First Circuit Court of Appeals: No Right to Bear Arms Outside the Home in Massachusetts

courtesy zazzle.com

“(T)he First Circuit of the US Court of Appeals ruled that the right to self-defense is at its “zenith inside the home,” and the right is “plainly more circumscribed” outside.

“The “core right” protected by the Second Amendment is for citizens to use arms in defense of home, the court said in its decision. “Public carriage of firearms for self-defense falls outside the perimeter of this core right.”

“The state’s firearms license statute “takes into account the heightened needs of some individuals to carry firearms for self-defense and balances those needs” against public safety demands, the court added.” – Gintautas Dumcius in Firearm restrictions in Boston and Brookline don’t violate Second Amendment, appeals court says

comments

  1. avatar barnbwt says:

    Meanwhile, “6-3 pro-gun majority” SCOTUS fails to grant cert to the latest shall-issue case coming out of California…

    1. avatar LKB says:

      What non-practioners often fail to grasp is how truly hard it is to get the Supremes to grant cert on anything, even where there is a clear conflict between the circuits over obvious federal law issues. Except for truly exceptional cases, the SCt just does not grant a cert petition if there are procedural nits to be picked with the case. That’s just the way it is.

      As I mentioned here (https://www.thetruthaboutguns.com/2018/10/ttag-contributor/kavanaugh-and-the-supreme-court-whats-next-for-the-second-amendment/), the Rothery case had no small number of procedural hickeys that made it a less-than-ideal test case. Thus, while I’m disappointed with the decision to deny cert on it I’m not surprised.

      Similarly, while the instant case has some awful dicta and reasoning, it also appears to have some procedural issues that I suspect may make it less than an ideal cert candidate.

      Roberts and likely Kavanaugh are going to want to wait for an ideal 2A test case. Best bet right now is New York State Rifle and Pistol Association v. City of New York, given that the NYC laws are so draconian as to amount to a blanket denial of 2A rights. We should have a decision on whether they will hear the case early next year.

      1. avatar TheUnspoken says:

        While they certainly can’t hear every case, it seems like is they will only hear the perfect case so that they can expand rights nationally, then they are just trying to legislate from the bench rather than seeking justice. If the lower court is wrong and citizens rights and being unconstitutionally abridged, they need to step in and defend the Constitution. This isn’t an exercise in trying to make up new law, they should be clarifying and defending the law and rights already in place.

        1. avatar LKB says:

          I share your frustration and don’t disagree with your sentiment. Nevertheless, that’s just how it is . . . it’s always been extremely hard to get the Supreme Court to take *any* case — even ones that don’t present procedural “outs” — and that reality isn’t going to change.

          Another case to watch right now is Young v. Hawaii. Rumblings I’m hearing indicate that CTA9 is not likely to grant en banc reconsideration, because they are afraid that doing so and reversing the panel opinion would likely present an ideal 2A test case for Supreme Court review. [Young, like Heller and MacDonald, is a near-perfect plaintiff for a 2A test case.]

          OTOH, the appeal in the Young case was originally filed with the Ninth Circuit in 2012 . . . so I won’t be surprised in the anti-2A forces just try to avoid things by stringing it out for a few more years, rather than actually decide it one way or another. (Hot legal topic right now is whether the Young opinion is binding precedent in Ninth Circuit unless or until en banc rehearing is ordered.)

        2. avatar Anymouse says:

          An imperfect case can get a ruling one of the ancillary issues. Look at Masterpiece Cakeshop, for example. They ruled for Jack Phillips, but on the Colorado Civil Rights Commission didn’t handle his case properly. They didn’t overturn anti-discrimination laws. They didn’t rule that religious objections exclude someone from anti-discrimination or public accommodations laws. They did not expand free speech or religious liberties. In fact, he’s got another lawsuit going now because he refused to make custom pink and blue transgender celebration cake for a Denver lawyer.

        3. avatar Mark N. says:

          LKB: Young is binding in Hawaii, but it is questionable if it is binding anywhere else since it involves the interpretation of a specific Hawaii carry statute. The case might apply to California (since the state is “may issue” concealed carry (which is not recognized as a constitutional right) and an urban area open carry ban), but no other state in the circuit has such restrictive carry provisions. Hawaii’s statute is all “may issue,” but as I understand it Young contended that the police chief in his county will not consider an open carry permit except for security guards. At the last minute, just prior to the filing of the petition for rehearing, the Hawaii Attorney General filed an opinion that the may issue law applies to all equally. Thus it generally presents the same question that the Mass case does: whether carry outside the home may be regulated in the interest of public safety.

          The petition for rehearing will not be held for political reasons, since there will be no changes in the Supreme Court in the next couple of years that could see the seating of a more liberal justice.

      2. avatar MarkPA says:

        @LKB: Thank you for your comments. Apparently, you know more than we laymen. I (and I assume others) would very much appreciate you elaborating on the fine points at issue in these cases. Just what are the “procedural” issues that make some cases less than ideal? How is it that, e.g., the 9’th Circuit can simply sit on the request for an en banc ruling indefinitely?

        What is it that we have to do to inspire SCOTUS to grant cert?

        I certainly can appreciate that SCOTUS isn’t going to grant cert to many cases. Moreover, I can also appreciate how it is that the conservative justices would bide their time until they could be confident of a solid 5 votes to uphold a facet of the 2A right. It is much better for us to wait a long time to win than to get cert on a case that turns against us.

        One hypothesis would seem to be this: There are 4 solid liberal votes against supporting any facet of 2A rights. Therefore, the conservatives need to be absolutely sure that none of their “caucus” will get squishy at the last minute and vote with the liberals. Given the collaborative process of writing a majority decision, there is also the possibility that to keep the 5 vote conservative caucus together that the majority opinion would fear that it might have to ceed too much ground making a weak “win” for the 2A. By way of a purely fanciful illustration, suppose the squishy justice would only join an opinion that the People have a right to bear outside the home only to the limits of “their own lands and tenements”. In some sense, that would be a small win; however, it would be so small a win that it would actually set-back the cause by establishing a precedent that the limit beyond the home is severely constrained.

        Do we have to wait until yet another conservative is appointed and confirmed? Might we have to wait for 2 more?

        Should we be looking for cases that seek minuscule advances that are almost meaningless, but still move the ball forward? E.g., many states are Shall-Issue but for residents only. These are also generous with reciprocity. Nevertheless, the gun-free-schools act makes it a federal offense to pass through a school zone without a CWP issued by the state where the school is located. Thus, e.g., an interstate truck driver, is denied equal protection as a non-resident to obtain a permit in a state through which he must travel in interstate commerce. As a practical matter, interstate travelers aren’t being persecuted for passing through school zones in states where they don’t have permits. So, this is a minuscule issue. Nevertheless, if SCOTUS were to rule on such an issue it would seem to advance the right without much danger in creating a precedent circumscribing our right.

      3. avatar barnbwt says:

        I’m fully aware of that; it’s just that we’re still in a “wait and see” mode as far as SCOTUS’ priorities now that they have a full bench. Scalia wasn’t exactly wrong in suggesting the issues should be settled legislatively vs. judicially (though I think sufficient time has now passed to show that the issue is NOT going to settle itself, and districts will simply become more and more diverged as to their treatment of the 2nd amendment). There’s plenty of arguments for and against SCOTUS hearing this latest case, now. What is certain is that the freedom floodgates have not opened just yet. Wait and see…

      4. avatar Geoff "Mess with the bull, get the horns" PR says:

        “Except for truly exceptional cases, the SCt just does not grant a cert petition if there are procedural nits to be picked with the case. That’s just the way it is.”

