What exactly have we won in D.C. v. Heller?

Discussion in 'Gun Control' started by BryanVa, Sep 8, 2015.

  1. BryanVa

    BryanVa Well-Known Member

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    I would like to take an in-depth look at the scope of D.C. v. Heller to see if we can all understand what this ruling has done for gun rights—and to see how limited this ruling really is. I am only trying to explain what the ruling is, not whether I think it is a good one or not. I’ll offer my opinions later.

    Heller certainly has ruled that the 2nd. Amendment recognizes an individual RKBA. It has not, however, been used to invalidate many current restrictions on the RKBA. The question many people have is why not?

    To understand why we need to first understand that SCOTUS rulings are limited to deciding the precise issues that are raised, and so decisions on rights are made piecemeal. Here is the specific factual issue in the case:

    The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered [Page 575] firearm, and the registration of handguns is prohibited. See D. C. Code §§ 7-2501.01(12), 7-2502.01(a), 7-2502.02(a)(4) (2001). Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. See §§ 22-4504(a), 22-4506. District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, “unloaded and disassembled or bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities. See § 7-2507.02.1

    Respondent Dick Heller is a D. C. special police officer authorized to carry a handgun while on duty at the Thurgood Marshall Judiciary Building. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of Columbia seeking, [Page 576] on Second Amendment grounds, to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of “functional firearms within the home


    District Of Columbia v. Heller, 554 U.S. 570, 574-576 (2008) (bold emphasis added)

    So the claim is based upon the 2nd. Amendment and a claim that the laws unreasonably restrict the right of self-defense in the home. The Court addresses this issue by first finding the 2nd. Amendment recognizes an individual RKBA and that self-defense is a core function of the right. Here is the ultimate holding of the case:

    In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

    We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 626-627, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct
    .

    District Of Columbia v. Heller, 554 U.S. 570, 635-636 (2008)

    Note from the holding that the Court DID NOT strike down either the registration or the licensing requirements. This should not be looked upon as the court’s blessing of these restrictions, however. The court did not rule upon these restrictions because Heller ultimately chose not to demand the Court make a ruling on them:

    Before this Court petitioners have stated that “if the handgun ban is struck down and respondent registers a handgun, he could obtain a license, assuming he is not otherwise disqualified,” by which they apparently mean if he is not a felon and is not insane. Brief for Petitioners 58. Respondent conceded at oral argument that he does not “have a problem with . . . licensing” and that the District's law is permissible so long as it is “not enforced in an arbitrary and capricious manner.” Tr. of Oral Arg. 74-75. We therefore assume that petitioners' issuance of a license will satisfy respondent's prayer for relief and do not address the licensing requirement.

    District Of Columbia v. Heller, 554 U.S. 570, 631 (2008) (bold emphasis added)

    This again is the Court sticking to how it always rules: rule only on those issues necessary to decide the case. The Court does, however, frequently give hints for future rulings by mentioning without deciding issues that have not been raised.

    One issue the Court does give its opinion on is the scope of the 2nd. Amendment and what the words “shall not be infringed” mean. They are written in the absolute, as are many other rights in the BoR. The Court does give its opinion that the 2nd. Amendment should not be read to create an absolute right free from any regulation:

    There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment's right of free speech was not, see, e.g., United States v. Williams, 553 U.S. 285 (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

    District Of Columbia v. Heller, 554 U.S. 570, 595 (2008)

    And the Court goes on to state again that the RKBA is not unlimited:

    Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students' Blackstone 84, n. 11 (G. Chase ed. 1884).

    District Of Columbia v. Heller, 554 U.S. 570, 626 (2008

    And the Court then made a significant statement about the application of its ruling to current gun laws:

    Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing [Page 627] conditions and qualifications on the commercial sale of arms.26

    District Of Columbia v. Heller, 554 U.S. 570, 626-627 (2008

    And see the footnote (#26):

    We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

    District Of Columbia v. Heller, 554 U.S. 570, 636 (2008 (bold emphasis added)

    “Presumptively lawful” is a strong statement in favor of the constitutionality of many of our current gun laws….

    This includes the Court’s blessing for a continued ban on “machine guns,” which forced the Court to address the Miller case. Miller assumed the RKBA was an individual right, and it focused on the type of weapon the right protected. Miller declared that the prohibition on possessing a “sawed-off shotgun” was constitutional by tying the right back to the effectiveness of the militia, and it held this was so because there was no evidence showing the weapon had a valid militia function:

    “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U.S., at 178 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid.

    (as cited by) District Of Columbia v. Heller, 554 U.S. 570, 622 (2008

    Now Miller strongly suggests that private possession of modern military firearms would be protected because one could easily show their effectiveness to the militia. In Heller SCOTUS took a different view to justify the constitutionality of bans on “dangerous and unusual weapons” like “machine guns”:

    We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller's “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U.S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial [Page 625] and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973)). Indeed, that is precisely the way in which the Second Amendment's operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra….

    We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U.S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383-384 (1824); O'Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

    It may be objected that if weapons that are most useful in military service — M-16 rifles and the like — may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause [Page 628] and the protected right cannot change our interpretation of the right
    .

    District Of Columbia v. Heller, 554 U.S. 570, 627-628 (2008

    How will future laws be considered? This is a huge question the Court largely leaves unanswered. The Court typically uses “tests” to consider the constitutionality of laws. The direct invasion of fundamental rights tend to get the highest, most protective test, called “strict scrutiny.” SCOTUS declines to give us a test in Heller, basically saying “we will work it out later.” They do reject a new test Justice Breyer proposes (one that would allow the justices to decide cases based on whether they like the law or not without any restrictions on how they rule):

    JUSTICE BREYER moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests.” Post, at 689-690. After an exhaustive discussion of the arguments for and against gun control, JUSTICE BREYER arrives at his interest-balanced answer: Because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.

    We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted [Page 635] them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U.S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrongheaded views. The Second Amendment is no different. Like the First, it is the very product of an interest balancing by the people — which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

    JUSTICE BREYER chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. See post, at 720-721. But since this case represents this Court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U.S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us
    .

    District Of Columbia v. Heller, 554 U.S. 570, 634-635 (2008)

    So going forward we have no established test to measure the constitutionality of gun control laws (although in later opinions the Court has rejected the “rational relationship” test—which is the easiest test for laws to survive constitutional challenge.

