of interesting suits.

CA "assault weapon ban".
Heller stated that banning an entire class of weapons that have legitimate purpose, are in common use and used lawfully is unconstitutional.

So called Assault Weapons.
1) in common use
2) multiple legitimate uses
3) used lawfully (<3% of crimes involve any rifle).
Seems to fit requirements put forward in Heller.
If "assault weapons" are no more dangerous than semi-auto pistols (legal under Heller), not used in any more crime (actually used about 1/30th as much), and have legitimate purpose why is it constitutional to ban one but not the other?

Expect to see a suit eventually.

Can you tax a right? Courts seem to think you can't. Some locations like NY use excessive fees to infringe on gun rights. Eventually we will see a suit there. Could make all gun fees (permit fees, licenses, background check fees, etc) as common as the poll tax is today.

Similarly Chicago punative registration system will be challenged.
As will "may issue" vs "shall issue" permits once records are analyzed showing this "right" is given only to the well connected, the rich, the famous, the political but not restricted from the masses in "may issue states. How can a right be granted in such a discriminatory manner.

Heller stated that 2nd grants an individual right to self defense. Does self defense end at your property? Likely could be used to sue in areas where CCW is prohibited.

Heller is the beginning. There will be many losses, it will take time but eventually it will cause substantial change.

[LAGC]

27. You seem quite optimistic...

But I might refer you to Section III of the actual decision:

http://www.law.cornell.edu/supct/html/07-290.ZO.html

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.

So I wouldn't get your hopes up that this decision will lead to CCW prohibitions being overturned.

As for the Court challenging a future "Assault Weapon" Ban, the court was eerily silent when it passed the first time, so its hard to imagine them suddenly taking an interest in it if it happens again... fortunately we have enough Dems in Congress who remember what happened in 1994 (Republican landslide) after the first AWB to see that it doesn't happen again.

[Statistical]

28. The court is generally (not eerily) silent unless there is a petition

On CCW:
Reason CCW was considered constitutional is that in 19th century most localities allowed OPEN CARRY. No need to hide your weapon if the general and customary thing is to carry it in the open. Today with restrictions on open carry CCW is a logical substitute. The courts in 19th century were never asked to consider if a complete prohibition on weapons outside the home (open or concealed) was constitutional. If they were likely we would have different decision.

On AWB:
Since there was no Heller at the time that even confirmed that 2nd does indeed protect an individual right there was no standing to sue. Filing a lawsuit that the AWB is unconstitutional before even proving the 2nd means what we know it means is getting cart before the horse.

Anyways the point is not that every avenue will be successful but more it will be attacks on a variety of fronts. Some will be loses but some will be wins and the momentum will be behind restoring rights. Even better is the courts found violations of the 2nd to be civil rights violations. Plaintiff lawyers can sue to recover fees after successful case. So NRA sues Chicago over gun ban. Chicago loses. NRA lawyers sue for recovery of fees and win. NRA ultimate cost $0.00. Chicago ultimate cost = defense + recovered fees.

Maybe I am wrong. Maybe it does mean nothing but like most major decisions it will take years (decades) for full ramifications to be felt.

[LAGC]

32. I hope you're right.

Public sentiment is certainly changing for the better:

http://www.gallup.com/poll/117361/Support-Gun-Control-Laws-Time-Lows.aspx

Support for stronger gun control is declining. That can't just be from Republicans coming around on the issue, but changing views from Democrats and Independents as well who are slowly coming to realize that gun control in general is a futile effort.

[LAGC]

24. While we're comparing "gay rights" to "gun rights"...

http://www.pinkpistols.org/

[X_Digger]

29. I just signed up with the local chapter to help new owners. n/t

[russ1943]

34. ACLU STAYS TRUE TO ITS ANALYSIS.

ACLU POSITION
Given the reference to "a well regulated Militia" and "the security of a free State," the ACLU has long taken the position that the Second Amendment protects a collective right rather than an individual right. For seven decades, the Supreme Court's 1939 decision in United States v. Miller was widely understood to have endorsed that view.
The Supreme Court has now ruled otherwise. In striking down Washington D.C.'s handgun ban by a 5-4 vote, the Supreme Court's 2008 decision in D.C. v. Heller held for the first time that the Second Amendment protects an individual's right to keep and bear arms, whether or not associated with a state militia.
The ACLU disagrees with the Supreme Court's conclusion about the nature of the right protected by the Second Amendment. We do not, however, take a position on gun control itself. In our view, neither the possession of guns nor the regulation of guns raises a civil liberties issue.
ANALYSIS
Although ACLU policy cites the Supreme Court's decision in U.S. v. Miller as support for our position on the Second Amendment, our policy was never dependent on Miller. Rather, like all ACLU policies, it reflects the ACLU's own understanding of the Constitution and civil liberties.
Heller takes a different approach than the ACLU has advocated. At the same time, it leaves many unresolved questions, including what firearms are protected by the Second Amendment, what regulations (short of an outright ban) may be upheld, and how that determination will be made.
Those questions will, presumably, be answered over time.