        OK, if that’s ‘the way of the legal landscape’, would it not make sense for our side (the 2A Foundation, etc.) to craft carefully-constructed challenges with all the relevant ‘i’s dotted and ‘t’s crossed and start shoving them into the lawsuit pipeline?

        Or am I (probably, since I’m not particularly bright) missing something obvious?

        1. avatar LKB says:

          They are doing exactly that.

      5. avatar Chessie says:

        I’ve an interesting conundrum for you. Our Pa. State Constitution states ” The right of a citizen to be armed is not to be questioned”. I’ve spoken to my state Reps about this, asking how an individual who is elected and who takes an oath to support and defend our Constitution can introduce a bill which clearly violates the Constitutional protection given the citizenry without violating their oath. I then ask them what is on any application for any type of firearm permit. Answer was crickets chirping and a bizarre rolling of the eye balls.

      6. As I mentioned here (https://www.thetruthaboutguns.com/2018/10/ttag-contributor/kavanaugh-and-the-supreme-court-whats-next-for-the-second-amendment/), the Rothery case had no small number of procedural hickeys that made it a less-than-ideal test case. Thus, while I’m disappointed with the decision to deny cert on it I’m not surprised.

        The plaintiffs in that case received a permit, thus mooting it.

      7. avatar RedMartian says:

        What next? No right of:
        Freedom of religion
        Freedom of speech
        Freedom from search
        Freedom from seizure
        Freedom of association
        Freedom of press
        Freedom to assemble
        Freedom
        Outside the Home

  2. avatar The Rookie says:

    “Massachusetts Attorney General Maura Healey, who has pushed for stricter gun laws, hailed the ruling in her own statement.”

    Well, of course she did.

    *sigh*…

    1. Think further back in time! The Commonwealth of Massachusetts passed the “Disqualification Act” in 16 February 1787, as a responds to dealing with the “Shays’ Rebellion” from August 1786 to June 1787. The United States FIRST Firearms Control Law…

      1. avatar Sam I Am says:

        “…the “Disqualification Act” in 16 February 1787, as a responds to dealing with the “Shays’ Rebellion” from August 1786 to June 1787. The United States FIRST Firearms Control Law…”

        Kinda, sorta, not actually….

        The Act was established before there was an entity called “the United States”. Shay’s rebellion took place prior to initiation and ratification of the eventual Constitution of the United States. The Act was a State law, as fitted the idea of sovereign States. At the time of the Act, there was no central government as we think of it. The central body was called the Continental Congress. Representatives of the States met in conference to establish whichever/whatever laws they saw necessary to keep the sovereign States from going to war with each other, and sort out who would be allowed to do what inside the confederation.

        All things considered, the Act was not a first law of the United States, but the reaction by the member States of the confederation to respond to acts that had not been codified as permitted by the central organizing body – the Continental Congress. Shay’s was one of the incidents that underscored the insufficiency of the confederation, leading to the compact we call the constitution.

  3. avatar Shire-man says:

    Takes into account the heightened need to keep poor people from carrying firearms is what they really mean.

  4. avatar Big Bubba says:

    @barnbwt, I can only hope that SCOTUS is waiting until there is a wide sweeping case that will make a major impact! I hope!

    1. avatar MarkPA says:

      @Big Bubba: I think that asking for a big bite of the apple is actually the most counter-productive approach.

      We think of the justices as falling into 2 camps: liberals; and, conservatives. What do liberals tend to do? Why, they tend to be very aggressive in disregarding the well-founded reasoning of others and charging off to take larges bites of the apple in the direction they desire? Doesn’t this accord with our experience of this mind-frame? What do conservatives tend to do? Why, they tend to be very cautious to preserve respect for what has come before them? To make only the smallest changes possible? To avoid the accusation of legislating from the bench? Doesn’t this accord with our experience of this mind frame?

      If this sense of the mood of the liberal vs conservative justices is correct then we will get nowhere trying to obtain cert on cases that seek big bites of the apple. The conservatives won’t want to give us much in each bite. We can make progress only where we seek the most minuscule advances based on well founded reasoning based on other precedents.

      For example, publishing 3D gun code rests on the 1A. Issuing non-resident CWPs rests on the Constitutional mandate that states must treat non-residents equally as they treat their residents. It’s much easier for SCOTUS to extend the rights under the 2A when the reasoning rests in large part on reasoning concerning other rights. It’s rather like laying courses of bricks on underlying courses. The bricks are laid in an overlapping pattern so that the upper brick rests 1/2 on each of 2 lower bricks.

    2. avatar barnbwt says:

      I mean, I’m all about hope; you can sit on your ass all day & hope. If you’re too lazy to hope, you a lazy muthafukka. 😉

    1. avatar Baldwin says:

      Outrageous??? RTKABA in the home shall not be infringed!

      1. avatar Nigel the expat says:

        RTKABA in the home, with a single-shot, break open firearm. The components must be stored SEPARATELY in DOJ-approved storage devices, with appropriate biometric single-user-only access.

        Please see the listing of state-approved ammunition that may be purchased. A limit of 1 round per month, following all mandated background checks, social media checks, psychological exams, and required fees. No more than 3 rounds may be possessed at one time. Possession of more than 3 rounds (of any caliber or combination) is a crime punishable by 5 years in a state correctional facility, with no possibility of parole.

        Please note that your single-user firearms authorization permit will be revoked upon any report by any third party that you may be a danger to yourself or others, if your political subdivision is more than 5% minority in population, is within 5 miles of a school or government facility. No firearms are allowed in a home with a child under the age of 25. All cohabitants must sign a waiver of possession for you to posses a firearm upon the same premises as another cohabitant. Any cohabitant can revoke this permission at will. Inspection of the premises, the required storage devices, and your single firearm may be conducted at any time, without notice. Additionally, you are required to submit yourself to random inspection and psychological testing on demand. Failure to meet any of the above requires is a felony, punishable to by no less than 5 years in a state penitentiary.

        etc
        etc

        But, hey, you still have your 2nd Amendment rights!

        1. avatar Geoff says:

          Muskets.

  5. avatar frankw says:

    It never fails to amaze me how lawyers can twist plain English to mean the exact oposite of original intent. ” the right to keep and BEAR arms..” Bear, as in possess, carry. Too hard to understand?

    1. avatar .357fun says:

      “We support the 2nd amendment BUT, you need to sit quietly in your tiny box if you want to bear arms.”

      1. avatar WARFAB says:

        That should mean NFA rules don’t apply inside the home right?

        1. avatar MarkPA says:

          That’s an interesting thought! Now, how could we make the most of it?

          To answer this question, we ought to ask how we might screw-the-pooch.

          Consider an NFA-in-the-home case arguing for a destructive device. I have a right to a bomb or a 20mm cannon for home defense! The ATF can’t force me to wait a year; and PA can’t prohibit me these “arms” outright. Do you think that SCOTUS might be eager to jump on such a case?

          How about the Hughes amendment for my right to make and keep-in-my-home a full-auto sten gun?

          Wouldn’t we have a better shot with a case about an SBS or SBR for home defense?

