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Justice Ginsberg's view of the Second Amendment
Interview here.
"In the wake of the fierce, nationwide debate over gun rights and gun control, Justice Ginsburg also explained the historical basis for her view on the Second Amendment.
"The Second Amendment has a preamble about the need for a militia ... Historically, the new government had no money to pay for an army, so they relied on the state militias," she said. "The states required men to have certain weapons and they specified in the law what weapons these people had to keep in their home so that when they were called to do service as militiamen, they would have them. That was the entire purpose of the Second Amendment."
Ginsburg said the disappearance of that purpose eliminates the function of the Second Amednment.
"It's function is to enable the young nation to have people who will fight for it to have weapons that those soldiers will own," she said. "I view the Second Amendment as rooted in the time totally allied to the need to support a militia. So ... the Second Amendment is outdated in the sense that its function has become obsolete."
As for the Heller case, decided by the court in 2008, Ginsburg says the court erred in its decision.
"If the court had properly interpreted the Second Amendment, the Court would have said that amendment was very important when the nation was new," she said. "It gave a qualified right to keep and bear arms, but it was for one purpose only — and that was the purpose of having militiamen who were able to fight to preserve the nation.""
I won't go into the historical angle (the shortfall of money was one reason for a militia, but it was one almost never mentioned at the time -- the big argument for the militia was that it could be as powerful as desired without any risk of it taking over the government, unlike a standing army), but into the reasoning. One of the many problems with the collective rights view is that its proponents never want to consider their theory's results -- which would be that any State could revive its militia system and presumably arm it as the State pleased. M-4s, SAWs, F-16s. The Justice deals with that by saying that the Second Amendment has become "obsolete" and presumably inoperative in *any* way.
I don't see any precedent (legal or historical) for the Court to simply declare a provision in the "Supreme law of the land" obsolete, i.e., not fitting in with their world-view. There are plenty of constitutional provisions which some might think obsolete. A government which deploys the NSA certainly seems to think the Fourth Amendment obsolete in an age of terror. The $20 threshold on civil right to jury is certainly obsolete, but still followed. How about the right to petition? In early Congresses, each petition was read aloud -- now, I suspect they are given the circular file.
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Is it really so much to ask, that our Supreme Court justices be educated in the history of our constitutional republic and the history of our Bill of Rights? Self-induced ignorance is not becoming in a justice.
The militia clauses of the constitution would have quite adequately served the purpose Ginsburg describes. That cannot be the explanation for a bill of RIGHTS provision. The primary (but not only) purpose of the Second Amendment is obviously to ensure a balance of power AGAINST the government, in the hands of the people. Not to serve the government, but to prevent the government from disarming the people.
So if "the people" in the 2nd Amendment means "the state", does Ginsberg believe that all rights reserved for "the people" are actually rights of the state, not the people? Or does she just assign each instance of a word any arbitrary meaning that fits her desired outcome?
Ginsburg's remarks shows it dawning on the Anti-Gunners, Radical Left, and Team Obama how difficult it is to change or do away with an amendment. I don't believe any of the above have the staying power to make the changes.
She should rember the Holocost!
One more like her on the SC and we Patriots will all get the ring side seat to see if this great Constitutional Republic will stand.
Molon Labe traitors.
She's saying HER opinion supersedes that of the Founders. They sought to BAN or prevent the "rule of men" over the "rule of law", and this so-called jurist is overstepping her bounds, completely. *And* she's unelected and will make law til she's dead. She and Pres. Obama are hoping that the balance in the Black Robes will tip soon so they can shut down 2A. As said in Planet of the Apes, "Goddamn them (the antis) to Hell!"
Hi to the NSA; you guys are my favorite agency. JK
Liberals' view of "the people" in the Second Amendment:
‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone, ‘it means just what I choose it to mean, neither more nor less.’
Her "interpretation" makes no sense whatever. She says, in essence, that the States required the people to be armed to support a militia and the Second Amendment was needed to prevent the States from taking arms from the people.
In any other court in almost any other case, Ginsberg would have to recuse herself in future hearings on this issue. Now all that can be done is to counter her ahistoric and non-textual interpretation. And since when have honorable justices of this court been told that they have the right to interpret the Constitution rather than enforcing it?
The Justices and the politicians continue to chip away at constitution until there will be no rights.so what ever form of government that governs ,the first ones to be out of a job will be the SC and the Politicians, most likely they will become political prisoners.Not thinking about the fact that they too have children,grand children,family that will have to live in the oppressed nation and nobody to come to there defense because they to will be subdued,to do the bidding of a tyrannical government.It is the inheritors of the country who will suffer the greatest pain,all because men and women thinking themselves superior think they know whats best for you and i..
Are her mental faculties declining? Has she even looked at the Federalist Papers' discussions?
She has a valid opinion that may possibly be correct about the militia. However her fault lies in the fact that she feels it is her right to amend the Constitution from the bench and that is a fault that should immediately disqualify her from any judicial position, appointment or ruling.