    Note also the Court says: “And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home

    This says nothing about laws that restrict firearm possession OUTSIDE the home. The Court has left this area untouched other than to strongly suggest concealed carry laws remain constitutional.

    McDonald v. Chicago has since “incorporated” the 2nd. Amendment RKBA and enforced it against state and local infringement of the right. However, the bans in that case were very similar to those in Heller, and consequently McDonald, while applying the Amendment against the states, did not expand the scope of the protection beyond what Heller stated.

    So while Heller and McDonald have read the RKBA as an individual right that restricts the federal, state, and local governments, the battle is far from over regarding the scope of the protection the RKBA affords. In reality, the Court has done nothing more than recognize the right of self-defense and the RKBA allow you to have a handgun (and by implication common long guns) in your home for self-defense. Left unanswered is whether the government can “license” or “register” this possession; and to what extent the government can restrict the possession of firearms outside the home; and what test the Court will use to evaluate the constitutionality of any of these laws.

    I welcome your thoughts….
     
  2. Small Town Guy

    Small Town Guy Well-Known Member Past Donor

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    Can't say I disagree with anything you said and it gave me some good insights. I have a question....how do you think the Heller and Miller decisions affected lower court rulings?
     
  3. BryanVa

    BryanVa Well-Known Member

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    I have easy access to all Virginia state court opinions and the opinions of the federal district courts in Virginia and the 4th. Circuit Court of appeals. The lower court opinions I have seen are very much a mixed bag of reasons to limit Heller and uphold the several laws that are challenged. I have also seen two cases out of the federal 9th Circuit which suggest that court believes Heller says the RKBA has no real power outside the home—and one case which severely limits the power of the RKBA in the home in direct contradiction of Heller—a case 7 SCOTUS justices refused to take up (Scalia and Thomas were the only ones asking to review it). That was just this past June.

    In short, the doom and gloom prophecy that was preached by the anti-gun crowd in the immediate aftermath of Heller was all cry with no wolf. In my opinion, SCOTUS will have to take up a case and further clarify the RKBA—in particular its application outside the home. As it stands now the court-approved definition of the RKBA exists on the edge of a cliff, and it won’t take much for the anti crowd to push it off that edge.

    I remember when justice Sotomayor swore under oath at confirmation that she respected Heller and would uphold it. She did so because she needed the votes to be appointed, and knew she could not get them any other way. And as soon as she received her lifetime appointment she took the first chance she had to destroy Heller (in her dissent in McDonald). She conclusively proved that the confirmation hearings are a farce, and the only protection we have is in the election of the man or woman the Constitution trusts with the choice of who to appoint.

    This is why elections—and in particular 2016—are so important.
     
  4. Turtledude

    Turtledude Well-Known Member Donor

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    especially since there is a good possibility that the blatantly unconstitutional HUGHES AMENDMENT will probably come before a Supreme Court made up of justices appointed in the next few years
     
  5. Steady Pie

    Steady Pie Well-Known Member Past Donor

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    A system of higher law does very little to restrict a government. SCOTUS has shown itself to almost exactly mirror public opinion once that opinion holds a clear majority. They might lag behind a bit, but they basically move the constitution with the will of the majority.

    For a document intended to protect minority rights against the transgression of the political mob, this is terminal. Give it time and they will justify UK style gun bans. Gun control in the U.S. Will come when public opinion clearly shifts to support it.

    I find it outrageous that SCOTUS says it's not their place to change the constitution - that has been their prime role since Marbury v. Madison. The court uses reinterpretation as a tool for judicial amendment.
     
  6. TheResister

    TheResister Banned

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    No doubt that if you took the time to find and dissect the Heller decision, you already know what I'm about to say. In my home state, the first time a gun law was challenged on Second Amendment grounds the court ruled:

    "The right of the people to bear arms shall not be infringed." The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans, plead eloquently for this interpretation! And the acquisition of Texas may be considered the full fruits of this great constitutional right".

    Nunn v. State, 1 Ga. (1 Kel.) 243 (1846)

    In another decision at the state level, in the case of Cockrum v State 24 Tex.394, at 401-402 (1859):

    "The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute.
    He does not derive it from the State government. It is one of the high powers delegated directly to the citizen,
    and is excepted out of the general powers of government. A law cannot be passed to infringe upon or impair it,
    because it is above the law, and independent of the lawmaking power
    ."

    That sentiment was understood even at the Supreme Court level.

    "The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence." United States v. Cruikshank, 92 U.S. 542 (1875)

    The Heller decision is a slap in the face of unalienable Rights; Heller reverses the original intent of the Second Amendment; the Heller decision is a perfect example of the Supreme Court legislating from the bench.
     
  7. JakeJ

    JakeJ Well-Known Member Past Donor

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    The Supreme Court - which some people declare "the law of the land - has the general position that states can impose any firearms restrictions they want to, with the exclusion of within a person's own home. Curiously, 2A doesn't mention home defense. The Supreme Court does not recognize a right to self defense via a firearm in public.

    It is relevant to note that Supreme Court Justices are themselves protected when in public anytime they wish to be by baliffs and federal Marshals, so they don't need self defense in public. They do not have home guards (as far as I'm aware of), so may want weapons for home defense. In short, they rule for what is in their own personal interests only in such regards.

    It also is notable that while they claim some civil rights are defined by the federal government in contradiction of state laws - such as the recent SSM ruling - but rule the exact opposite when it comes to firearms in that states can impose greater restrictions than the federal government imposes.

    We are just cattle, peasants, to the noble lords of the High Court. We the people are victimized including violently by the millions a year. Why should they care? So they don't.

    Creating life term demigod nobility having final authority over everyone and able to erase democracy, a republic form of government, and make or erase any laws they want to make was the greatest government structural design flaw of the founders. The first to recognize that the Supreme Court was self declaring power never given to them in exorbitantly dangerous ways was Thomas Jefferson:

    "At the establishment of our constitution, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account."


    The Supreme Court is an offense against democracy, the Republic, and Constitutional government. They are self created tyrants and deserving of our contempt.
     