          Better still, how about a silencer? There is no legislative history as to why silencers were taxed and registered under the NFA’34 in the first place. It’s not abundantly clear that a silencer is an “arm” (whereas a muzzle break or flash suppressor are NOT “arms”.) If a silencer is an “arm” it enjoys 2A protection. May Congress tax a silencer/safety-device/arm $200? May Congress indulge its ATF-NFA-Bureau the inefficiency of making me wait 1 year for a tax stamp before I may make a silencer to keep in my home? Do I have a compelling right to be able to take-up my arm without turning-on my electronic hearing protection to listen for an intruder in my home and still be able to recover my hearing after firing 1+ rounds in an enclosed area?

          Ultimately, I think SCOTUS would not see much merit in taking up this case. Nevertheless, I think we could mount such a case in many District courts in many Circuits. I think we should have a sporting chance of winning something in 1+ Circuit.

          What might that be?

          One possibility might be that a silencer is not an “arm”; and, so, it doesn’t enjoy 2A protection. What could that mean? That this artifact can’t be construed to be in any way “dangerous” such as might be the case with guns, explosives, pharmaceuticals, poisons, etc.? That they must be treated on a par with safety-equipment? As medical equipment? Perhaps they may be taxed; just as anything else may be taxed. However, they wouldn’t have to be registered; or, that the registration couldn’t be delayed unreasonably.

          Or, a silencer is a 2A “arm” and then the constitutionality of such a tax of $200 would come into question. Why a $200 tax on silencers but an 11% tax on typical firearms? Why a 1-year waiting period in lieu of the treatment accorded to other firearms?

          Assuming we get some-sort-of-a “win” in 1+ Circuits, yet don’t ever get cert from SCOTUS, we would be in an interesting place. We would have a long-standing circuit split. E.g., the ATF would’t be able to uphold the NFA on silencers in the states covered by that circuit. E.g., maybe we could file a Form-1 with a $200 check and immediately construct a silencer to be kept within the home. Small beer; but, it would be a long-standing chink in the armor of the NFA’34.

          There might be something to this idea; provided we pick just the right angle of attack such as silencers or AOWs.

    2. avatar LarryinTX says:

      One more time, 2A is 27 words long. Will someone (appeals court operator or not) point out where exactly “self defense” is mentioned within those 27 words? These are the actions of *tyrants*, treating a hundred million people as if we cannot read, have no choice but to depend on the beneficent auspices of our betters, the Lords and Ladies of America.

      1. avatar MarkPA says:

        Kindly read the Heller decision. You will find the answer explained there.

  6. avatar Kap says:

    following this misguided logic, then our fore fathers would have been massacred when outside their cabins either that or the home walls would have covered 160 Acres, boy would that roof been a bitch!

    1. avatar possum says:

      Besides pouring concrete,One of my least favorite jobs was roofing, that’s a lot of shingles.

  7. avatar Chip Bennett says:

    “The “core right” protected by the Second Amendment is for citizens to use arms in defense of home, the court said in its decision. “Public carriage of firearms for self-defense falls outside the perimeter of this core right.”

    Do they write this drivel with a straight face? The core right was articulated as being comprised of two facets: to keep arms and to bear arms. If one can only be lawfully keep arms in the home by definition one cannot bear those arms.

    To claim that “bearing” arms implies doing so only in the home is to gut the second amendment – both the “core right” and the articulated state interest in protecting that core right against infringement. One cannot defend the security of a free state from inside one’s home.

    Perhaps one might argue that it is only in carrying out the articulated state interest – that is, defending the security of a free state – that the second amendment confers the right to bear arms outside the home. But that argument is illogical, because the second amendment does not confer a right; rather, it recognizes a pre-existing right – a right that is an endowment by our Creator. The second amendment cannot expand on such a right.

    McDonald and Heller both held that the exercise of the right to keep and bear arms was most acute in the home; but those assertions in no way implied that the exercise of the right to keep and bear arms was exclusive to the home. In fact, quite the contrary: by stating that the right was most acute in the home, the Court implicitly acknowledged the existence of the right outside the home.

    1. avatar MarkPA says:

      Heller instructs that self-defense was the core of “the right” “of the People” to “keep and bear arms”.

      The problem addressed in this “core” dicta was whether the “militia clause” was controlling; i.e., limiting. By making a determination that self-defense was the “core” of that right, the “militia clause” was reduced in it’s position as not being controlling. (Whether that holding – that the militia clause is NOT controlling – continues to be respected in future SCOTUS rulings remains to be seen.)

      Now, then, simply extrapolating that a finding that “the right” includes the purpose of “self-defense” doesn’t tell us much by itself. What Heller “holds” is that DC’s ban on registering new handguns to be kept within the home is violative of the prohibition against “infringement” on “the right”. It didn’t say much; but what it said was very worth-while.

      First, of course, that “self-defense” is a part of “the right”. Second, that the militia clause is not controlling. Third, that a “handgun” is an “arm” protected by 2A. And, that the metes-and-bounds where this right can not be infringed certainly cover the 4-walls of “the home”. This is our “toe-hold”. From this very narrow toe-hold applicable only to DC (for practical purposes) we were able to get McDonald, which extended coverage to the 50 states! That is a full “foot-hold”. Then, we got Caetano; i.e., that “arms” are not constrained to flintlocks and swords. Now, we have solid ground under one foot.

      Our difficulty is that we have neglected the judiciary as well as neglecting ALL the rest of national politics. We – the adults in the debate – as well as our fathers and grandfathers. We have been content to mind our farms and shops, paying attention to little outside our township and state politics. That brought us to the place we were at the night before Trump was elected.

      Tonight, we will see whether we have returned to our farms and shops and stopped paying attention to national politics. Have we learned our lesson? Or not? If we imagine that we can leave our national life in the hands of one man alone – who will take care of our concerns without our continuing support – we will fail.

      Trump needs to succeed in filling the ranks of the District and Circuit courts with judges who will adhere to the guidance from Heller, McDonald and Caetano. He needs to be re-elected in 2020 so that he – and then Pence – can continue to repopulate SCOTUS. It took 200+ years for our politicians to bring us to this degenerated state of national government; turning around won’t happen overnight. Nor will it happen through the efforts of one lone man – without our forceful support.

    2. avatar uncommon_sense says:

      Chip,

      … by stating that the right was most acute in the home, the Court implicitly acknowledged the existence of the right outside the home.

      And if our right is “most acute” in the home, that means our right is less acute outside the home — although still acute. In other words being able to exercise our right outside the home is still very important.

  8. avatar Gov. William J Le Petomane says:

    They’re not even trying anymore. They should just come out and say, ‘NO! Because we say so.’

    1. avatar Baldwin says:

      Nailed it!

  9. avatar m. says:

    fu carpet munchers

  10. avatar pwrserge says:

    And now we have split circuits.

    1. avatar Aaron Walker says:

      …More Like a “Short Circuit!” As in brain-eating Liberalism…And DemoCommie activist Judges ruling from the bench. Reason OUR constitutional rights away…Soon THEY be none….

      1. avatar pwrserge says:

        The point is that now we have two circuits, 1st and 7th, directly contradicting each other. The SCotUS pretty much HAS to grant cert at this point.

        1. avatar LarryinTX says:

          Not if they don’t want to.