http://www.aclu.org/crimjustice/gen/35904res20020304.html

[LAGC]

35. Their analysis was based off of US v. Miller...

Which never addressed the issue of who or what the militia is (our Founding Fathers considered the militia to be every able-bodied adult citizen, not an organized "militia" like we think of National Guards today) but rather just the issue of whether a sawed-off shotgun was protected by the Second Amendment or not. For the ACLU to base their "collective right" argument off of this case is disingenuous at best, and hypocritical considering that ALL nine of the SCOTUS justices ruled in favor of an "individual right" interpretation of the Second Amendment in the Heller case, only disagreeing 5-4 in the scope of what restrictions can be placed on that "individual right."

While I still support the ACLU as a dues-paying member for all the good work they do in regards to the First and Fourth Amendments, I make my voice heard as part of a growing internal dissent on this issue. They really are shooting themselves in the foot by taking this stance. Just take a look at their blog on the issue, and look how many people have been turned away from the ACLU simply because of their position on the matter:

http://blog.aclu.org/2008/07/01/heller-decision-and-the-second-amendment/

You can't tell me they are all just right-wing trolls either... there are many members who have failed to re-up their membership and potential new members who have failed to contribute/join simply because of the ACLUs lack of regard for such a fundamental civil liberty that is as important as the rest. And that is a real shame, because with all the pressing civil liberties concerns facing our nation today, we need all the support we can get. We can't afford to be turning people off at a time like this.

[russ1943]

37. That just isn't true.

You posted;
"Their analysis was based off of US v. Miller...
For the ACLU to base their "collective right" argument off of this case is disingenuous at best, and hypocritical."

The point you have missed or chose to ignore is the rather clear statement by the ACLU which I posted; “our policy was never dependent on Miller. Rather, like all ACLU policies, it reflects the ACLU's own understanding of the Constitution and civil liberties.”
Again………………………..”Our policy was never dependent on Miller”.
So in response you reply; “Their analysis was based off of US v. Miller...”

Also you posted;
"ALL nine of the SCOTUS justices ruled in favor of an "individual right" interpretation of the Second Amendment in the Heller case, only disagreeing 5-4 in the scope of what restrictions can be placed on that "individual right."

This claim is repeated on this and other “gun boards” as if it is a fact.

Have you read the dissents?

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting………….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……………”
The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia……………

JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE SOUTER, and JUSTICE GINSBURG join, dissenting.
The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by JUSTICE STEVENS—namely, that the Second Amendment protects militia-related, not self-defense-related, interests…………….

While Stevens states that;” Surely it protects a right that can be enforced by individuals” he nor Suter doesn’t say or in any way imply anywhere in their dissents that they were in favor of an "individual right" interpretation the 2nd Amendment. Quite the contrary he states; “The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia.” Breyer in his dissent agrees with Stevens stating: “that the Second Amendment protects militia-related, not self-defense-related, interests.”
Both Stevens and Bryer’s dissents which Souter and Ginsburg joined, clearly state the 2nd Amendment protects militia related interests.

I would submit that stating “ALL nine of the SCOTUS justices ruled in favor of an "individual right" interpretation of the Second Amendment”, is at least, a distortion.

[jody]

38. See #30 "IMO all the dissent says is that the 2nd does not support an individual right."

"If the minority is correct that the 2nd does not protect an individual right and they are correct that PA/VT citizens have the inalienable/unalienable right to defend self as stated in the very first sentence of those two constitutions, then surely RKBA is a leading candidate for an unenumerated right protected by the 9th.

Obviously the Heller decision is the law of the land but IMO one cannot read Stevens' dissent joined in by the other three justices and conclude that they say our Constitution does not support RKBA."

[russ1943]

39. Does that mean we agree on something?

I’ve seen your # 30 and saw no reason to comment.

While I completely disagree with your conclusions and most of your posts on this subject, you appropriately included the term IMO, which I assume means “in my opinion” so I wouldn’t nor could I dispute your opinion.