  8. BryanVa

    BryanVa Well-Known Member

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    I agree the BoR does not create any rights, it merely recognizes those we inherited and enjoyed beforehand—like the RKBA. The problem is once a particular freedom is recognized for protection in the BoR then that freedom becomes limited by the interpretation placed upon the protection—and the freedom thereafter waxes and wanes at the whim of the 9 keepers of the keys to this kingdom.

    For the longest time we have had to fight a battle over the nature of the right recognized by the 2nd. Amendment. Was it an individual “right of the people” or was it a “state’s right” to arm their militias (or a mere right of militia members to possess the firearms the government chooses to provide them)?

    It was a foolish battle we should never have had to fight. But we have won that battle, and the 2nd. Amendment is correctly interpreted to recognize an individual RKBA. Despite this, those who cling to their incorrect interpretation of the Amendment fight on a daily basis to undermine it and transform it into something it never was. And listen, I have seen courts since Heller routinely accept the proper nature of the right—that you and I—the individual citizen—are the beneficiaries of the right. To that extent even the case most often cited by gun control proponents—U.S. v. Miller—got this point right.

    But this is only half the equation. For example, if a man takes a gun and uses it to murder someone, then he cannot claim that a murder prosecution is barred because his RKBA permitted him to commit a murder any more than you could claim freedom of religion would permit human sacrifice.

    And so what courts are struggling with now is this scope of protection the 2nd. Amendment recognized RKBA provides us—that is, not who is protected but what is the conduct that is protected. Here Heller stays true to prior SCOTUS logic and refuses to fully define the right—and it clearly says the opinion is only the beginning. The issue in Heller was very narrow—did an individual non-militia member have a right to keep and bear arms in his home for defense of himself and his family? Heller says yes, and says this is the “core” of the right. The problem comes with judges who feel that what Heller did not include must automatically be excluded from protection. But Heller also (correctly, in my view) sees the right as a companion to the natural right of self-defense—Self-defense is a portable right, for a man (or woman) has as much right to defend their life from attack outside the home as within. And if the 2nd. Amendment recognized RKBA exists to support the right of self-defense—as Heller says—then the RKBA cannot be limited only to the confines of your home.

    This, my friends, is the current battlefield. Despite the gun control crowd’s desire to go back and refight a battle they lost about the nature of the right, they are also actively fighting to define the scope of the right as narrowly as possible.

    ---

    “Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."-- Justice Brandeis, Olmstead v. United States, 277 U.S. 438, 485 (1928) (dissenting opinion).

    “The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest possible limits...and [when] the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” Sir George Tucker, Judge of the Virginia Supreme Court and U.S. District Court of Virginia, in I Blackstone COMMENTARIES, Sir George Tucker Ed., 1803, pg. 300.

    “Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such a nature, and have been carried to so great lengths, as must serve fully to evince that a late vote of this town, calling upon the inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal. . . .It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their defense; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.” O. Dickerson ed., Boston Under Military Rule, p79 (1936) (quoting from what was at the time the most widely circulated periodical in the colonies, A Journal of the Times. Also citing the 1689 English Bill of Rights)
     
  9. Xenamnes

    Xenamnes Banned

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    Do not assume that the election of one candidate over another will offer a favorable outcome regarding something such as the hughes amendment to the firearm owners protection act. The number of recent supreme court cases that have held police do not have to know the laws they are enforcing, determined that laws do not mean what they say as they are written, and determined that personal identity trumps the ability for states to determine their own politics, goes to prove that reliance in any set system is false hope and foolishness.
     
  10. BryanVa

    BryanVa Well-Known Member

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    OK. Here are a couple of cases that fairly illustrate (IMO) what is happening at the lower court level. Heller says the RKBA is a component of the right of self defense, and the “core” of the RKBA exists for the possession of a firearm at home to defend yourself and your home. The principle issue now is to what extent the RKBA protects conduct outside of the home.

    The first case is a federal case involving Maryland’s “permit scheme” requiring you to get a permit to carry a firearm outside your home—whether open carry or concealed. The Maryland law has a number of exceptions (hunting, traveling to/from purchase/repair, to/from/during shooting events, persons allowed to have guns in their businesses, etc.) But otherwise open and concealed carry is forbidden unless you get a state permit. Permits are issued because of professions (law enforcement, business that transports money, etc.) and for “personal protection.” A person who wants to carry (either open or concealed) for “personal protection” is required to show he/she:

    “has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.”

    This requires specific, credible, individualistic, and recent threats. Just wanting to carry because you live in a dangerous area is not enough. So you have to prove you have had a specific incident in the recent past that provides a “good and substantial reason” for a beuracrat to issue you a permit. Appeals of denials go to a board appointed by the governor.

    The penalty for carrying without a permit is up to 3 years imprisonment and a fine of up to $2,500.

    The plaintiff applied for and was denied a permit for “personal protection.” He sued and the District Court found 1. The RKBA exists outside the home, and 2. The “good and substantial reason” provision impermissibly infringed on the RKBA outside the home. The matter was appealed to the 4th. Circuit.

    The 4th. Circuit ruled the “core” of the RKBA exists inside the home, and that the law which burdens carry outside the home should be viewed under the lesser standard of “intermediate scrutiny.” In so ruling, the Court cited a previous decision it made (also after Heller):

    "In Masciandaro, we announced that intermediate scrutiny applies “to laws that burden [any] right to keep and bear arms outside of the home.” See 638 F.3d at 470-71 (explaining that “we assume that any law that would burden the ‘fundamental,’ core right of self-defense in the home by a law-abiding citizen would be subject to strict scrutiny. But, as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense”); accord Kachalsky, 701 F.3d at 96 (“Because our tradition so clearly indicates a substantial role for state regulation of the carrying of firearms in public, we conclude that intermediate scrutiny is appropriate in this case.”). As explained herein, the State has satisfied the intermediate scrutiny standard, in that it has demonstrated that the good-and-substantial-reason requirement for obtaining a Maryland handgun permit, as applied to Appellee Woollard, “is reasonably adapted to a substantial governmental interest.” See Masciandaro, 638 F.3d at 471."

    Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013)

    And so what you see here is the 4th. Circuit taking the view that the RKBA has limited value outside the home. Indeed, it even refused to say whether the RKBA exists outside the home at all:

    "The district court permanently enjoined enforcement of section 5-306(a)(5)(ii) of the Public Safety Article of the Maryland Code, to the extent that it conditions eligibility for a permit to carry, wear, or transport a handgun in public on having “good and substantial reason” to do so. Necessary to the entry of the court's injunction was its trailblazing pronouncement that the Second Amendment right to keep and bear arms for the purpose of self-defense extends outside the home, as well as its determination that such right is impermissibly burdened by Maryland's good-and-substantial-reason requirement. See Woollard v. Sheridan, 863 F. Supp. 2d 462 (D. Md. 2012). Because we disagree with the court's conclusion that the good-and-substantial-reason requirement cannot pass constitutional muster, we reverse the judgment without needlessly demarcating the reach of the Second Amendment."

    Woollard v. Gallagher, 712 F.3d 865, 868 (4th Cir. 2013)

    The second case is a state case from Virginia (which allows unpermitted open carry and has a “shall issue” concealed carry statute requiring the issuance of a CCW permit if the applicant demonstrates proficiency with a firearm). In this case, the plaintiff is suing to overturn a college ban on firearms carried (openly or concealed) inside campus buildings and at sporting events (a second, unrelated issue is whether the college had the authority to create its own legislation banning firearms—which it did under a grant of authority from the legislature to create regulations for the campus). The Virginia Supreme Court upheld the ban noting that Heller allowed “longstanding restrictions” including bans in “sensitive places.” The Court noted it was not a total campus ban, only a ban in “sensitive places.” Here is the Court’s summary of its opinion:

    "In review of a complaint for declaratory and injunctive relief against a Virginia public university, challenging a regulation prohibiting carrying weapons in academic and other buildings, and while attending sporting, educational or entertainment events, it is held that that the protection of the right to bear arms expressed in Article I, § 13 of the Virginia Constitution is co-extensive with the rights provided by the Second Amendment of the United States Constitution, and that case law does not cast doubt on the validity of laws or regulations restricting the carrying of firearms in sensitive places, such as schools and government buildings. Such restrictions are presumptively legal and the university is a sensitive place warranting such restrictions. The regulation involved is not a total ban of weapons on campus, but is tailored, restricting weapons only in those places where people congregate and are most vulnerable. The trial court erred in finding that sovereign immunity precluded a challenge to the authority of the university to promulgate the regulation, because the uniform government provision contained in Article I, § 14 of the Constitution of Virginia is self-executing. However, the plaintiff failed to establish a violation of that provision by showing that the university functioned as a separate or independent government in promulgating the weapons regulation. The university had statutory authority to adopt the weapons regulation, and the General Assembly did not improperly confer powers upon it. The judgment dismissing the complaint with prejudice, and ordering that the university's regulation be sustained, is affirmed."

    DiGiacinto v. Rector and Visitors of GMU, 281 Va. 127, 127, 704 S.E.2d 365, ___ (2011)

    This is a fair example of what I am seeing post-Heller. The “core” of the RKBA exists in the home, and the highest level of protection—“strict scrutiny”—will be applied to laws that affect the right within the home. Some cases refuse to outright acknowledge the RKBA exists outside the home—many assume such without actually saying it—and laws regulating guns outside the home are subjected to a much lower constitutional standard of “intermediate scrutiny.” To my knowledge, there has not been a single case overturning a law that restricts the RKBA outside the home.
     
  11. Shiva_TD

    Shiva_TD Progressive Libertarian Past Donor

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    Justice Breyer wrote the dissent opinion in McDonald v Chicago and Justice Sotomayor merely joined in that dissent so we don't know exactly what she believed.

    As Justice breyer points out Heller was a split decision, just like McDonald, and like Heller it's based upon historical references that appear to have been misrepresented in Heller upon further analysis. The Supreme Court should review past decisions as applicable, especially when the past decision was a split decision, when addressing a new case which is what apparently happened in the McDonald v Chicago case. I find no problem with McDonald related to Heller based upon the dissent which is very well written and presented. It brought forth legitimate arguments.

    https://supreme.justia.com/cases/federal/us/561/08-1521/dissent2.html

    I've always had two fundamental problems in addressing Constitutionality by the Supreme Court.

    First and foremost is "standing" although the issue of "standing" is very important and needs to be a requirement. What I have a problem with is when a case is dismissed for "standing" but where apparently no one has standing to challenge a law or action of government. If the court is to deny standing then it should be held accountable for defining who would have standing to challenge the law or action of government. There are cases, such as the War Powers Act, where apparently no one has standing the challenge the law. If the Court cannot define who has standing then it should hear the case and make a decision.

    Next, and most important to me, is that split decisions are bad for America. If all of the Supreme Court Justices cannot agree that a law and/or action of government is "Constitutional" then it should strike down the law or government action. I've read numerous split decisions they always introduce a serious question of doubt that remains unresolved.
     
  12. BryanVa

    BryanVa Well-Known Member

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    Interesting points, but I must disagree.

    I disagree. When you “join” an opinion you accept it as your own, whether in the majority or in the minority. In the majority, if you agree with the result but believe it should be decided on a different basis than that used by the main opinion writer then you write a concurring opinion (see, for example, Justice Thomas’ concurring opinion in McDonald). If you are in the minority, and you have a different opinion than another dissenter (in this case, Breyer’s), or if you want to say it in your own way, then you write your own separate dissent (see, for example, Justice Stevens separate dissent in McDonald).

    When you “join” a dissent you are saying the judicial equivalent of “ditto.” If Sotomayor felt differently then she would have said so. She certainly did nothing to support a right she claimed was “established” when she trolled for senate votes. It was a vote in favor of denying the existence of the right upheld in Heller—a vote to uphold a law nearly identical to the one Heller found unconstitutional. Whether she wrote out her own explanation for it or whether she merely said “I agree with him” is of little consequence.

    Now I’m genuinely curious. How So? Tell me why you think this and I’ll give you my opinion why the majority got it right.

    There are a great number of split decisions involving cherished fundamental rights, ranging from free speech to cruel and unusual punishments. The Court reviews them often, but it uses them to build on, not blow up.

    I’ve read the dissent in Heller. The ultimate argument is the 2nd. Amendment does not recognize an individual RKBA outside militia service. Tell me why you think it is a legitimate argument. I’ll respond and give you my reasons otherwise.