        2. avatar LKB says:

          They should, but it doesn’t mean they will. There are circuit splits that have been around for decades that, for whatever reason, remain unresolved.

          Having said that, I do believe that the day of reckoning for the anti-2A forces is coming. Roberts being Roberts (and I think he’s going to be the key vote given the current composition of the Court), he’s going to want a near-perfect test case before he’ll enforce / expand Heller. There are several in the pipeline that might do the job.

          My prediction is that whatever case they take, Roberts writes a narrow opinion that declares that laws that impinge 2A rights are subject to strict scrutiny, and kicks the case back down for determination under that standard. (Thomas will write a blistering concurrence joined by 2-3 others saying that there’s no need to send it back, as there is no way the law in question survives strict scrutiny.) While frustratingly narrow, that kind of incrementalist ruling would nuke just about all the all the Heller-agnostic CTA rulings out there (which typically hold that 2A challenges get only intermediate scrutiny or rational basis review), and make it VERY hard for district and circuit judges to continue to wink at Heller. (When laws are subject to “strict scrutiny” constitutional analysis (for example, laws that impose prior restraints on free speech), they almost never survive the challenge.)

          Now, were we to get a solid pro-2A replacement for Ginsberg / Breyer / Sotomayor) in the near future, then this calculus changes radically. Thomas would then have the votes for a broader ruling, and as the senior judge in the majority (assuming Roberts wimps out) Thomas would almost certainly pull rank and assign the writing of the Court’s opinion to himself. And Thomas’ 2A creds are second to none.

        3. avatar pwrserge says:

          Pretty sure that circuit splits on a fundamental constitutional right aren’t going to be allowed to stand long-term. Hopefully, now that the commies have managed to piss of Kavanaugh to an amazing extent, we’ll see some rather scathing anti-leftist rulings coming down the pipe.

        4. avatar MarkPA says:

          @LKW: Thank you for your remarks on strict scrutiny. I respectfully beg to differ with you and humbly ask you to explain why I am apt to be mistaken.

          It would be a bold step for SCOTUS to declare strict scrutiny. If several Circuits decided strict and one Circuit decided intermediate, then SCOTUS could overrule the one outlying Circuit. But, such is not the case. I believe there are several decisions that call for watered-down “intermediate” scrutiny that is no more rigorous than rational-basis. I doubt that there is more than a single strict-scrutiny decision; and if there is one, I doubt that it’s at the level of a Circuit. I think that SCOTUS would be reluctant to take such a strong step. Instead, I think SCOTUS would like to make very small increments based on reasoning that isn’t so dependent on upholding the 2A. E.g., rulings that depend on commerce-clause or equal-protection of non-residents vs. residents. Something – ANYthing – other than a ruling that makes a bold statement about what the 2A means.

          Look at Heller. SCOTUS found that the DC law couldn’t meet “any” level of scrutiny. I take this to mean that it couldn’t even meet “rational basis”. In other words, the justification for the DC law was so thin that SCOTUS could find no basis to give it any benefit of the doubt.

          I invite us all to think of the 20,000 gun laws on the books. Some will meet strict scrutiny as SCOTUS would apply it. Others would meet intermediate scrutiny, but not strict. Still others, rational-basis but not watered-down intermediate. In the abstract, this breakdown would seem logical.

          Should we pursue a case that we have good cause to believe SCOTUS would uphold (rule against us) after applying strict scrutiny? What could we possibly get out of such a case?

          How about pursuing a case that we have good cause to believe SCOTUS would uphold (rule against us) after applying intermediate scrutiny? I.e., one where they could say that they want to uphold this law because it meets intermediate scrutiny and they are not willing to apply strict scrutiny? Now, we would have enshrined intermediate scrutiny into precedent for a very long time.

          Now consider a case that is so poorly founded that it’s doubtful that it would meet rational-basis. I.e., the case is so outrageous that no fair-minded judge wants to give the legislature any benefit of the doubt.

          Do we think that there might be a few gun laws that are so ill-founded that they couldn’t be seen to be rational at all? Do we really think our legislators have done their homework so thoroughly that surely all their laws will meet at least rational basis; and, probably a watered-down intermediate level of scrutiny? Or, do we think the field of 20,000 laws is pretty ripe with laws that wouldn’t withstand rational-basis test?

          If we think the field is pretty ripe, then I think we are best off pursuing every good case we can find that couldn’t meet rational-basis test. Invite the courts to rule – as in Heller – that so many laws meet NONE of the levels of scrutiny. The precedents will accumulate forming a strong support of lots of facets of right-to-arms. Only after we have a superstructure of precedents do we look for a case that would strive to resolve the question of the applicable level of scrutiny.

          We do NOT want a case that clearly passes rational-basis and which SCOUS WANTS to rule AGAINST us. A case which does NOT meet strict scrutiny but WOULD easily pass intermediate scrutiny. Eventually, we will reach such a “bridge too far” where we have to decide that we will attempt to cross it. Yet, we want to take this decision only when a great majority of justices are prepared to take this bold decision.

          Clearly, today we have nearly enough justices to get cert. It is way too premature to imagine that they will both grant cert and rule in our favor AND impose strict scrutiny as the applicable test for 2A cases. We imagine such to be the case with only 3 modern 2A cases as the background? We imagine that this is a prudent course to pursue today?

  11. avatar Aaron Walker says:

    DemoCommie activist Judges in a MA Kangaroo court system! This is ” Authoritarianism”! A form of Tyranny! Definitely, a Constitutional Infringement! This is Massachusetts future! To become a 3rd world “Marxist Country/state! ” This judge NEEDS to step down from the bench!

  12. avatar Rand says:

    One one hand, I guess that means their permitting process to determine if you can even buy a gun in the first place is flawed. On the other hand, I guess a permit is needed to get it from the store to the home.

    WTF?

    1. avatar Aaron Walker says:

      …I’m in Massachusetts…A MA resident CAN’T exercise THEIR lawful constitutional 2nd amendment right…Without a FID card/LTC permit, Mulitple local/state police permissions, mandatory safety certification, etc… You CAN’T purchase any firearm without a permit…Until 2014, you could even purchase pepper spray or MACE without a “Restricted” Defense Spray permit…Now it is deregulated…This is “Authoritarianism”! Plain and simple…

      1. avatar GS650G says:

        Move out of MA and let them tax someone else to pay the bills. Then you can live and vote with like mi ended people

        1. avatar tsbhoa.p.jr says:

          like those of us in illinois.

  13. avatar TFred says:

    Haven’t you heard? Plain text readings only apply when they help Democrats. See e.g. the Fourteenth Amendment to the US Constitution requiring us to grant citizenship to anchor babies from illegal aliens.

  14. avatar Chris Morton says:

    1. As is the case everywhere in this country, police in MA have no legal duty to protect you as an individual, no liability if they fail to protect you as an individual and no physical ability in the first place. Depending upon who you are, they may not even WANT to.

    2. As usual, the unspoken motto is: “We don’t have to protect you and we won’t let you protect yourself.”

    3. Remember these things when you vote today.

    1. Already did…Unfortunately, MA. DOESN’T have much choicez when it comes to the governor. A GOP RINO/ baker, who received a big fat “F” from the Gun Owners Action League in MA. for his ANTI 2nd Amendment support and is a known friend of the DemoCommies in MA…The other is NOT to widely known New DemoCommie…Not much of a choice at all….