If indeed the people agreed with her than it is up to the states to change the Constitution and remove the second amendment. Not her right to legislate it from the bench.
In her reading, apparently the 2nd Am gave the states the power to contradict a 'deficient' federal militia law. But in 1820, the Supreme Court held that federal militia law entirely pre-empts state militia laws, even while expressly conceding that the current federal militia laws were deficient.
It's an important precedent -- Houston v. Moore -- and it pre-dates federal preemption under interstate commerce by four years.
Why is militia caselaw not at the center of the 2nd Am debate? Ginsburg et al should have to defend their theory by reference to militia case law. "Put up or shut up."
When you realize just how high in government the truly ignorant can rise, it's nigh on impossible to retain any respect for government whatsoever.
anon: I have to ask does it feel better when you stop beating your head against the wall? Why would you want to retain any respect they lost any right to it decades ago.
In 1876 US V Cruikshank, the Court stated that the Right to keep and bear Arms was not granted, but merely enumerated in the 2nd. They did err because they relied on Barron 1833 to say the 2nd only bound the Feds.
But Ginsburg has proven she can't read. SOme months ago she stated the the United States were even called thee United States in the Declaration BUT the declaration says thirteen united States of America. Totally of a different meaning.
She is as ignorant as any.
Some States are already starting to work to revive their State Militias, in the next session of the Missouri congress there will be a bill to revive Missouri's State Militia, or State Guard. Seperate from the State's National Guard, that can be called into active service by the US army, the State Guard would be under the direct control of the Governor, and would not be able to be called into Active duty for the US Military. There is at least 4 other States that have submitted bills, or are drafting bills to do the same.
And to think, this dried up brain dead old biddy sits on the US Supreme Court. Guess she forgot that she is bound by original intent. It is obvious that she fails to understand the Bill of Rights are individuial right, the states or government do not have rights, they have powers. The Bill of Rights preserves what are considered as existing rights, it does not grant rights. Good grief, and to think we pay her salary.
For the benefit of those who may not know, the Founders of this purely unique and wholly American Constitutional Republic form of government provided a brief statement with regard to their purpose and intent for declaring and enumerating specific ‘Rights’ of all Freemen in the Constitution of the United States.
[Excerpt:]
“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
RESOLVED…”
Note: One particular ‘further declaratory and restrictive clause’ added ‘in order to prevent misconstruction and abuse of its powers’ ( ‘powers’:- meaning only those few and expressly limited ’powers’ granted only by consent of ‘the people’ to those within and acting on behalf of the ’Federal’ government ) as follows:
Amendment II
“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.”
http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html
The National Guard is a federal, not state institution. It's not a militia. It's a branch of the federal armed services.
So you are smarter than a constitutional lawyer and Supreme Court Justice? Really? You are more qualified to discuss constitutional history. Well, my man, hats off to you!
In fact, cost was a prominent consideration in the drafting of the 2nd Amendment. In Federalist Papers 29, Hamilton argues, "A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it.
"To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured."
He goes on to discuss the organization of citizen militias: "Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year." That is to say, a disorganized private right to bear arms not for the purpose of national defense is not advocated.
Continuing, Hamilton writes: "But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it.
"This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."
Elsewhere in Federalist 29, he circumscribes this defense against tyranny by the "inconceivable " example not of private citizens bringing arms bear against a tyrant, but of the militia of one state being persuaded to march to and make war against the militia of another, distant state.
The 2nd Amendment, seen in the light of Federalist 29, is a federal claim of prerogative to commandeer the state militias for purposes of common defense, not a guarantee of personal ownership of weapons for individual reasons. The fact that the federal government did later establish a national defense force (army, navy, marines) lends substance to Justice Ginsgerg's argument that the 2nd Amendment outlived its purpose. Other provisions of the Consitution pertaining to voting rights and due process have at times been modified, superseded, or otherwise effectively retired as our society has evolved. One can certainly argue about the best means for doing so, but one should try to be aware of and honor the source material behind our laws.
Is Trump the new 2016 Hitler?
Jeff I don't see the connection
Yes, James. Please explain about the Holocaust to Jews. We really love it when you do that.
The Articles of Confederation, which governed the United States until the Constitution was adopted expressly forbids the Federal government from maintaining a standing army. The second amendment to the newly adopted Constitution is best viewed as the attempt to meet national defense needs without the necessity of a standing army by providing a well regulated militia in each of the states.
Then run for government. It's so easy to sit behind a keyboard a spout your googled case law. If you think changes should be made then do something about it!
So glad I live in Canada where we don't have to put up with this idiotic American garble. Buy your " rightfully owned weapons" and you'll all just kill each other. Morons as always
Justice Ginsburg,
I offer this thought for you to consider.
Our current threat, DEASH a.k.a. ISIS has declared war on US cifezens but not as a conventional Army so aren't armed citizens more important now then in say the past 100 or so years?