    Yeah, but like it or not standing is used to limit what cases the Court will consider. By the way, in U.S. v. Miller (a case cited by Breyer), Jack Miller was a bootlegger and not a militia member when caught with his sawed-off shotgun. If the Court felt the right was limited to militia service (as Breyer says in his dissent), then the Court would have dismissed his case outright for lack of standing. It would have said “Miller, not being a militia member, has no standing” and it would never have gone on to discuss whether the type of weapon he possessed was protected.

    Justice Breyer does not feel this way. Clearly not all justices agreed the law was constitutional in either Heller or McDonald. Indeed, a majority concluded otherwise. And yet Breyer refused to declare it unconstitutional. I understand what you are saying. The problem for me is your method would give one justice alone the authority to declare a law unconstitutional—“I know 8 of you want to uphold it, but I say otherwise and since it is not unanimous you must strike the law down.” The only thing worse than a tyranny of the majority would be a tyranny of the minority of one.

    ---

    "The issue, however, is not whether court rules are “mutable”; they assuredly are. It is not whether, in the light of “various circumstances,” they can be “modifi[ed]”; they assuredly can. The issue is whether, as mutated and modified, they must make sense. The requirement that they do so is the only thing that prevents this Court from being some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy." Dickerson v. United States, 530 U.S. 428, 455 (2000) (Scalia, dissenting)
     
  13. Shiva_TD

    Shiva_TD Progressive Libertarian Past Donor

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    Before anything else I want to clarify that I generally agree with the Heller decision because we do have a RKBA in the homes for self-defense purposes. This is based upon the fact that defense of the community and the nation as a member of a militia is really just an extension of defending the home. It's fundamentally about: Defense of home; defense of community; defense of state, defense of the nation all based upon the identical issue of "self defense against acts of aggression" against the person.

    I believe some misrepresent what "concurrence" as in a "concurring opinion" implies. Concurrence is an agreement in principle without signficant objection. An opinion expressed may include arguments or statements that the concurring party may not fully support but to which they have no objection. Only if there are significant objections to the arguments or statements would there be reason for a separate opinion.

    No, the striking down of a law or action of government cannot result in tyranny. Tyranny is an action, not an inaction, of government and the striking down of a law or act of government removes the possibility of tyranny by the government. Now it might allow the "tyranny of a person" by not prohibiting their actions but it would never represent the tyranny of government.

    This does lead to a significant issue based upon the "equal protection under the law" clause of the 14th Amendment because, in reality, if government does not create a law to protect the person's rights then it has failed to provide equal protection under the law if the person's rights are violated. For example if we don't have effective laws to prevent disenfranchisement of minorities, in compliance with the 15th Amentment, then the government has failed to provide equal protection under the law for the minorities if laws are passed or actions take place that disenfranchise them from their "right to vote" in our elections.

    Once again I agree with the Constitutional issue of "standing" but also hold the opinion that someone somewhere must always have standing to challenge all laws and actions of government. If the courts invoke standing for dismissal of a case then they should also be required to establish who would have standing for bringing the case before the court. This doesn't remove the issue of "standing" but instead clarifies it. If the court cannot determine who would have standing then dismissal should be waived. We can note that standing has been waived in a limited number of cases. For example in Hollingworth the Supreme Court waived the issue of standing for Congressional Republicans that were defending DOMA. It would have been impossible for them to demonstrate they were personally harmed by the striking down of any part of DOMA and therefore they really didn't have standing to defend the law. Even as members of the House of Representatives the Congress is never harmed by the striking down of a law as unconstitutional. In Roe v Wade standing was also waived because the woman was no longer pregnant but because it's pragmatically impossible for a case to make it to the Supreme Court in the limited time required where an abortion can safely take place the issue of standing was waived.

    I agree with the proposition that for a prior decision to be mutated and/or modified the argument must make sense. Having read a lot of Supreme Court decisions I've found compelling arguments, some that I might disagree with, in all cases. The arguments are very good regardless of whether I agree with them or not.
     
  14. Cordelier

    Cordelier New Member

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    First off, just as an aside, Shiva - Wouldn't the President have standing to challenge the War Powers Act? After all, the President was the one to whom the law was directed. Every law ever passed has been directed at somebody who conceivably has standing to challenge it. But to open the legal process to every lawsuit regardless of standing would be to invite chaos.

    Secondly, dissents are healthy... they set the stage for the future evolution of jurisprudence, just as Harlan's dissent in Plessy v. Ferguson set the stage for the overturning of the decision in Brown or Black's dissent in Adamson v. California led to the Incorporation of the Bill of Rights.

    To the point in hand, I think if you look at Heller in it's broadest context, neither Scalia on the right nor Stevens on the left have argued that the Second Amendment's RKBA was an absolute right - it does have reasonable limits. However, it is a right that exists and thus cannot be absolutely denied, as the blanket ban imposed by the District of Columbia did.

    The only fault I find with Heller is in the majority's dismissal of the "well-regulated" clause as applying to only disciplining and training of the militia. From my perspective, the necessity of a "well-regulated milita" cannot be divided from the RKBA, and as such any Federal Gun Control Laws which are passed are constitutional so long as they don't have an outright ban on firearms (which was DC's mistake). After all, shouldn't a well-regulated militia be subjected to the discipline of being told which types of firearms are valid and which are not for it's assigned role?
     
  15. Shiva_TD

    Shiva_TD Progressive Libertarian Past Donor

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    http://legal-dictionary.thefreedictionary.com/standing

    Because only the use of the War Powers Act can potentially lead to substantial harm and only the president can initiate an act of war without Congressional approval the president would have to logically file suit against themself. They would be both the plaintiff and the defendent in the lawsuit and I don't believe you can file a lawsuit against yourself. I simply don't see how the president suffers any redressible harm from the War Powers Act that he would only suffer from theoretically based upon his own actions. He's sure as not going to be killed if he sends the US military to war and soldiers that could die don't have standing to challenge the law.

    The problem with the War Powers Act, that no one has been able to challenge, is whether Congress delegated it's Constitutional role and responsibility "declare war" to the President. The Supreme Court has already established that if the US is attacked directly then a "state of war" exists so a Congressional declaration is not required but the War Powers Act allows the President to initiate a war without Congressional approval in advance.