    2. avatar pg2 says:

      Right…because the ballot box gives you real choices……

  15. avatar TFred says:

    For those interested. I hate it when news stories don’t provide the link to the opinion…

    http://media.ca1.uscourts.gov/pdf.opinions/17-2202P-01A.pdf

  16. avatar former water walker says:

    Yeah that sux…haven’t heard from Mass. resident Ralph yet. Vote like your guns depend on it.

  17. avatar Toothless, shoeless, clueless. says:

    But but Trump MAGA Hillary for prison build the wall, shall not be infringed, period, bring it on, drain the swamp, march on DC, then libtards bla-bla-bla. I have 30 AR15 and I spent my last 6 paychecks in ammo, I will get you commies.

    1. avatar N64456 says:

      Does your neighbor know you are molesting his 6 year old son?

    2. avatar neiowa says:

      What are you doing on the internet today troll. Today is the day you are supposed to be voting 20times. Or are you still filling out all those “absentee” ballots?

      1. avatar Patrick H says:

        Voting more than once in an election is a felony. Try to get your political somewhere besides Infowars.

        1. avatar pwrserge says:

          You assume the commie scum care. How else do you think people who have been buried for decades manage to cast votes in Chicago?

        2. avatar Patrick H says:

          Everybody cares about going to prison. That’s why actual in-person voter fraud is vanishingly rare.

        3. avatar pwrserge says:

          Except for the dozens of people convicted of it between 2016 and today… all of them on the Demokkkrat side.

          Until there’s a federal law mandating biometic voter ID, whatever you say about “voter fraud” being “rare” is complete conjecture and you know it. LA county had more votes cast in 2016 than it had registered voters. Detroit had several polling places with over 30% voter fraud. Those are the cases of blatant fraud we KNOW about.

  18. avatar GS650G says:

    Could they rule cops have an obligation to protect citizenry?

    1. avatar Geoff "Mess with the bull, get the horns" PR says:

      “Could they rule cops have an obligation to protect citizenry?”

      They could rule that (but I doubt they would).

      If they did, we could offer them an ‘out’, let us have the tools to do the job the cops won’t be able to.

      That opens up select-fire weapons (and other tasty NFA ‘goodies’) for one and all…

  19. avatar Jay in Florida says:

    Just everyone sit BACK. Hold there breath. Sooner and hopefully sooner then later. Some slave states BS will come up before the court. I know I can wait.

  20. avatar Ed Schrade says:

    Looks like each state and in some cases cities have a different copy of the constitution and bill of rights !

  21. avatar neiowa says:

    It’s time for Congress to start fulfilling their obligation to oversee this out of control judiciary. A mass impeachmentof fed judges is needed. Those that betray their oath to the Constitution. Sad that in 2 centuries only 15 have been impeached.

    https://www.fjc.gov/history/judges/impeachments-federal-judges

  22. avatar Jim Bullock says:

    Um, your right to self defense goes wherever yout self is. Seems yhe Mass, there want to extract a cost in safety if u leave your house.

    Step out the door n u live or die at their option.

    #voteyourinterest

  23. avatar CalGunsMD says:

    THIS is why you vote like an adult – sometimes holding your nose, realizing that half a loaf is better than no loaf.
    Our side needs to take on an incremental the strategy as well because it’s that strategy, implemented by opponents of the Second Amendment, that got us where we are now.

    1. avatar MarkPA says:

      You are correct. Far too many PotG sit back and insist that until there is some proposed change that is just-about-perfect in their not-so-humble opinion, they will stand in opposition. “No incrementalism for me!” “You can count on me to be the first at the barricades when we take-back the Constitution by force!!”

      Conventional wisdom is that just 3% of Americans were in the field at any one time supporting the Revolution. Yet, they were backed by another 30% of Americans who would tend the fields, mind the blacksmith shops, etc. in support of those 3%.

      We imagine that gun-owners constitute 100 million out of 330 million. But if these gun-owners were really ready, willing and able to stand up for the 2A we wouldn’t be having this discussion at all. We would be talking about hunting, marksmanship and ballistics.

      Our problem is that we are NOT 100 million STRONG; we are maybe a couple of million strong; the rest are willing to vote for other interests – or not at all.

      Progressives beat conservatives because they know how to close ranks. They don’t know what they are talking about; they suffer from cognitive dissonance. But, like soldiers of the 18’th century or Roman times, they know how to close ranks. That’s all the Bolsheviks needed to win.

  24. avatar pg2 says:

    And MA will re-elect Healy and Warren. How many who gave their lives for this country are rolling in their graves?

  25. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”*

    * Void where prohibited by freedom snatching spongers sheltering statist ambitions.

    1. avatar PMinFl says:

      Jonathan-Houston
      Progressives read the 2nd differently than we: A well regulated PEOPLE, being necessary to the security of a CONTROLLED state, the right of the MILITIA to keep and bear arms shall not be infringed. see just a few revisions and “all better”.

  26. avatar Xaq Fixx says:

    This makes perfect sense based on the plaintext reading of the 2A which reads: “Self Defense, being necessary to the security of a free State, the right of the people to keep and bear Arms while inside their homes, shall not be unreasonably infringed.”

    1. avatar LarryinTX says:

      Unless it’s common sense.

  27. avatar LibertyToad says:

    So I guess the Framers only felt that you could fight a tyrannical government from inside your house. Yeah, that makes a lot of sense….

  28. avatar pg2 says:

    Massachusetts, the cradle of the American Revolution…….

    1. avatar Ing says:

      From cradle to grave.

  29. avatar Geoff says:

    Of course the Court determined the decision does NOT apply to criminals.

  30. avatar grumpster says:

    King George III would have been so proud.

  31. avatar possum says:

    That’s is a splendid idea, no guns outside the home. Now they need to pass a law that prevents criminals from breaking that law

  32. avatar Geoff says:

    So the State that started the War of Independence now has to start a new Revolution against Tyranny?

  33. avatar W says:

    Courts of appeals have made complete mistakes before and they will again. What this decision really means is that the right to keep and bear arms in the Second Amendment may be limited to one’s home, which is bonkers. Actually, not bonkers but a progressive reinterpretation to meet progressive policy preferences.

    This is precisely why we need better judges and better politicians. With crummy ones, no law, amendment, or constitution is worth the paper its printed on.

    So, get out there and vote.

  34. avatar CliffG says:

    This decision is inherently discriminatory against women and weaker men. If we presume that a person has a right to defend themselves, we also have to presume an ability to defend themselves. If the only time a person is capable of defending themselves is in their home, and we know that the police, by definition, are not required to defend us, how exactly is a 110 lb. woman or 145 lb. man supposed to defend themselves against a 250 lb. male while in public? The court has just ruled that the strong are allowed to be predators while depriving the weak of a means to defend themselves. This is crass bigotry and the court should be ashamed of themselves.

    1. avatar Pg2 says:

      Consistent with feminists and woman’s rights groups supporting boys and men competing against girls and women in sports. Boys and men will always have natural distinct size, strength, and speed advantages over females in the same age group.

  35. avatar Yarbles says:

    It is really the other way around. I am generally in more potential danger when out and about than at home.

    Anyway “bearing arms” in no way means leaving them at home.

    I have carried concealed pretty much everywhere for the last 20 years legally by permit. IF the law changed today, I would not stop carrying.