The whore Ginsburg needs a history book not written by Saul alinskyy. The term "militia" has been bastardized from its original meaning of all military aged males fit for duty, not into its current meaning of a bunch of yokels from Michigan. The fact that this whore bastardized the constitution to fit her party's world vision shows her ineptness to judge and opine on any case. This is a dangerous person to be be in such a position so highly revered.
Also the fact that there is still the selective service/draft in law. Are all of these outdated? Some of us remember the Oaths we took to enter public service, obviously she does not!
I.e. Trump
Um, to interpret the laws of the land, which includes our constitution, IS the function of the judicial branch of our government. The legislative branch creates the laws, the judicial branch interprets what the laws mean, and the executive branch enforces the laws. That's basic elementary school knowledge; at least when I was in elementary school less than 20 years ago anyways.
I object to the word whore for Justice Ginsburg and I rather would use it for all the politicians, Republican and Democrat, who receive contributions from the weapon industry and the NRA
"militia" has a meaning of an organized group of citizens, chosen by the people to protect the State from warlike actions. "militia" to me means an authorized group of citizens, specifically chosen and in its format means a special group specifically designated to protect slavery. "Militia" to me does not mean, in any interpretation, that it is expand d to include all persons; to me it implies an authorized group of citizens the right to a fully, legally armed group of designated citizens and n lieu of the Militia tart. When the Amendment was passed the Country did not have. Enough money to subsidize the Army, Navy or Marines - therefore the Militia, funded by the States.
HGS, Esq., JD. Yale Law School '54
No, she doesn't quite say that. Read again... But for those who think WeThePeople should have guns to "defend" ourselves from a tyrannical gov't (more than it already is, i.e.!), please realize that this USA Gov't has weapons galore, nukes, chemicals: I doubt WeThePeople would "win" with our "guns"!!
I'm with Ginsburg - and was before I read her opinion. GUNS are for killing. Therefore, what is the need except for:
highly vetted/background-checked/trained/licensed HUNTERS, topnotch and well-paid SECURITY, TARGET Ranges, and POLICE.
IF it is insisted that civilians have such weaponry, it should be low=level but effective, also with thorough background checks/waiting periods/ other vetting/ fingerprinting (for the above, too) etc., as well as excellent training and licensing - and with the provision that the weapons must be kept empty, locked up; ammo nearby, locked up. Accountability for this every year - random checks, even with home visitations, as arranged, and hopefully welcomed by the owners of the guns.
GUN STORES: huge accountability and big penalties for not following this protocol. NO SALES AT GUN SHOWS, with the flexibility of being referred to licensed stores after the Shows. NO black market. Etc.
LET'S GET GUNS OUT OF OUR LIVES... Let's develop community - including community policing and localization of production and family and individual involvement.
YES, Mental Health Centers, even for minor support, let alone the more serious cases. Make it fashionable to connect with a Counselor - for life skills, conflict resolution, anger mangagement, etc.
THERE ARE FEWER GUN CRIMES IN COUNTRIES WHERE THERE ARE FEWER GUNS!!
duh.
OM ~ try it, it works!
The anti- Gun people are a critical danger to our United States Country. They have NO idea how we got our Freedom and Rights, nor how easily it all could be taken if it wasn't for our great 2ND AMENDMENT. It is the only thing that physically backs our Power of the People here in the United States, and is also the only physical thing We the People of the United States have protecting us from an internal threat of tyranny.
The United States Military does NOT at all protect from an internal threat of tyranny, nor does the U.S. Military back our Power of the People here in the United States. For We the People of the United States do NOT hold or have any authority or control over the U.S. Military. It is only the very same people who could possibly at any time commit an internal threat of tyranny, those in Government Power, and they are also the same people who hold and have all authority and control over the U.S. Military. So this speaks loud why we should keep our great 2ND AMENDMENT. Unless we want the big trouble of an easy takeover of our Country and that we as a powerless people could do nothing about. All we could do as a powerless people is to watch our Country crash and burn as we know it now. For without our great 2ND AMENDMENT, or even to have it infringed anymore than the infiltrating commies of the U.S. Government and Courts have already criminally done- as it would crucify our United States Country in a flash! So quick- the anti- 2ND AMENDMENT U.S. liberals would be totally bewildered and stunned for how quick and easy it would happen!
Once we lost our Power of the People, i.e. our great 2ND AMENDMENT protection, we could NOT get it back. Once gone, it would be gone for good, and then we would learn the hard way as to how greatly it had protected us.
Anyone who understands the ability of Guerrilla Warfare, understands just how great our 2ND AMENDMENT stands to deliver our protection as a People of the United States. It also keeps our U.S. Government Power strongly in check!
A GOOD reason the old HAG should have NEVER been on the SCOTUS.
I guess under Ms. Ginsburg's reasoning Eisenhower was wrong to nationalize the Arkansas National Guard to forcibly integrate the schools. After all, if the militia is a check on federal power, how could it Constitutionally be permissible for the President to nationalize it to enforce federal policy against the state?