    We've also seen cases where the government could bring a lawsuit to address a violation of the Constitution but chooses not to leaving an unconstitutional matter unredressed. My example on that is the refusal of the Federal Reserve to redeem Federal Reserve notes in US minted American Eagle (legal tender) coins made of gold and silver. A state treasurer could demand redemption based upon the Constitution where the state is required to pay all debts in gold and silver coinage but no state has challenged the law. The individual cannot bring this lawsuit because we can use any form of legal tender to pay our debts. The "government" is ignoring the US Constitution intentionally and no private person has standing to challenge the actions of the Federal Reserve and US Treasury related to this violation of the US Constitution.

    Once again I agree with the principle of "standing" and only address those cases where a "plaintiff with standing" doesn't appear to exist. The courts should be able to tell us who has standing in a case just like they can tell us when the plaintiff doesn't have standing.

    I agree but would also claim that simply declaring a law or action unconstitutional if unanimous consent cannot be reached is the maximum protection of our individual rights.

    When it comes to Heller, as noted, I generally agree with the decision while based upon both ideological and Constitutional grounds I'd disagree with your opinion.

    First of all the 2nd Amendment refers to "arms" in general and not specifically to firearms. "Arms" are any object that can be used to attack or defend yourself from an attack and generally speaking firearms are a commodity. There is no "right" to own a commodity but......

    I would also address the 9th Amendment because there is no enumeration of the "right of self-defense against acts of aggression" which is unquestionably a "natural (inalienable) right" of the person which is protected by the 9th Amendment.

    Now add to that the old Western adage, often mistakenly attibuted to the Colt Firearms Company, “God Created Men and Sam Colt Made Them Equal!” and then combine the intent of 2nd and 9th Amendments. While many forms of "arms" exist it's only the firearm where "equality" exists when it comes to self-defense. The "militia" clause can be important for the defense of the community, state, or nation it doesn't address "self defense" of the person which is equally if not more important under the 9th Amendment to the US Constitution.

    I do agree that reasonable regulation does not infringe upon either the 2nd or 9th Amendment but the key is whether they're reasonable and pragmatic. First and foremost is that the government does have a role and responsibility to provide for the "public safety" but does not have a role in providing for the "private safety" of the person. Reasonable regulations are necessary for the public safety such as speed limits on our public roads. That doesn't apply to "private safety" where a person can drive just as fast as they want on a private road (e.g. race track).

    The same is applicable to firearms but there must be a compelling argument for the infringement that often the gun control advocates fail to provide.

    For example "assault weapons bans" might ban a "Bushmaster" based upon appearance while a Ruger Mini-14, that's functionally identical, is not banned. Appearance alone does not create a compelling argument. On the flip side if there was a compelling argument based upon appearance (there's not) then on one could not say their 2nd Amendment Rights are violated if they can still purchase the Ruger Mini-14 that's functionally identical. The "assault weapon ban" in this example fails because there's no compelling argument based upon appearance alone and not because it would violate the 2nd Amendment. The "appearance" argument is a two-edged sword because it's invalid from both perspectives.

    The same is true for limiting magazine capacity. If I can still purchase firearms that use belt fed ammunition, which we can, with basically an unlimited capacity then limiting a magazine is not based upon a compelling argument.

    Now limiting by regulation (e.g. licensing or firearm registration) or prohibiting of the carrying of firearms in public can be logically based upon a compelling argument for public safety but not the possession of firearms in the home because the home basically refers to "private safety" and not public safety, Even when looking back at American history the carrying of firearms in town was often prohibited based upon providing for the public safety.
     
  16. BryanVa

    BryanVa Well-Known Member

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    Here is my principle problem with the “militia only” interpretation Justice Breyer takes. In summary he says this: “As used in the Second Amendment, the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia.” District Of Columbia v. Heller, 554 U.S. 570, 646 (2008).

    So in his view the only thing the 2nd. Amendment protects is a right to keep and bear militia arms while in militia service, but Congress totally dominates this "right." You cannot read the amendment in a vacuum. Article I section 8 of the Constitution says:

    The Congress shall have power:

    To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.

    So you can see Congress has total power over the arming and regulating the militias—who the members will be, how many members there will be, how many officers there will be, how they will be armed, disciplined, and trained. I have no control over any of this. The states retain control only over the naming of the officers for the slots provided by Congress, and the states are allowed to supervise the “regulating” of the militia—but only if they followed the plan set forth by Congress.

    In addition, the supremacy clause of Article 6 of the Constitution renders Congress’ power over organizing, arming, and regulating the militias complete. It was the Federalist mindset that wanted it this way—centralized control over organizing, arming and regulating the various state militias. This is the state of affairs that existed when the 2nd Amendment was adopted.

    (As an aside, since the government chooses to allow me into militia service, and the government then chooses to provide me with a particular militia weapon, then why do I need a codified “right”—free from federal interference—to be allowed to do the very thing the government has already chosen to allow me to do in the first place? It makes no sense.)

    In effect, Breyer agrees the amendments in the Bill of Rights were created to protect recognized individual rights from infringement by Congress and the federal government, but then he draws a 2nd. Amendment right that is totally dominated by the whim of Congress.

    He says the federal government must recognize my right to carry militia arms in militia service. Yet Congress has the total power to exclude me from the militia (unless the state says I’m an officer—and even then Congress can say how many officers there will be). How can it be my “right”—protected from federal government interference—when the federal government has the absolute power to forbid me from being a member of the club that exercises the right?

    Secondly, even if I were highly favored and chosen and allowed to join the exclusive club of militia membership, the Congress has the total power to tell me what arms I may have. Look at it this way. If Congress became infested with ancient Greek history buffs, and voted to say the Virginia militia will be comprised of a total of 300 men armed like Spartan hoplites, then there is nothing the state or I can do about it short of the state saying “well Bryan will be an officer.”

    This is not a right of mine at all. It is a privilege subject to the total whim of Congress.

    In sum, Breyer agrees the Amendment was designed to limit the power of the federal government. He then says his interpretation of the RKBA protects your right to keep and bear arms for militia service—so long as Congress first says you can join the club, and so long as Congress chooses the arms.

    It is like saying the freedom of speech exists, but only for those whom Congress allows to speak, and only if they speak the script Congress approves of.

    How is this a right? Justice Breyer will not answer this question. Is there someone out there who can defend these interpretations and tell me how they really work?
     