  36. avatar Ralph says:

    Another thing that is obviously not a core protected right in Massachusetts — the right to a fair court that will uphold the Constitution.

  37. avatar Green Mtn. Boy says:

    “The “core right” protected by the Second Amendment is for citizens to use arms in defense of home, the court said in its decision. “Public carriage of firearms for self-defense falls outside the perimeter of this core right.”

    Ironic this is in Massachusetts ,after all the minutemen of Concord and Lexington would have needed permission to take and bear their ams outside of their homes to respond to the British.

  38. avatar Ralph says:

    If a gun for home defense is indeed a “core right” protected by the Second Amendment, then how can the Massachusetts licensing scheme pass Constitutional muster when it requires a license to have a gun at home and the license is “may issue?”

    1. avatar Warlocc says:

      I was just thinking the same thing. WTF is a “License to Carry” if we’re not allowed to carry? Why do we need to get it at all if we can’t use it? And if the core right is in the home, we shouldn’t need it to have a gun in the home.

      Backward fucking joke system. My renewal is in 2020. I think I’m going to give them the finger instead.

  39. avatar Chris T in KY says:

    Massachusetts is were you rights go to die.

  40. Would the First Circuit treat abortion the same way?

  41. avatar adverse5 says:

    Once we have a socialist republic you will not have to worry about your rights to anything. And, no, The Constitution does not provide for a socialist republic, it will have ceased to exist. (Half the voting public voted for the socialist candidate last presidential election. It’s not over yet).

  42. avatar Mike says:

    What part of “Shall not be infringed” do they not understand.

    1. avatar Sam I Am says:

      You’re a bit late to the game with the idea that anything in the constitution is absolute. There are all sorts of infringements, all based on the notion that “common sense” tells us that nothing is absolute. The constitution is what the people say it is (legislation and constitutional amendments), and what the whim of the court system says it is.

      Maybe we should blame the founders. Once the amendment process was established, “absolute” was a dead letter.

      1. avatar Mike says:

        Bunk. The amendment process has nothing to do with it. Not one single amendment altering the 2nd Amendment has even been proposed, much less adopted. Not one single amendment relating to gun control in any manner has ever hit the books. Every judge in this country took an oath to UPHOLD the Constitution….AS WRITTEN. Not rewrite it to suit their own personal opinion. The true failure though comes from the people failing in their duty to make it clear that such behavior is NOT acceptable. But then that is hard to do when people such as yourself go around preaching that there is nothing that can be done about it, so we may as well accept it.

        1. avatar Sam I Am says:

          Let me be the first to welcome you to reality – the framers did not declare the constitution absolute, unalterable, frozen in concrete for all time (they were certainly smart enough to make such a constitution if they chose). Once the amendment process was created, nothing in the constitution remained absolute, period, no getting around it.

          More reality – the SC arrogated the power to be the final determiner of what is/is not constitutional. That established the power of the SC (and lower courts) to modify the constitution through court rulings (and if they choose, the SC can declare unconstitutional any attempt to restrict their jurisdiction through acts of Congress – once declared unconstitutional, there is no mechanism remaining by which Congress sets the jurisdiction of the courts).

          Even more reality – the ability to return the nation to the constitution of the founding lies in representatives to the House and Senate, both of which decline (successfully, repetitively) to do so because the will of the voters does not compel such action.

          More real reality – “the oath” of office for federal positions does not, as in does not, mention “as written” in the beginning of the nation; “the oath” is about defending the constitution as is current (and by extension the laws promulgated under the constitution – whether we believe them cosmically valid, or not).

          Can anything be done about the status of adherence to the original constitution, as understood by the founders? Yes. Will it? 225+ years of demonstrable history says, “No”. Thermodynamics teaches that in a closed system (the nation), things tend toward disorder(things will get worse) unless acted upon by an outside force toward order (which is common terms is called “revolution”).

          Simply put, the constitution of the United States is not absolute. As the number of possible modifications increases (life is not in stasis), the likelihood of modification increases with it. Allowing modifications ever decreases whatever state of “absolute” existed prior to the inclusion of a means to amend the document.

        2. avatar Mike says:

          Thanks professor. But where exactly did I say that the Constitution was absolute? Please point it out to me. I’ll wait…….still waiting…..sorry, I fell asleep waiting. That’s one of the beauties of social media. If someone can’t argue with what you said, they’ll argue with what you didn’t even say. The framers knew that things can and will change with time. Which is why they included the amendment process to begin with. They allowed the Constitution to be a living document….VIA THE AMENDMENT PROCESS. If there is a desire to modify the Constitution there is a very clear cut and well defined way to do it. But what the framers did NOT intend is for every Tom, Dick and Harry with a robe to redefine the Constitution as they saw fit. And once more for those slow on the uptake, I did NOT say this doesn’t happen. Sadly, it happens every day. What I said was that this is NOT acceptable. Take a look at the 10th Amendment. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. I think that says it pretty clearly. The Constitution grants certain powers to the government. Anything not SPECIFICALLY called out in the Constitution is off limits. Unless, as I’ve already said, the Constitution is amended by the stated procedure. Now you may be content living in a country where anyone with a robe can change the law of the land at will to suit their own agenda. But I’m not.

        3. avatar Sam I Am says:

          “But where exactly did I say that the Constitution was absolute? Please point it out to me.”

          To quote you – “What part of Shall Not Be Infringed do these people not understand?” That is a absolutist take on the Second Amendment. “Shall Not Be Infringed” provided no exceptions, thus “absolute”. (not to mention your idea that the oath of federal office is an oath to uphold the constitution “as written” – an absolutist position)

          Next, the framers did not decide to list the delegated powers of the judiciary. Instead, Congress was delegated the power to determine the jurisdictions. That must indicate the framers understood that the moral/principled backbone of Congress wast to be depended upon to set the boundaries – which is what is done (as in allowing the SC, and federal courts to determine what is constitutional). The Marbury v. Madison case was not a legal issue, but a personal vendetta between Madison and John Marshall.

          The constitution is really rather vague about jurisdiction of the courts, and Congress did establish certain parameters with the Judiciary Act of 1789. But even that did not prohibit the SC from interpreting the constitution as it saw fit. In 1803, Marshall decided that the SC could pretty much insert itself where it chose. Prior to that, the people, via Congress, determined what was/was not constitutional (not necessarily a good thing). The assertion of Marshall that the SC had a duty, obligation and delegated power to sort out disputes between central government elements (not necessarily a bad thing).

          Whether or not some sort of government “referee” could render final judgement on constitutional matters was a good idea, the fact is Congress has done precious little to restrict jurisdiction of federal courts. Once “judicial review” was arrogated to the courts, the slicing of the egg began. From the concept of “judicial review” we have “levels of review” (some constitutionally protected rights are not worthy of reading “as written), and “compelling government interest”.

          What part of “Shall Not Be Infringed” is misunderstood by politicians and jurists? It doesn’t matter. The constitution is considered malleable, interpreted by history and precedent. That is reality, and the recent two major election cycles prove at least half the voting public is happy with a set of suggestions, versus a strict constitution that gets in the way of doing the right thing.

