PDA

View Full Version : Why the Second Amendment must be read to protect carry outside the home.


Tincon
10-31-2013, 7:59 PM
The United States Supreme Court holdings on the Second Amendment and self-defense require that the right to bear arms be recognized outside the home.

The right to bear, or carry, arms is predicted by the Second Amendment. “At the time of the founding, as now, to ‘bear’ meant to ‘carry.’” Heller, 554 U.S. 570, 584 (interpreting the meaning of the operative clause of the Second Amendment). The US Supreme Court has embraced the meaning of “carries a firearm” as to “wear, bear, or carry ... upon the person or in the clothing or in a pocket, for the purpose ... of being armed and ready for offensive or defensive action in a case of conflict with another person.” Id. at 584. By this definition it would be awkward to read “carry” as an exclusively residential activity. But it would also be contrary to the core purpose of the Second Amendment.

The US Supreme Court has held that a law which “makes it impossible for citizens to use [handguns] for the core lawful purpose of self-defense . . . is hence unconstitutional.” Id. at 630. The threat of unlawful attack certainly is not contained to residences. Justice Stevens conceded as much in his dissent in Heller, mentioning, “the reality that the need to defend oneself may suddenly arise in a host of locations outside the home . . . .”) Id. at 679. Indeed, the need for self-defense may be even stronger outside the home, where there are no strong doors and walls between attackers and their potential victims.

Furthermore, the US Supreme Court has long held that the right of persons to defend themselves, even using deadly force, extends beyond the home. In Brown, the US Supreme Court held that “if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not succeeded the bounds of lawful self defence.” Brown v. United States, 256 U.S. 335, 343 (1921). Also in Brown, the Supreme Court addressed the argument that the right to self-defense was somehow diminished outside the land or living quarters of the person exercising that right. The Court rejected that argument, holding that “it is true that in the case of Beard he was upon his own land (not in his house,) and in that of Rowe he was in the room of a hotel, but those facts, although mentioned by the Court, would not have bettered the defence by the old common law and were not appreciably more favorable . . . .” Id. at 344.

Accordingly, it is clear that the right of self-defense extends beyond the home and to any place where a person has a lawful right to be. And, as the US Supreme Court has held, the core purpose of the right to carry arms is self-defense. Heller. at 571.Therefore any law which prevents a person from carrying arms in a place where he has a right to be, and thus makes it impossible to exercise his right to use such arms in self-defense, is necessarily unconstitutional. The only exceptions are for longstanding prohibitions on carry in “sensitive places” which the Supreme Court has specified includes “schools and government buildings.” Id., at 626. This is, however, the exception that proves the rule. There would have been no need for the Supreme Court to have carved out exceptions for carry in “sensitive” public places if the Second Amendment applied only within the home.

Statutes which effectively prohibit all carry of firearms by any law-abiding citizens outside the home prevent these citizens from exercising the right to bear arms for self-defense beyond the threshold of their dwellings. This leaves them effectively defenseless, potential victims of criminals who have no respect for any such prohibition on carrying arms. This absolute denial of the right of self-defense is a violation of the Second Amendment rights afforded all citizens of the United States and is therefore unconstitutional. Q.E.D.

Tincon
10-31-2013, 8:01 PM
Note: I created and own the content above. Feel free to use for whatever purpose, without restriction. I'd appreciate a cite to this page/site, but no need wherever it would be inappropriate or inconvenient. I have already addressed "Why Heller and McDonald mandate strict scrutiny of 2A cases (http://www.calguns.net/calgunforum/showthread.php?t=844273)" and I will soon explain "Why restrictions of carry outside the home must be deemed unconstitutional under even intermediate scrutiny." At some point I'll also address why AR and AK platform rifles must receive Second Amendment protection, and why bans on those weapons must be deemed unconstitutional under even intermediate scrutiny.

SC_SD
10-31-2013, 8:42 PM
Extremely well written, thank you.