HOWEVER;
I (for one) can read Stevens dissent (joined by the other 3 justices) and conclude that the four dissenters agreed and two clearly wrote that the Second Amendment was adopted to protect the right of the people of each the several States to maintain a well-regulated militia……………
The dissenters supported a right to keep and bear arms for militia related, not self defense related, interests.
IMO, It isn’t just a RKBA, it is the connection /relationship to the militia that is the primary basis of the dissents.

Your insistence that the wording in the PA & VT Declaration of Rights is of any value or relevance other than to provide an example of a CONTRAST between those states declarations and the 2nd amendment, in the dissents, is bordering on the bizarre.

My post #37 to which you referenced, was in part a response to another poster’s comment re. the statement;
“ALL nine of the SCOTUS justices ruled in favor of an "individual right" interpretation of the Second Amendment in the Heller case”.

You titled your #38 See #30 “"IMO all the dissent says is that the 2nd does not support an individual right."
I agree, the dissent says that "the 2nd does not support an individual right”.

The previous poster to which I responded (#37 ) claims all nine ruled in favor of an individual right interpretation.

[jody]

40. PA & VT constitutions are relevant because the issue is pre-existing or inalienable/unalienable

rights.

If your position is that such rights do not exist and all rights are subject to the vote of a simple majority, please make your case.

SCOTUS has recognized from the beginning that certain rights are pre-existing or inalienable/unalienable and government can infringe upon those rights only for the overwhelming good of society.

Pre-existing rights do not depend upon our Constitution for their legitimacy and state constitutions that declare such rights are relevant since some rights are enumerated in the first eight amendments and others are unenumerated but protected by the Ninth Amendment.

You say "It isn’t just a RKBA, it is the connection /relationship to the militia that is the primary basis of the dissents."

No, the issue before the court in SCOTUS was whether the 2nd protected an individual right. Five justices said "yes" and four said "no".

Breyer and Stevens say the 2nd does not protect an individual RKBA, i.e. not an enumerated right, but after acknowledging that individual RKBA is an inalienable/unalienable or pre-existing right by quoting PA & VT constitutions, they ignore the Ninth Amendment that protects unenumerated rights.

[hansberrym]

42. The deniers are running away from Heller as fast as they can.

Strawman:
I would submit that stating “ALL nine of the SCOTUS justices ruled in favor of an "individual right" interpretation of the Second Amendment”, is at least, a distortion.

I would submit that you are not addressing what was said, but instead setting up a strawman. You earlier correctly quoted the poster you disagree with, but then left off the rest of his statement when constructing your above closing strawman argument.

All nine justices did indeed find for an individual right and they stated so plainly (below), defining what they meant by individual right. The difference then is in the scope of the individual right. The majority found for a RKBA that includes self defense, while the dissent found for an individual RKBA only in service of a state organized militia.



From Stevens' dissent:
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.


From Breyer's dissent:
(1) The Amendment protects an “individual” right—i.e.,
one that is separately possessed, and may be separately
enforced, by each person on whom it is conferred. See,
e.g., ante, at 22 (opinion of the Court); ante, at 1 (STEVENS,
J., dissenting).



The deniers are running away from Heller because there is no wriggle room left for them.
In the past, when the deniers found themselves out of ammo for a particular argument against a broad individual RKBA, they would simply move on to a different interpretaion. But in the wake of the Heller decision they can't simply jump back to the States' Rights(Hickman), and they can't jump back to the purely Collective Rights interpretation(Silveira). They are now stuck with the 9-0 Supreme Court decision on the question on whether the RKBA is an individual right(as defined above by the dissent), and are left to argue that the SCOPE of the individual RKBA is limited to service in a state militia. Note that this very limited individual rights reading was flatly rejected in Silveira and so the dissent in Heller can not even claim fidelity to circuit precedent.

In short, the deniers have painted themselves into a corner.

[Raskolnik]

36. Because the ACLU's leadership is embarrassed by the Second Amendment,

so it engages in some serious logical gymnastics to justify ignoring it.

God bless the ACLU and all the good work that they do, but they missed the boat on this one.

[Deep13]

41. different constituencies nt

[jody]

43. " different constituencies" but there are 84+ million gun-owners vs. 8+ million GL among the 210

million citizens eligible to vote.

Brown argues same-sex marriage is an inalienable right and in CA so is RKBA, "SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

If Brown's opinion prevails, then that is a blow against Feinstein/Boxer arch enemies of those who defend all inalienable rights whether enumerated or unenumerated including the right to keep and bear arms for self-defense.

It would be interesting to see Feinstein/Boxer campaign to represent the citizens of California and be forced to admit they oppose California's Constitution.