        4. avatar Mike says:

          Sigh. You really are dense aren’t you? “What part of Shall Not Be Infringed do these people not understand?” is NOT saying that the Constitution is absolute. It merely abides by what the Constitution currently says. Period. If you or any other people in this country feel those words are wrong, irrelevant, subject to interpretation, or whatever, then change them. But use the clearly defined process for doing so. If the Constitution is wrong, amend it. But leaving it to the whim of any buffoon in a robe is wrong, any way you slice. Put all the spins on it you wish. It is NOT what the framers intended. And once again. I’ll type as slow as possible this time. I’m NOT denying these things happen every day. I merely contend that it is unacceptable. But my position becomes untenable in the face of people like you who choose to place your welfare in the hands of any fool in a robe and blindly accept whatever judgement they hand down. So blather on. I have better things to do than argue with a fool.

        5. avatar Sam I Am says:

          ““What part of Shall Not Be Infringed do these people not understand?” is NOT saying that the Constitution is absolute. It merely abides by what the Constitution currently says”

          Uuhhhmmm, do you understand “infringed”? Shall not be infringed means no exceptions, no limits, no “common sense” rules/laws. “Shall not be infringed” is about as absolute as it gets. If one must abide by the constitution as written, then there can be no deviations, which is “absolute”, until it is modified using the provided process for altering the document. Therefore, if “not infringed” is how the words are written, the stricture is absolute until changed by constitutional amendment. That means no “common sense” laws. That means not simple legislation creating constraints. That means no judicial review regarding “levels of review”, “compelling government interest”, legal history and tradition (precedent). As written, the Second Amendment is absolute.

          But if “Shall not be Infringed” had any legal meaning, do you think the current host of gun rights advocates are the first to propose the Second Amendment as complete defense against all restrictions on gun ownership? Since the words as written are not an absolute defense against infringement, then asking what is mysterious about the wording seems silly.

          The people infringing upon the Second Amendment know full well what the original words meant/mean; they just don’t care. The original wording and meaning of the Second Amendment are virtually moot to gun grabbers. You can choose to believe the Second Amendment prevents all sorts of mischief. I can choose to believe the Second Amendment prevents all sorts of mischief. We are both irrelevant, without the power to enforce our understanding on the rest of the country.

          What we can push is the notion that we should only be electing politicians who also believe in strict adherence to the original wording of the constitution. Truth is, however, very few people (even gun owners) would become totally single issue voters because we have come value other benefits of the country that are more important than strict interpretation of the Second Amendment (or the First, for that matter). It is the way of humans. Example, given a binary choice between a Balanced Budget Amendment, or an amendment reinforcing the Second Amendment in no uncertain (detailed) terms, I would choose a balanced budget. If a politician promises to make a balanced budget the central principal of office, but squish on the Second Amendment, I would choose the budget – and I AM a Second Amendment absolutist. The Second Amendment will not get the nation a balanced budget.

        6. avatar MarkPA says:

          @Sam: “Shall not be infringed means no exceptions, no limits, no ‘common sense’ rules/laws.” Where did you get this definition? It appears that you made it up yourself. That’s fine, you are free to make up your own definition of a word. That’s been the right of a free people since Humpty Dumpty in Alice’s Wonderland. However, you can’t expect educated English speakers to take you seriously when you argue from the vantage point of making up your own definition for a word, such as “infringe”.

          Ordinarily, we argue about the meaning of a statement by referring to up-to-date dictionaries. Go to Webster’s, etc. There are exceptions, of course. When arguing about a statement made 100 – 200 – 220 years ago it’s not satisfactory to use current dictionaries. For example, the phrase “well regulated” today means bound-up by rules and constraints until the object is nearly lifeless. In the 18’th century it meant “effective, well-functioning – a well-regulated clock keeps correct time”.

          We have a choice. We can adopt the view that “a well regulated militia” means one that is “bound-up by rules and constraints until the object is nearly lifeless”. Alternatively, we can adopt the view that “a well regulated militia” means one that is “effective, well-functioning”. Which do you prefer?

          Likewise, we have a choice. We can adopt the view that “infringe” means what Webster’s tells us that word means today; or, that it means what 18’th Century dictionaries and usage tell us it meant at the time the 2A was ratified. Which do you prefer?

          Perhaps you prefer an 18’th century definition of “well regulated” BUT a 21’st century definition of “infringe”. That would be an interesting position; I’d like to hear the arguments to support it.

          The point of the foregoing is to inquire into the meaning of the word “infringe” as it was used in the late 18’th century. Did you do that? What did you discover? Could you explain your interpretation of the 2A using 18’th century definitions of each of the key terms?

          The primary thrust of the word “infringe” as used in the 18’th century was “to break”. By no means is this exhaustive. You may wish to study the Oxford English Dictionary and develop your own opinion.

          “‘Shall not be infringed’ is about as absolute as it gets.” I agree with your statement here. It seems to me that a judge/justice needs to take a binary decision; e.g., that ‘This law, as applied by the prosecutor to the case before this court infringes upon the defendant’s right to arms. And so, the law is unConstitutional.’ That is, any law that operates to “infringe” upon “the right” of a member of the class “the People” concerning “keep and bear” “arms” violates the Constitution; that can not be indulged.

          The law as applied to the case will pass muster if one of the other key arguments doesn’t hold. Clearly, if the defendant is not a member of the class “the People” then the law is (almost certainly) Constitutional; e.g., aliens have no standing to claim a 2A right; they may appeal to God only. Not all objects are “arms”; e.g., it’s debatable whether a silencer is an “arm”. And, of course, “the right” lacks a clear meaning outside the context of custom and usage in late 18’th century America.

          Here, we are concerned with the word “infringe”. We can thumb through all the 20,000 gun laws and try to apply an 18’th century definition of that word to each law’s command/prohibition. E.g., is a law requiring a manufacturer to apply an identifying “maker’s mark” and serial number to his product an “infringement”? Does it “break” the “right of the People to keep and bear arms”? The solicitor general might argue that there are almost 400 million guns in America virtually all of which bear a maker’s mark and serial number. There must not be much of an “infringement” here.

          A much more challenging problem would be a registration law. What if a municipality, state or Congress were to mandate registration of arms? Would such a law “infringe” – i.e., “break” – the “right . . . to keep and bear arms”? On first impression, no – not necessarily. Not immediately. And yet, often enough in history, registration was followed by confiscation. And so, we might – reasonably I think – argue that a registration law tends to threaten the prospect of confiscation, and therefore, should be judged with the greatest of skepticism.

          We do not know much, yet, about how SCOTUS will interpret the word “infringe”. We can say that it apparently regarded Washington DC’s and Chicago’s ban on a particular class of guns unconstitutional notwithstanding a “grandfather” clause. Yet, they did not undertake any analysis of the meaning of the word “infringe” to say something like: “A ban, even with a grandfather clause, is a breach – that is it breaks – the right”.

          In more ambiguous cases – perhaps a registration law – we should anticipate SCOTUS paying close attention to the definition of “infringe”. We should have done our own study in advance and be ready to contribute to its analysis.

        7. avatar Sam I Am says:

          “Infringed” is not the primary focus of the statement. “Shall not” is the bold, forceful prohibition of whatever act is under consideration. “Shall not” grants no permission, conditioning, circumscribing. If there is a preexisting, natural, human right that no entity is permitted to demand a maker’s mark on a particular piece of work, then the phrase “Shall Not Require Any Identifying Mark” would be the commercial equivalent of “Shall not infringe”. The founders were completely competent to write in any “common sense” exceptions they intended, or saw would be needed at some future moment. For the founders, “Shall not” was so self-evident that they saw no need to add “whatsoever” to the wording of the Second Amendment. Since a government has no moral authority over the people except that granted by the people, “shall not” becomes absolute.

