General Discussion
In reply to the discussion: The central right identified in the Heller decision is [View all]jimmy the one
(2,844 posts)dairydog: Heller did not reverse 200 years of history. ... Cite a case, please. Find a case, from 1812 or earlier, in which a Court states that the right to keep and bear arms is communal, not individual. Any court case will do (Federal preferred), but I want to see the text. Higher level courts would be preferable.
Prior to 1812 there was yet no real dichotomy, or prior to approx 1830 no offical dichotomy betwwen 'individual' or 'militia based' RKBA, so I can't prove your 'negative', so to speak. I can, of course, cite some federal 2ndA court cases of more recent times, as you suggest, starting with bar room dancer april love vs. sgt pepersack, maryland:
Sept, 1990, April Love tried to purchase a handgun at a shop in Prince George's Co, Maryland. She filled out an application required by state law. All of her answers to the questions posed were true and correct.
--Maryland law gives the police seven days to deny the application; if it does not act, the dealer may legally sell the firearm... {Md police} Corporal .. discovered that Ms. Love had been arrested on four occasions..as a stripper ..been arrested twice for participating in an obscene show and indecent exposure.. battery.. resisting arrest. She was convicted of only one of these crimes--a misdemeanor--though disposition of the charges was not apparent on the computer printout.
... Without further investigation, Pletcher recommended that the application be denied.. Love exhausted state administrative remedies without success, and then sued in state court. She won...Love then filed this suit--alleging violations of substantive due process, a "right to contract," and {2A}-- defendants {Md} moved to dismiss, and the district court granted the motion. Love appeals.
4th circuit, 1994: Citing law review articles, Love argues that she has an individual federal constitutional right to "keep and bear" a handgun, and Maryland may not infringe upon this right. She is wrong on both counts. The Second Amendment does not apply to the states. Presser v. Illinois, (1886); Cruikshank, (1876). Moreover, even as against federal regulation, the amendment does not confer an absolute individual right to bear any type of firearm.
In 1939, the Supreme Court held that the federal statute prohibiting possession of a sawed-off shotgun was constitutional, because the defendant had not shown that his possession of such a gun bore a "reasonable relationship to the preservation or efficiency of a well regulated militia." United States v. Miller (1939).
.. Since then, the lower federal courts have uniformly held that the Second Amendment preserves a collective, rather than individual, right.
The courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms which must bear a "reasonable relationship to the preservation or efficiency of a well-regulated militia."
Love has likewise not identified how her possession of a handgun will preserve or insure the effectiveness of the militia. The judgment is affirmed. AFFIRMED.
http://www.guncite.com/court/fed/47f3d120.html
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dairydog: The majority listed a number of rights that African-Americans would acquire should they have American citizenship:
"It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."60U.S.393,417
dairy dog: Now, either the majority pulled these rights of American citizens out of its ass, so to speak, or it looked to the text of the Constitution to figure out what rights it protected.
Or, it possibly combined 'rights' from both the bill of rights, with rights granted by states themselves. If missouri had a state RKBA, that likely would have sufficed I believe, to justify what this supreme court wrote (if not the other 'rights' as well).
Or, as free blacks, they could keep & carry arms with them, as well as join militia. Inclusion, or right, to join militia would've been incongruous with what this supreme court was trying to fearmonger about blacks, so it of course would not've been mentioned by them since it would've been a positive aspect.
This supreme court was obviously trying to fearmonger 'blacks with guns', running around shooting up.
.. By the way, there was no 'right' to carry arms, but to bear arms, which of course you would argue further to bolster your own points. I suspect this supreme court meant that, since blacks would then be in the state militia, they could possibly have a gun, & would not be disallowed from carrying it about, as other militia members could (the 'narrow' i-rkba).
As I said, by the 1830s this dichotomy between 'individual' & 'militia' was taking hold, & existed by the civil war (tho not so brazenly as today), so this supreme court could've leant to that former interpretation, being perhaps mostly from i-rkba states.
dairydog: I think your argument or implied argument that these rights, because the Court did not directly cite them to specific protections, were simply court creations is completely flawed. It seems far more likely that the Court cherry picked examples of Constitutional rights of American citizenship, which it considered especially terrifying should they protect African Americans, in order to buttress its central argument that the Founders did not intend to grant US citizenship to them.
I questioned your posted phrasing of what you just wrote, with the inclusion of, um, period dots (tipotongue) interspersed, which lead to thinking 'out of context'. I asked for a link, you provided improved context, so I'll have to review. In itself it is not conclusive of a rejection of the past history of largely militia RKBA interpretation by higher courts. Some states in early 1800s granted individual rkbas, others clearly militia based.