SC_SD
10-31-2013, 8:50 PM
Also, a very comprehensive write up by Eugene Volokh that covers a lot of ground, with citations. Great read. (http://www2.law.ucla.edu/volokh/2am.pdf)

Epaphroditus
10-31-2013, 10:19 PM
Article 1 section 1 of California constitution clearly acknowledges the right of defense but there are plenty of laws that make the carry of a weapon (like a spear - 400,000 years of human history using spears) explicitly for defense a crime. No need for the US con and 2A, etc when we already have CA specific systemic problems. CA supreme court has dropped the ball so many times they seem not even to bother anymore with even a pretense of upholding the CA constitution.

Single issue? No, start at article 1 section 1 and work down the list in numerical order.

Tincon
10-31-2013, 10:28 PM
CA supreme court has dropped the ball so many times they seem not even to bother anymore with even a pretense of upholding the CA constitution.

Exactly why we DO need the US Constitution and the Second Amendment.

BobB35
11-01-2013, 7:11 AM
The United States Supreme Court holdings on the Second Amendment and self-defense require that the right to bear arms be recognized outside the home.

The right to bear, or carry, arms is predicted by the Second Amendment. “At the time of the founding, as now, to ‘bear’ meant to ‘carry.’” Heller, 554 U.S. 570, 584 (interpreting the meaning of the operative clause of the Second Amendment). The US Supreme Court has embraced the meaning of “carries a firearm” as to “wear, bear, or carry ... upon the person or in the clothing or in a pocket, for the purpose ... of being armed and ready for offensive or defensive action in a case of conflict with another person.” Id. at 584. By this definition it would be awkward to read “carry” as an exclusively residential activity. But it would also be contrary to the core purpose of the Second Amendment.

The US Supreme Court has held that a law which “makes it impossible for citizens to use [handguns] for the core lawful purpose of self-defense . . . is hence unconstitutional.” Id. at 630. The threat of unlawful attack certainly is not contained to residences. Justice Stevens conceded as much in his dissent in Heller, mentioning, “the reality that the need to defend oneself may suddenly arise in a host of locations outside the home . . . .”) Id. at 679. Indeed, the need for self-defense may be even stronger outside the home, where there are no strong doors and walls between attackers and their potential victims.

Furthermore, the US Supreme Court has long held that the right of persons to defend themselves, even using deadly force, extends beyond the home. In Brown, the US Supreme Court held that “f a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not succeeded the bounds of lawful self defence.” [I]Brown v. United States, 256 U.S. 335, 343 (1921). Also in Brown, the Supreme Court addressed the argument that the right to self-defense was somehow diminished outside the land or living quarters of the person exercising that right. The Court rejected that argument, holding that “t is true that in the case of [I]Beard he was upon his own land (not in his house,) and in that of Rowe he was in the room of a hotel, but those facts, although mentioned by the Court, would not have bettered the defence by the old common law and were not appreciably more favorable . . . .” Id. at 344.

Accordingly, it is clear that the right of self-defense extends beyond the home and to any place where a person has a lawful right to be. And, as the US Supreme Court has held, the the core purpose of the right to carry arms is self-defense. Heller. at 571.Therefore any law which prevents a person from carrying arms in a place where he has a right to be, and thus makes it impossible to exercise his right to use such arms in self-defense, is necessarily unconstitutional. The only exceptions are for longstanding prohibitions on carry in “sensitive places” which the Supreme Court has specified includes “schools and government buildings.” Id., at 626. This is, however, the exception that proves the rule. There would have been no need for the Supreme Court to have carved out exceptions for carry in “sensitive” public places if the Second Amendment applied only within the home.

Statutes which effectively prohibit all carry of firearms by any law-abiding citizens outside the home prevent these citizens from exercising the right to bear arms for self-defense beyond the threshold of their dwellings. This leaves them effectively defenseless, potential victims of criminals who have no respect for any such prohibition on carrying arms. This absolute denial of the right of self-defense is a violation of the Second Amendment rights afforded all citizens of the United States and is therefore unconstitutional. Q.E.D.

Good analysis. Just two points that I think make it invalid.

1. You are using logic and precedent to make your argument. The SCOTUS and other courts have shown they care about neither on this issue and will do everything they can to suppress it.

2. You are expecting the SCOTUS to overrule the states and the circuits and they will not. They have already demonstrated a disdain for the Constitution and have shown their willingness to to create taxes and laws to meet their own purpose depending on political expediency.