          In order to understand the words of the constitution, one must understand the conditions of the founding generation, and freeze the moment – disregarding how comfortable we have become with a servant government ruling how the masters will conduct themselves.

          The founders had a bad experience with a weak central government, and knew they needed a more robust government. However (a big “however”), they also had experience with tyrannical government. The founders determined that the new central government would always be under the control of the States (“the people). One of the things the founders understood about strong government is that it creates large standing armies to enforce the will of government on the people. So it was the founders determined the central government (and its army) would always face a superior military force. To ensure that situation, the framers prohibited the central government from having any authority to restrict the ability of the States (“the people”) to throw off, violently if necessary, the new central government. The Second Amendment is a declaration by the States that they maintain their power (rights) over the central government, and will not tolerate central government attempts to subjugate the populace. The States refused to grant government authority over firearms. The States provided no exceptions to the Second Amendment, no room for “common sense” gun control, no avenue for the central government to evade “shall not”. The only means by which exceptions to the restriction on government authority over firearms was the amendment process; not any other form of legislation. in 1789, there were no governmental “compelling interests”; government served only the interests of the people, not of itself as nanny to immature children.

          The upshot is that if government (either the Executive or Legislative branch) wanted permission to control firearms, a constitutional amendment would be necessary. The belief in 1789 was that no State would even contemplate such a surrender of superior power to the central government. The result was the Second Amendment was absolute in its declaration, alterable only by constitutional amendment.

          While maintaining the mindset of 1789, one must understand that the States held to themselves, individually, the power (right) to establish laws for their individual benefit. That meant the States could control access/ownership of firearms, as they each saw fit. It is hard for us, today, to grasp such a political structure (we are subjects, not citizens). But the power of the States to conduct their affairs without regard to the federal constitution (except as powers delegated to the central government) was the order of the day – until 1868. Fast forward to 2018, and we have a structure where the central government is all powerful, by legislation, not constitutional authority. The third revolution should have happened already. The founders were a people apart from us today.

        8. avatar MarkPA says:

          @Sam: Do you suppose that readers of TTAG are unaware of the thrust and weight of all your arguments? I am so aware; and I’m quite sure that nearly all other readers here are equally aware. But, that doesn’t help us advance our cause.

          I agree that the words “shall not” set the right mood for the words which follow. Likewise, “be infringed” erect a strong barrier. Nevertheless, that barrier is not universal. It does not mean “all things to all people, no matter what they wish for”.

          Suppose you disagree; suppose you feel that these words “shall not be infringed” are a perfect intellectual barrier to whatever it might be that you object to. Even so, what is the practical effect of such a belief? Unless and until we could persuade a super-majority of voters to take it seriously; or 5 out of 9 justices to agree on a particular case, it means nothing.

          Likewise the “Commerce Clause” and Wickard v Filburn. SCOTUS took a political position and flew with it far beyond any reasonable interpretation. Or, the 14A and the “Slaughterhouse Cases”. In each of these examples SCOTUS set out on a novel course. Still worse, they followed precedent in case after case. Congress and we the People let them get away with it. And, until one or the other (Congress or 38 states’ legislatures) are ready to turn-the-ship around, it’s unrealistic to try to piss into the wind.

          We have language in the 2A that is very good; very strong. We have logical arguments based on reason, empirical experience, the 2A text and scholarship (collectively referred to as “the standard interpretation”). It’s incumbent upon us to make the best of what we have to work with and within the framework of our system of government notwithstanding that it has become corrupted.

          The day may come when we the People will have “. . . to alter or to abolish it, and to institute new Government . . .” I pray only that that day will not come while any of my dependents still live. Still, it might come nevertheless. It is our duty to have FIRST laid the ground for the fight to follow. We must use the soap-box and the ballot-box to the fullest. If 3% are to take to field they must have the full-throated backing of at least another 30%; else, they are apt to fail.

          Railing against the failings of our fathers and grandfathers will not serve to gather clarity of thought. Not on the 2A, not on the 14A, not on the Commerce Clause. It’s up to us to make the best of the institutions available to us, as we find them, and as we can influence them.

          Trump is far from a Messiah; and yet, he is at least repopulating the federal judiciary. We have Heller, McDonald and Caetano. The ball is starting to roll in our direction. We must keep Trump in the Oval Office as long as possible; and then Pence. We must make the arguments that are apt to be found persuasive by 5+ justices. It matters not one whit whether either of us persuades the other; it is 5+ justices now sitting on the bench that need to be persuaded by our arguments.

          Yes, it helps to persuade our fellow voters; especially at the ballot box. And it helps to persuade Congress-critters by voter sentiment. Now, here’s the rub. Suppose you articulate an argument to your neighbor; an argument that he recoils at (based upon his emotions). You are not off to a good start. Still, you’ve made him curious. So, he consults with every lawyer that he knows to get a professional opinion of the merits of your argument. Every lawyer he consults tells him that your argument is a non-starter. So, now you have a neighbor who neither likes your argument nor can find a professional (in law) who supports it. How have you advanced the ball politically?

          It doesn’t help that you and I might have a hot-line to Heaven and we can consult with all the adult men of the Founding generation. It doesn’t help that they reassure us that our opinion is 100% spot-on with what they were thinking when they sent their delegates to the state legislatures to ratify the Bill of Rights. Being “right” is not good enough. It is necessary to be persuasive.

          It’s not an easy task. It wasn’t for the Founding generation; it hasn’t gotten easier since. I think our best shot today is with SCOTUS. Second best, to stop gun-control legislation in the US Senate. Third, to promote gun-rights in state legislatures. Fourth, to promote concealed-carry by women and minorities. We need arguments that will prevail with these audiences. It’s not enough to collect “Likes” on gun blogs.

        9. avatar Sam I Am says:

          “Suppose you disagree; suppose you feel that these words “shall not be infringed” are a perfect intellectual barrier to whatever it might be that you object to. Even so, what is the practical effect of such a belief? ”

          My point, exactly. The issue was the posting of a comment, “What part of ‘Shall Not Be Infringed’ don’t these people understand?” My original response was that the phrase has no effective meaning today. That responding to outrageous constraints on gun ownership with the favored phrase accomplishes precisely nothing. If it were effective, all gun control by the federal government would have been stopped before they could be made law. While I, in fact, believe 2A is immutable, history has proven otherwise in practice. The courts decide what the laws mean, and the people (voters) of the nation have been quite happy to allow rule of law by the people ruling on the law. That can never be changed by appeals to the precise words of the Second Amendment. We can’t even change that by voting for “pro-2A politicians who are willing to roll back unconstitutional laws, AND, rein in the courts – limit jurisdiction in matters related to 2A.

        10. avatar MarkPA says:

          @Sam: Yes, I agree. I had not carefully followed this thread before replying. Now I see that my remarks ought not have been aimed at you but rather at others who you were criticizing.

        11. avatar Sam I Am says:

          “I had not carefully followed this thread before replying. ”

          Kinda thought that was what was going on.

  43. avatar Chiefton says:

    Here is a question for folks to ponder. If I declare that I do not own a home to live in but rather for mailing purposes only and declare that my home is the outdoors, can I now carry anywhere but inside my postal address?

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