Skip to comments.Court must settle gun issue
Posted on 12/11/2003 3:29:55 PM PST by 45Auto
Last week, with little fanfare, the Supreme Court refused without comment to review a 9th Circuit Court of Appeals decision that the Constitution does not guarantee people a personal right to own a gun. In doing so without comment, the court neither agrees nor disagrees with the 9th Circuit panel. As a citizen and an owner of firearms, I am extremely disappointed in the Supreme Courts cowardice.
Perhaps the court was taken aback by the storm of outrage after its last delving into highly charged ground with Lawrence v. Texas, overturning sodomy laws and sparking a nationwide cultural battle. If this is the case, it is yet another unfortunate consequence of that ruling. The issues are separate, and while conservatives and liberals disagree over the relevance of the Constitution to sodomy laws, the Constitution definitely lies at the heart of the issue of the firearms debate.
In this swirling melee, the Second Amendment stands as the bulwark of law-abiding gun owners and the stumbling block of gun control advocates. The only way the issue might be settled is through the Supreme Court, the arbiter and interpreter of the Constitution.
The last significant case regarding the Second Amendment was in 1939, an astounding 64 years ago. The Supreme Court relies heavily on precedent; its precedent on this issue has been to ignore and avoid it if at all possible.
But what precedent does the 1939 case, United States v. Miller, give? Most gun control advocates parade Miller around as a refutation of gun owners claim to the Second Amendment. In the case, the Supreme Court denied Charles Miller his Second Amendment appeal because the weapon he possessed was a sawed-off shotgun, which the high court deemed to have no practical use as part of a militia. Indeed, the case rejected the governments contention that the Second Amendment guarantees only a collective right, and the court explicitly endorsed an individual right to keep and bear arms appropriate for militia use. The court did not think a shotgun with a short barrel was appropriate for militia use but qualified even this by saying that if given evidence to the contrary, the court might change its view.
Obviously, this presents great difficulty to gun control advocates. They assert there is no individual right to keep and bear arms. Rather, they see a protection of a collective right to own arms, usually in the form of the National Guard, silly as that seems to gun owners. But this is that same contention the government made, and the court dismissed, in the Miller case. The collective right theory is not based on history, legal precedent or the Constitution. Rather, it is entirely a social policy endorsed by liberal politicians who attempt to graft the policy into the Constitution through skullduggery.
An honest approach to gun control would be to seek an amendment to the Constitution repealing the Second Amendment as outlined in Article V. Of course, such action is politically impossible and would not only be rejected by Congress but also by the states and by the people themselves. The right to keep and bear arms is fundamental to Americans. It was crafted by James Madison in such a way that it supported the militia system of defense and also recognized the natural right of all men to keep and bear arms to defend themselves, as set in the English Bill of Rights. Although the government might regulate it to a reasonable degree, it should do so only with the understanding that our right to bear arms should be no less regarded than our freedom of speech or religion.
As Supreme Court Justice Clarence Thomas wrote, A growing body of scholarly commentary indicates that the right to keep and bear arms is, as the amendments text suggests, a personal right. That is why the Supreme Courts refusal to hear the case is so disappointing.
The issue must be decided, and the longer we go without guidance on it, the more confusing it will become. Whereas the 9th Circuit found no individual right, the 5th Circuit has found such a right. In one section of the country, it is a right; in another, it isnt. President Bill Clintons administration did not recognize such a right. Former President George W. Bushs administration does. Who knows what will follow?
The case law is incomplete and the courts are in conflict with each other. It cannot be left to the disparate circuit courts. The Supreme Court must decide the issue. While it stands by idly, the battle rages outside its hallowed halls.
That outrage is nothing compared to what would happen if SCOTUS ruled against the individual RKBA. The Supreme Fools are at least smart enough to know that a decision like that could very well spark a revolution in this country.
Yesterday they found Freedom Of Speech did not really mean freedom of speech.
We lucked out. It's a good thing this court decided to take a pass on this one. They would have overturned the 2nd Amendment as well the 1st if this case went before it.