  17. Cordelier

    Cordelier New Member

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    Not that I see this ever happening in practice, but if some future and particularly owlish President ever decided that his "Take care" duty to faithfully execute the War Powers Act placed unconstitutional limitations on his/her freedom of action as Commander-in-Chief, is there not scope to challenge the law? In such a situation, I'd envision the Defense Department as the plaintiff and the Justice Department as the respondent.

    In actual practice, I think in such a situation the future President would just ignore the War Powers Act and go ahead and do what he/she felt they had to do as Commander-in-Chief and face the legal challenges down the road.


    Not sure what you're getting at here - Section 10 only applies to the States.

    Are you seriously suggesting Laws should be struck down if the Supreme Court could "only" muster a 8-1 decision upholding them?

    I don't deny the right to self-defense - but how much gun do you need to accomplish that? Do you really need an AK-47? It seems to me that a good old-fashioned single-action Colt 45 would be a pretty good deterrent to most ills people would do against you. I go by the Shane rule - one gun is enough if you know how to use it. My basic argument is that the matter should be up to the Congress - any gun control measures they deem fit to pass under their Article 1, Section 8 duty to regulate the militia are legitimate so long as they don't go so far as to institute an outright ban on firearms and thus violate the Second Amendment's RKBA.
     
  18. QLB

    QLB Well-Known Member

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    You don't know much about firearms. There's probably not a single small arms expert who would agree with you either. You just made up a slogan that sounds good to to liberal but one without a lot of thought or data to back it up. Typical.
     
  19. Cordelier

    Cordelier New Member

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    I think what Breyer is getting at is the basic fact that the right to keep and bear arms is not an absolute right - it has limitations, as any right does... just as the right to freedom of speech doesn't mean you can yell "Fire!" in a crowded theatre. As you point out, the Second Amendment's limitations are built right into it - it's subject to the regulations laid down by the Congress. I'd also argue that it's subject to individual actions - just as convicted felons forfeit their right to vote, so too do they forfeit their right to membership in the militia pool (and with it, their right to keep and bear arms). That being said, Congress has limits within their regulation power too.... they can't go so far as to ban all firearms, for instance... but short of that, Congress has broad powers in the field.

    - - - Updated - - -

    Didn't you just do the same thing?
     
  20. QLB

    QLB Well-Known Member

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    Nope, we're talking technique, not the particular firearm. Vastly different conversation.
     
  21. Cordelier

    Cordelier New Member

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    I find the most profound ones don't need very many words.
     
  22. Shiva_TD

    Shiva_TD Progressive Libertarian Past Donor

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    You're referring to one agency under the executive control of the President (the DOD) filing a lawsuit agianst another agency under the executive control of the President (the DOJ) so effectively it would be the President being both the plaintiff and the defendant in the case. Not going to happen and the fact is that a "agency" can't actually suffer harm. Only people suffer harm. Logically the person that would suffer the harm is the soldier that can be killed or mained based upon the War Powers Act but the Supreme Court has ruled that the "soldier" doesn't have standing. I've not read the reason for this lack of standing but I know it's been adjudicated by the Supreme Court.

    About the only thing the president could ignore is the reporting to Congress because it basically allows the president to go to war against any country without Congressional approval for the attack/invasion. What the hell is Congress really going to do once the US forces are actively engaged in a war with another country?

    That is true which is why I said that a State Treasurer would have standing to demand redemption of Federal Reserve notes in gold and silver coinage so it could pay it's debts exclusively in gold and silver coinage as required by Section 10 of the US Constitution.

    Yes, I see no harm in it. Whenever there's a split decision that supports a law or government action I've always read a legitimate reason to question the Constitutionality in the dissent opinion. We're basically left with laws and actions of our government that are of dubious Constitutionality and we shouldn't have laws or government actions of dubious Constitutionality. We should know that the laws and actions of government are of unquestionable Constitutionality because only then are our Rights truly being protected and is government properly working within the Constitutional restraints imposed.

    Today Congress creates laws knowing that they're of highly questionable Constitutionality and then depend upon a "political majority" of the Supreme Court to uphold the law. Requiring that all laws be of unquestionable Constitutionality would change how Congress creates laws because Constitutionality would be first and foremost in the creation of the law. That simply isn't the case today and Congress often ignores the requirement for Constitutionality hoping that the law will simply survive based upon a majority decision. Congress literally relies on the "political" influence on the bench and that's just not right.

    Technically the AK-47 is a fully automatic military assault rifle but we do have "look alike" AK-47's that are semiautomatic rifles are functionally no different than a semiautomatic hunting rifle that uses the same ammunition. We also have the Bushmaster that's a replica of the M-16 military assault rifle that's also functionally identical to the Ruger hunting rifle that uses the same ammunition. Hunting rifles, regardless of whether they look like an AK-47 or not are not my preferred choice for home defense. They're designed for longer ranges while the typical home defense situation is a limited range situation normally not exceeding about 10'-20'. The stock on a "long gun" makes close encounters more problematic but what firearm a person selects is really their business.

    Personally, as opposed to a handgun, I selected the Mossberg tactical 12 ga pump shotgun with a folding/removable stock as my primaryu home defense firearm. I choose it because it was a pump action because no sound is more distinctive than chambering a round in a shotgun and I would hope that sound alone would encourage a home invader to leave, quickly. With the stock removed it can easily and quickly be "brought to bear" on a target. It also has a very bright light mounted on the barrel to illuminate the "target" with a blinding glare and it also keeps me from shooting someone by mistake. My Mossberg shotgun would be illegal based upon the appearance criteria for many "assault weapon" bans because the stock is removable and it has a pistol grip but it's unquestionably the best home defense firearm IMHO.

    I actually have different guns in different rooms of the house (upstairs and downstairs) because I really don't know where I might be if there's a home invasion. I don't have children and only my wife and I live here so I'm not concerned about the guns being accessible to someone else. At the same time a trigger lock or having to keep the guns in a gun safe or lockbox defeats the purpose of having the gun because it renders them unusable or unobtainable in an emergency.

    Back to the point. I'm not opposed to firearm control laws that are based upon a compelling argument related to the public safety but public safety is not about personal safety in the home. I have no problem, for example, with requiring licensing and registration of firearms carried in public place but that should never extend to those that don't take their firearms into public place. A person with a firearm in the home should never require a license nor should the firearm require registration because the firearm in the home does not represent a threat to the public safety. Only if the person takes the firearm out of the home does it represent a threat to the public safety.

