Who Has The Right? The Militia or The People?

[adrkwan]

The author is just throwing a fit because they don’t want gun rights, on a logical basis they’re wrong.

The article’s problem is that it frames the historical tradition at such a high level of generality—“government regulation of armed entry onto private property”—that it washes out the distinctions Bruen requires courts to examine.

The colonial laws dealt mainly with hunting, gunfire, taking game, damage to land or livestock, and risks to persons from poaching. Hawaii’s law criminalized peaceful licensed concealed carry in ordinary businesses open to the public. Those laws are not meaningfully alike merely because both concern guns and private property.

More importantly, the Supreme Court did not overlook Brady’s argument. The majority cited her article and assumed, for argument’s sake, that “enclosed” property could include some property open to the public and that Hawaii’s analogues were known and accepted. It still held that the gap was too wide.

So this is not a case of the Court failing to understand the nuance. The Court understood the broader armed-entry and safety theory and rejected it because the historical laws differed materially in both how and why they burdened the right.

I read it a little differently. She acknowledges the levels of generality are an issue in Bruen and as argued in Wolford. It's written through the the lens of a Property Law professor, not a Constitutional scholar so naturally the focus is a bit more centered on poaching and ones traditional property rights in the 1700-1800s. There is an obvious self-interested statement that SCOTUS should dig more into property rights when historic analogs deal with traditional property rights...

 

[Gawernator]

I read it a little differently. She acknowledges the levels of generality are an issue in Bruen and as argued in Wolford. It's written through the the lens of a Property Law professor, not a Constitutional scholar so naturally the focus is a bit more centered on poaching and ones traditional property rights in the 1700-1800s. There is an obvious self-interested statement that SCOTUS should dig more into property rights when historic analogs deal with traditional property rights...

I actually agree with most of that characterization of the article. I don't think Brady misunderstands Bruen or property law. My disagreement is with her conclusion.

The owner's right to exclude was never the constitutional issue. The issue was whether the state can redefine the default for every owner in a way that effectively burdens the exercise of a constitutional right.

That's why I think the majority has the better argument. They didn't ignore property rights—they recognized them, but concluded they don't justify the state imposing a universal anti-carry default on behalf of every private business open to the public.

A private business can still tell you no guns allowed. The state just can't take away everyone's right by default with a vampire law.

 

[john_marsten_1873]

I like this thread, it brought out some great insight into how people think..

I’m backing out so as to not feed any trolls

In my opinion, threads like these are trollish by nature.

The OP - and many others - are upset with everyday Americans because they don’t interpret the 2A in a manner that serves them.

Then they argue the language of the 2A is absolute while in the same breath, contradicting their own claims by adding selective context that’s supposed to support the argument but instead just immediately dismantles it.

THEN they get mad at others for saying the 2A is interpretable.

The crazy thing is that the current federal government is (was supposed to be) perhaps the best opportunity we’ll have in a very long time to pass laws or issue decisions that reduce and prevent further restrictions on the firearms.

But you don’t hear a single word of criticism towards the people and bodies that can change laws today yet basically refuse to do so.

 

[Gawernator]

In my opinion, threads like these are trollish by nature.

The OP - and many others - are upset with everyday Americans because they don’t interpret the 2A in a manner that serves them.

Then they argue the language of the 2A is absolute while in the same breath, contradicting their own claims by adding selective context that’s supposed to support the argument they dismantled.

THEN they get mad at others for saying the 2A is interpretable.

The crazy thing is that the current federal government is (was supposed to be) perhaps the best opportunity we’ll have in a very long time to pass laws or issues decisions that reduce and prevent further restrictions on the firearms.

But you don’t hear a single word of criticism towards the people and bodies that can change laws, today.

Well thanks Trump admin for actually doing that, and suing the state of CA over their tyrannical laws.

 

[adrkwan]

I actually agree with most of that characterization of the article. I don't think Brady misunderstands Bruen or property law. My disagreement is with her conclusion.

The owner's right to exclude was never the constitutional issue. The issue was whether the state can redefine the default for every owner in a way that effectively burdens the exercise of a constitutional right.

That's why I think the majority has the better argument. They didn't ignore property rights—they recognized them, but concluded they don't justify the state imposing a universal anti-carry default on behalf of every private business open to the public.

A private business can still tell you no guns allowed. The state just can't take away everyone's right by default with a vampire law.

What about her conclusion do you disagree with? I think she just said we need to nerd out on property laws (or other subject matter) when dealing with Bruen's analogs. I don't disagree with her statement, but I don't think she really made a characterization on whether Bruen was correctly applied in Wolford.

I felt she sided more with Hawaii, specifically her section on signalling. She made some references to other First Amendment challenges but it misses the point. You can bar protest or flyers on your property because allowing them would be compelled speech. Having a CCW on your premises doesn't violate your own right to bear arms. Having someone who steps onto your property hangs up Newsom 2028 flyers is compelling you to pro-Newsom speech.

 

[No_glonks]

Well thanks Trump admin for actually doing that, and suing the state of CA over their tyrannical laws.

LA can thank Trump administration for greatly reduced processing and issuing time.