We need some new members on the Court before we try this one.
In that case, where are our full-auto Bushmasters, AK-47's, and other assorted "banned" weapons?<P. OH - yeah, the court can rely on precedent only when it suits the political point of view of the members of the court.
I agree with you. But it wouldn't take a majority; just an armed and motivated minority.
There is no power to regulate arms in the Constitution. And suggesting today that our right to keep and bear arms should be regulated as much as freedom of speech is a frightening concession.
Freedom of speech has just been abridged for at least one week out of every two years. There is no Supreme Court bar to enlarging one week to two, or two weeks to a month, or six months, or 24 months.
Five arrogant judges have just usurped the rights of the people in a manner to which they have not consented.
Much as the Supreme Court has ruled that an unConstitutional law is void from the moment of its creation, this decision by the Supreme Court is void. It is not the law of the land, but the law of Congress and the law of the President, and the law of the Supreme Court.
Not only did the court recognize that the right to keep and bear arms would apply to a free citizen, but they specifically used the term "priveleges and immunities" to describe such rights.
This is the same term used in the Fourteenth Amendment to protect citizens from infringement of their rights by the states.
I think we need at least two justices when it comes to the second amendment. I say this because four justices could have seen that the case was heard, we didn't get four, and we need five to win.
I really despair of getting two more justices before some of the ones on our side now leave.
Face it people, the Court is not likely to hear a true 2nd amendment case anytime soon, which might mean decades, and if they do, the result will not be what we would want.
The second is supposed to protect the first, and the others. The first is supposed to protect the second, and the others. The second is still mostly able to do it's job, but maybe not for long. (YMMV in the 9th circuit, especial in CA). However, the first is much less able than it was a few days ago.
Figuratively for now, but for how long?
The freedom of speech also lies at the heart of the Constitution, but the Justices didn't hesitate to rape it. The second amendment is still having a deterrent effect, if a weakening one. As the right is nibbled to death by ducks, the perception may arise among the elite that it no longer is relevant. While I think this would be a big mistake, they seem to have no trouble convincing themselves of at least three ridiculous, illogical and Constitutionally unfounded things a day...before breakfast.
Actually not. I'm sure you've heard of the arsenal at Harper's Ferry (Virginia) where John Brown holed up before being captured by Col. Robert E. Lee leading a group of US Marines? Or maybe the Rock Island Arsenal, or the Redstone Arsenal. All those were goverment owned firearms factories, and the designed the weapons as well. Sometimes they bought weapons from private companies, other times the bought the designs. But except in wartime, they usually only produced signifigent numbers of small arms at government arsenals. Even today many aircraft factories and some shipyards, while having a sign outside that say Lockheed or Boeing, (Or Ingalls or General Dynamics) are government owned, (there will also be a sign "Air Force Plant #xx) but contractor operated.
But that is all beside the point, the Constitution says "right of the people", and that is what it means, not "power of the states".
What the court actually said.:
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" 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. Certainly 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. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.
Demonstrating how bogus this ruling, even though it wasn't nearly as bad for arms rights as the lower courts would have it, that cite is to a Tennesse Supreme Court case, ruling on the basis of the TN Constitution's, RKBA clause, not the second amendment. That clause contained and still contains, the phrase "for their common defense", which the second amendment lacks. Not only does it lack such a limiting phrase, such a phrase was rejected by Congress during the debates that led up to the passage of the Bill of Rights. That sort of thing tends to happen when only one side of a case is heard, or briefed. In this case, "Miller", only the government presented a brief, and only the government delievered an oral argument.
One week? Try 3 months. 30 days before a primary election and 60 days before a general election. That's a 12.5% reduction. Of course it's more than that, because those are the 3 months when the speech would have the most impact. In a representative republic, the only means the people have for influencing the actions of government are through election of those representatives. (I'd say "and through the courts", but we've seen in the last few weeks that the courts are useless as teats on a boar hog when it comes to protecting the rights of normal, average citizens.)
Oh, I think not. They will perhaps begin the settlement of the issue that way, but it will then be settled, one way or the other, by rule 308. Sad to say, but there it is.