    Let's use the "automobile" argument because it addresses the compelling arguments for public safety related to automobiles and their use. You need a drivers license and the vehicle registered if you drive it on the public roads. You even need insurance in most or all states. You don't need a license or to register the vehicle or insurance if you use it on private property exclusively.
     
  23. BryanVa

    BryanVa Well-Known Member

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    But Breyer’s dissent says you are wrong- and there is no right to protect private arms for any purpose.

    I agree the 2nd. Amendment is no more absolute a right than any other. But this is not about those restrictions that exist in every other right—where you lose the right because of your own actions after due process, for example.

    This is about the very scope of the right itself, and I think you are missing how Breyer says there really is no right at all. Follow me now…

    Breyer says the Amendment only protects my “right” to carry an approved firearm while involved in an approved militia.

    Yet Congress, and Congress alone decides how large the militia will be, and whether I can be a militia member. I have absolutely no say in the matter. The only exception is if Congress provides an officer slot for the militia, then my state gets to pick who that officer will be—again totally beyond my control.

    How can Breyer say it is my individual right when the government alone chooses whether or not I will be allowed to exercise it?

    And if approved and selected, then Congress, and Congress alone, chooses how the right may be exercised (if at all)—for the power to arm is also a power to disarm. If Congress says I may only have a green willow switch, or declares that I must learn Kung Fu because my hands and feet are the only weapons allowed, then both I and my state are bound by this restriction because of the Constitution’s supremacy clause.

    This absolute power to disarm the militias did not go unnoticed (except by Breyer). Patrick Henry, in opposing the Constitution, famously complained of giving this power to Congress, noting the proposed Constitution gave Congress the power to create a standing army and power to refuse to arm the state militias. He asked what would happen when it came time to oppose a tyrant leading a standing army:

    “My great objection to this Government is, that it does not leave us the means of defending our rights; or, of waging war against tyrants. . . .The Honorable Gentleman who presides, told us, that to prevent abuses in our Government, we will assemble in Convention, recall our delegated powers, and punish our servants for abusing the trust reposed in them. Oh, Sir, we should have fine times indeed, if to punish tyrants, it were only sufficient to assemble the people. Your arms wherewith you could defend yourselves, are gone. . . . And how are you to punish them? Will you order them to be punished? Who shall obey these orders? Will your Mace-bearer be a match for a disciplined regiment? In what situation are we to be? . . . .What resistance could be made? The attempt would be madness.” See Patrick Henry, his speeches of June 5 and 7, 1788, before the Virginia Ratifying Convention, reprinted in The Anti-Federalist Papers and the Constitutional Convention Debates, pages 199-216, Mentor Books, 1986, edited by Ralph Ketchum.

    Don’t confuse me now. This is not about claiming a right of rebellion. It is about understanding (for Breyer refuses to acknowledge it) the absolute control Congress has over militia arms. Patrick Henry lost this argument. The Constitution—before the 2nd. Amendment was drafted—gave Congress exactly this control over everything militia related. The only exception is state appointment of officers. Beyond that exception, Congress’ control over the organizing and arming of the militia is as strong as Kim Jong-un’s control of the military of North Korea.

    Yet this is where Beyer says my “right” exists—under the complete discretion of the government who’s power the right was supposed to check. He says there is no right beyond these government approved militia arms for government approved militia purposes.

    The very term “individual right” means some portion of liberty (however small) that is beyond the reach of a grasping government—that is mine alone to control. For example, I am totally free to worship (or not worship) a supreme being. Breyer’s view of the RKBA says “you are allowed to do only what the government allows you to do, nothing more.” In so doing he reads a portion of the Bill of Rights to destroy rather than protect an individual right.

    Everyone recognizes that our founders believed in the pre-existing (of the Constitution) individual RKBA. Our founders repeatedly laid claim to it as justification for having their own arms beyond the control of the crown. This pre-existing right was the original source of militia arms in the newly formed states. The Constitution then gave Congress the power to divorce the militia from this arms source—but it did not give the Congress the power to destroy the original source. I can quote you leading federalists who promised the Constitution did NOT give Congress power over individual arms. Indeed, this was the answer to Patrick Henry’s complaint. Yet what Breyer is saying is the 2nd. Amendment was included for that very purpose—to destroy this pre-existing right by limiting it to militia service, thereby placing it directly under the control of Congress—with the ironic vehicle for this abject surrender of individual liberty being a portion of a document that was sold to the public as protecting their several rights from the control of Congress. And it only took two centuries for Justice Breyer to come along and decode this hidden and silent federalist coup. This is the true meaning of Breyer’s dissent. Peisistratus would be proud indeed….

    ---

    “Winning the battle of Pallenis, he seized the government and disarmed the people; and now he held the tyranny firmly, and he took Naxos and appointed Lygdamis ruler. The way in which he disarmed the people was this: he held an armed muster at the Temple of Theseus, and began to hold an Assembly, but he lowered his voice a little, and when they said they could not hear him, he told them to come up to the forecourt of the Acropolis, in order that his voice might carry better; and while he used up time making a speech, the men told off for this purpose gathered up the arms, locked them up in the neighboring buildings of the Temple of Theseus, and came and informed PeisistratusAristotle, Athenian Constitution.
     
  24. Xenamnes

    Xenamnes Banned

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    Why would they not?

    Multiple times in the past, supporters of stricter firearm prohibitions have been asked to explain specifically why they believe that no one, absolutely no one outside of law enforcement, has any legitimate need for firearms that they arbitrarily classify as "assault weapons" based on vague and meaningless standards. To date they have refused to offer up any reasoning whatsoever, no matter how many times they have been questioned. So far the closest thing to an explanation that has been offered up, is that such firearms more readily facilitate mass murder.

    Such an explanation is not an answer to the question, and anything along such lines will not be regarded as an answer to the question presented. If you believe that someone has no need for a particular type of firearm, then be prepared to explain precisely why.
     
  25. vman12

    vman12 Well-Known Member Past Donor

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    Does anyone need to make more than $40k per year? Does anyone need more than 2 pairs of shoes? Does anyone need to have sex changes? Does anyone need more than 1 car? Does anyone need a car with more than 100 hp? Does anyone....

    I think you get the point.

    Be very careful with that do you "need" argument, it can come back and bite you on the heiney.
     

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