I wish DOJ have done more, even Glock ban and roster was filed half ass way.

 

[Hit Factor]

I like this thread, it brought out some great insight into how people think..

I’m backing out so as to not feed any trolls

Yeah, it was a rhetorical question to begin with. I actually find it astonishing that the term “the people” can be thought to exclude any of us when it comes to the right to keep and bear arms — especially on a gun forum! I know that King George’s attempted gun and powder confiscation from colonial militias was the primary catalyst for the Battles of Lexington and Concord, but if the scope of the 2nd Amendment’s protection was intended to be limited to just militias, why doesn’t it just say “the right of the militia to keep and bear arms” instead of the intentionally drafted and ratified phrase “the right of the people”? Do the Antis here also believe that the phrase “We the People” in the Preamble only applies to some and not all? I guess it’s time to bring back Schoolhouse Rock! from the ‘70s . . .

In the meantime, here is a little light reading that ALL Americans today can benefit from (yep, We the People): https://www.americas1stfreedom.org/content/how-gun-confiscation-sparked-the-american-revolution/

 

[john_marsten_1873]

why doesn’t it just say “the right of the militia to keep and bear arms” instead of the intentionally drafted and ratified phrase “the right of the people”?

One could argue that dropping the “militia” altogether would’ve been more clear:

“Being necessary to the security of a free state, the right of the people to keep and bear
arms, shall not be infringed.”

Or perhaps

“The right of the people to keep and bear arms, being necessary to the security of a free state, shall not be infringed.”

I might then argue that “keep” is still important context for when forming a militia becomes necessary. And around we go…

Most people’s first instinct is to argue for the outcome they want and make the facts fit around it. I think many of us here try to separate ourselves from that impulse so we can better understand the argument or problem on its own merits.

However, we’ll just have to continue let our courts and politicians tell us how it should be interpreted as has been done since its inception.

 

[grandpapeepap]

also at first the 2a only applied to the feds before the incorporation doctrine happened, then again most of the og 13 and states at the time of 1865ish had their own versions of a 2a in their state constitutions

 

[john_marsten_1873]

LA can thank Trump administration for greatly reduced processing and issuing time.

I wish DOJ have done more, even Glock ban and roster was filed half ass way.

Yet California still has a handgun roster and all the standard sized guns are only sold with mag capacities that don't even extend to the full length of the grip. Or you have to risk permanent deafness to yourself and your family when defending your home.

Control of all 3 branches of federal government: 6-3 SCOTUS majority. Control of congress and the executive.

There's an increasing risk of losing the house and the senate in the mid-terms. If that happens, dems will block any new SCOTUS nominations.
On the current trajectory they'll likely win in 2028 and try to pack the court or just wait out 2 more SCOTUS justices while retiring and replacing the aging liberal justices...

If we thank them for pennies, that's all we'll ever get.

 

[MK6M9]

Just ask SCOTUS with a 6-3 conservative majority

and that did what ?

 

[MK6M9]

Hallelujah. Those 3 are hell bent on taking away our rights

they are winning (shrugs)

 

[MK6M9]

Anyone who believes Bruen is a tablet handed down from on-high only needs look at what happened to Roe v. Wade.

exacly.... why not remove the people who keep making these bills/ laws, so that one does not have to keep filing these meaningless lawsuits. it is also the other california politicians that are not in the public eye

 

[MK6M9]

no one on this topic, let alone this website, has any actual care and/or will for any of this. they just want to rant about it every day here on this forum and nothing more.

 

[Gawernator]

no one on this topic, let alone this website, has any actual care and/or will for any of this. they just want to rant about it every day here on this forum and nothing more.

I ain't dying for this bruh, good luck in your revolution though

 

[grandpapeepap]

yup no one else is active in their community or local politics and offices.

 

[MK6M9]

In my opinion, threads like these are trollish by nature.

The OP - and many others - are upset with everyday Americans because they don’t interpret the 2A in a manner that serves them.

Then they argue the language of the 2A is absolute while in the same breath, contradicting their own claims by adding selective context that’s supposed to support the argument but instead just immediately dismantles it.

THEN they get mad at others for saying the 2A is interpretable.

The crazy thing is that the current federal government is (was supposed to be) perhaps the best opportunity we’ll have in a very long time to pass laws or issue decisions that reduce and prevent further restrictions on the firearms.

But you don’t hear a single word of criticism towards the people and bodies that can change laws today yet basically refuse to do so.

no one here actually cares or has the will, they just want to rant about it, give emojis and then nothing more.

 

[MK6M9]

no one here actually cares or has the will, they just want to rant about it, give emojis and then nothing more.

see how this grandpapeepap does just that? comes in with their one liners of opposition and then gives an emoji and then nothing more. (shrugs) comical. pathetic

 

[grandpapeepap]

i am the militia B

 

[john_marsten_1873]

no one here actually cares or has the will, they just want to rant about it, give emojis and then nothing more.

We've been having the same argument for 234 years. Most folks have to wake up and go to work tomorrow. When it becomes difficult for the overwhelming majority to earn/afford basic needs (food and shelter), only then will people care about change