What one Congress can give, another can take away. We already have the seonond amendment, we really shouldn't need more.
However adding the word "individual" before the word "right", couldn't hurt. But it would need to be a constitutional amendment, not a mere law. It would have to be ratified by the passed by the Congress, signed by the President, and ratified by the legislatures of the requisit number of states. Even then the federal courts would probably rule that the individual right only accured to those individuals who are members of the national guard, and the right only extended to the use keeping and bearing of those weapons provided by the state(that is by the federal government through the state). In other words, they'd deconstruct it to mean the same nothing they apparently think it means today.
"Court must settle gun issue"
No "court" is going to settle this. Men with guns will settle this, one way or another.
as I also recall 198 sheep out of 200 people said "Yes sir!"
as I also recall 198 sheep out of 200 people said "Yes sir!"
Hopefully some of those "sheep" were really smart sheepdogs who know that if a judge can lie to potential jurors, well, turnabout is fair play.
It's up to people like you and me to 'settle' the issue.
I'm afraid it's going to cost more than just a few lives, though. Oh well. What the hell. I'd hoped to live long enough to see my kid go to college, get married, and start his own family. Too bad it doesn't look like that's going to happen.
This SCOTUS has already flushed the 4th, 5th, and just last week the 1st Amendment down the crapper so there's absolutely no reason at all to think they're going to all of a sudden get religion and declare that the 2nd is an 'individual right'.
Well just for the record my friend, I hereby say "F*** you" to the Supreme Court. I don't give a frogs watertight ass what they have to say about it.
Any further infringements on my rights to own whatever small arms I deem appropriate are going to be met with response I consider appropriate at a time and a place of my own choosing.
Anyone attempting to abrogate that right does so at their own peril.
I'd rather die on my feet than live on my knees.
"Hopefully some of those "sheep" were really smart sheepdogs who know that if a judge can lie to potential jurors, well, turnabout is fair play".
Sorry, we are talking about Maryland
Exactly. This court is populated by fringe radical liberal loons. However, it remains to be seen when (or more likely if) SCOTUS will ever swing far enough to the center, let alone the right, to deliver a proper ruling in the Second Amendment.
The issue of whether the 2nd protects an individual right or a collective right has already been decided. The very fact that the SCOTUS heard Miller's case says that it is an individual right. Were it not, the SCOTUS would have either denied Cert. or taken the case and ruled for the Fed.gov by saying that "plaintiff lacks standing."
No practical use?
The SCOTUS actual said that there was no "judicial notice" that a short-barreled shotgun had any reasonable relationship to a well-regulated militia. The key phrase there is "judicial notice." What that means is that neither Miller's attorney nor any amicus brief (and I don't believe that there even was one) brought forth any evidence that such guns had such utility. Of course, they did and they do. "Trench brooms" used during WW1 to great effect by our troops were, in fact, short-barreled shotguns; the armed forces have continued to use the same to great effect even up to the present day. Factually, Miller should have won on this issue; however, the SCOTUS didn't have the proper paper trail to be able to so rule. I trust that if another case like Miller came before SCOTUS there would be volumes of evidence about not only short-barreled shotguns, but about full autos like the M-16, AK-47, etc.
The original cert. brief from Mr. Gorski was modified in light of the ridiculous assertion by the 9th Circuit (written by that commie, Reinhardt) that the 2nd protected the right of states to arm organized militias. The whole thing must have been an embarrassment even to the likes of those other commies, Ginsburg and Breyer.
The six justices who would like to gut the RKBA could not agree to hear this case and then uphold the 9th's decision without doing very serious damage to the credibility of the Supreme Court, the Constitution and to the Rule of Law, up to and including the destruction of the Republic. No, those six @sswipes are major cowards. Their left wing leanings cannot allow them to be honest, so they took the coward's way out and simply denied cert. Clearly, they did not want to open a can of worms that they could not re-close; its one thing to rule that having a butt-buddy is O.K., and quite another to set in motion the destruction of the Republic.
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