The Rule of Law has broken in this country and there is only one outcome. Whether it happens today, tomorrow, next month or next decade the die is cast and the path is set, there is no going back and the arc of civilization will turn again. We are sliding down toward tyranny and that will not stop

PS: When you use the word Require and SCOTUS in the same sentence you are in trouble. Evidence has shown from Marbury V Madison on that the SCOTUS will piss on the Constitution, create law and perform mental gymnastics to suit their political needs, which is why I have no faith in them doing what you expect them to.

Tincon
11-01-2013, 11:03 AM
There is a difference between saying my logical analysis of precedent is invalid (is isn't), and saying the Supreme Court will ignore logic and precedent and do whatever it wants.

BobB35
11-01-2013, 12:10 PM
There is a difference between saying my logical analysis of precedent is invalid (is isn't), and saying the Supreme Court will ignore logic and precedent and do whatever it wants.

I apologize if I was not clear in my meaning. I think your argument is valid, I think the conclusion you draw around what the SCOTUS MUST DO is invalid.

One of the basic assumptions left out of almost all arguments is that the actors are rational and will behave the same way given the same situation.

Because the SCOTUS is neither rational nor does the same thing given the similar situations, you can at best attempt to apply logic, but in no way presume to determine how they will rule.

This is the problem with the LAW as it is now practiced. Everything is relative and open to interpretations.

M. D. Van Norman
11-01-2013, 1:41 PM
Accordingly, it is clear that the right of self-defense extends … to any place where a person has a lawful right to be. And, as the US Supreme Court has held, the core purpose of the right to carry arms is self-defense.… Therefore any law which prevents a person from carrying arms in a place where he has a right to be … is necessarily unconstitutional.

It’s clear to you and to me but apparently not to the lower courts … and the Supreme Court doesn’t look like it will do a damned thing about that. :mad:

hardlyworking
11-01-2013, 5:37 PM
I'm not nit-picking, I'm helping to make it juuuuust right:
the the core purpose needs a once over, 5th paragraph, otherwise, rock-on!

bohoki
11-01-2013, 5:52 PM
if it doesn't then it would be meaningless

Tincon
11-01-2013, 6:25 PM
I'm not nit-picking, I'm helping to make it juuuuust right:
needs a once over, 5th paragraph, otherwise, rock-on!

Fixed!

Mithrandir13
05-19-2014, 5:23 PM
Tincon.... awesome thread.... I feel you nailed it in your first post....

but to help people understand better... the current crop of government employees are all about making it better for themselves.

Why is there so much discussion about 2nd amendment rights and self defense? Why do "They" endlessly attempt to legislate away our 2nd amendment right to keep and bear arms???

Not to make "Us" safer... but to make "Them" safer.... this is all about power and control....

Corruption!!!

Sorry if this in any way diminished your thread.... I feel very strongly that those who ought to be representing the people, and our best interests and our freedoms are failing in favor of making their own lives better.....

Occasionally, such as Heller and McDonald, the supreme court does get it... and they get it right... really, SCOTUS really is our last hope through "Due Process".. to protect the people...

But your first post was really great!!

tnx

Drivedabizness
05-19-2014, 7:33 PM
Note: I created and own the content above. Feel free to use for whatever purpose, without restriction. I'd appreciate a cite to this page/site, but no need wherever it would be inappropriate or inconvenient. I have already addressed "Why Heller and McDonald mandate strict scrutiny of 2A cases (http://www.calguns.net/calgunforum/showthread.php?t=844273)" and I will soon explain "Why restrictions of carry outside the home must be deemed unconstitutional under even intermediate scrutiny." At some point I'll also address why AR and AK platform rifles must receive Second Amendment protection, and why bans on those weapons must be deemed unconstitutional under even intermediate scrutiny.

A well written, well sourced, well thought out line of thought. I am not KCBrown and I still have absolutely no faith in the people in black robes to get it right. Why you might ask? Because they feel no fidelity to the Constitution.

wjc
05-19-2014, 7:38 PM
You make some excellent points, Tincon, but I can simplify it.

"....shall not be infringed."