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Alito Dissenting Opinion U.S. v Rybar (Machine Gun Ownership)
Carnegie Mellon ^ | 12.30.96 | Court Finding

Posted on 10/31/2005 8:46:21 AM PST by antaresequity

SNIP - ALITO DISSENTING OPINION

Maj. Op. at ----. In other words, the majority argues in effect that the private, purely intrastate possession of machine guns has a substantial effect on the interstate machine gun market.

This theory, if accepted, would go far toward converting Congress's authority to regulate interstate commerce into "a plenary police power." Lopez, --- U.S. at ----, 115 S.Ct. at 1633. If there is any sort of interstate market for a commodity--and I think that it is safe to assume that there is some sort of interstate market for practically everything--then the purely intrastate possession of that item will have an effect on that market, and outlawing private possession of the item will presumably have a substantial effect. Consequently, the majority's theory leads to the conclusion that Congress may ban the purely intrastate possession of just about anything. But if Lopez means anything, it is that Congress's power under the Commerce Clause must have some limits. Cf. Charles Fried, Foreword: Revolutions?, 109 HARV.L.REV. 13, 36-37 (1995).

(Excerpt) Read more at cs.cmu.edu ...


TOPICS: Constitution/Conservatism; Government
KEYWORDS: alito; banglist; firearms; interstate; interstatecommerce; intrastate; leavemygunsalone; machineguns; miers; mygunsmycountry; scotus
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To: Sloth
Any true conservative IS a libertarian.

LOL.

61 posted on 10/31/2005 11:34:28 AM PST by jwalsh07
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To: An.American.Expatriate
Only if the State governement were given specific charter to do so in their respective State Constitutions. The clause here in Texas is "technically" inoperative for as long as the US Constitution supercedes it.

Yes... I am also aware that the Courts of today don't see things that way. That is because they are basing their decisions on almost a century of increasingly screwed up rulings.

62 posted on 10/31/2005 11:38:16 AM PST by Dead Corpse (Anyone who needs to be persuaded to be free, doesn't deserve to be. -El Neil)
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Let me say this slowly. The Federalist Papers were written in 1788. The Bill of Rights to the Constitution was ratified in 1791. Whatever the Federalist Papers have to say about a bill of rights in general, they cannot be taken as an analysis of the congressional history of, or the original meaning of the Bill of Rights of 1791. Nor can the Federalist Papers provide any analysis of or interpretation of the state ratifying debates for the Bill of Rights of 1791. Therefore the precise purpose, scope, or application of the Bill of Rights of 1791 cannot be found within the pages of the Federalist Papers.


63 posted on 10/31/2005 11:41:54 AM PST by phelanw
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To: Double Tap

Thanks - wnated to get that clear up front.

Now, since the power to regulate RKBA was not granted to the feds - what would the effect be if the cititzens of the state of say maryland DID grant that power to the legislature of that state . . . .


64 posted on 10/31/2005 11:42:05 AM PST by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: steve-b
The courts have created a legal fiction of "selective incorporation", notwitstanding the fact that the original intent of the 14th Amendment clearly requires a full incorporation of Amendments I-VIII (the Ninth and Tenth don't contain any specific guarantees to incorporate).

The one and only amendment that lends itself to incorporation was the one beginning "Congress shall make no law...". And that is simply not a function of the courts anyway. If the people wanted to incorporate it then the people could and should have done it through the amendment process.

Other amendments such as the Second don't need incorporation or an amendment, they mean what they say.

65 posted on 10/31/2005 11:47:04 AM PST by jwalsh07
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To: An.American.Expatriate
The US Constitution SHOULD take precedent. Article VI makes that clear.

And you can't choose to give up rights. That would be like saying that if the citizens of Texas decided to give the power to the state to make slavery legal, it would be okie dokie.

Doesn't work that way.

66 posted on 10/31/2005 11:47:39 AM PST by Double Tap
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To: phelanw
Read post 57. First Congress. Debates on the purposed Amendments and their scope. The BoR was meant to protect a core set of Rights against all comers, including State and local governments.

"Hence, so far as a declaration of rights can to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a Government modified like this of the United States, the great danger lies rather in the abuse of community than in the legislative body." - Madison

He goes on for sometime, even talks briefly about the "tyranny of the majority" and how a BoR could over come this. Giving us all one, equal, protected set of Rights to bind us together as a Nation. Not as a minimum, but only as a starting point to be grown upon by each State. Start with a firm foundation kind of thing.

Do you begin to get the idea yet?

67 posted on 10/31/2005 11:52:22 AM PST by Dead Corpse (Anyone who needs to be persuaded to be free, doesn't deserve to be. -El Neil)
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To: Dead Corpse
I share your opinion. Of course, that means that all gun laws are unconstitutional.
68 posted on 10/31/2005 11:56:37 AM PST by 45Auto (Big holes are (almost) always better.)
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To: phelanw

"Five of the states that ratified the Constitution also sent demands for a Bill of Rights to Congress. All these demands included a right to keep and bear arms. Here, in relevant part, is their text:


New Hampshire: Twelfth[:] Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.


Virginia: . . . Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.


New York: . . . That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State; That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection. That Standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, excess in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.


North Carolina: Almost identical to Virginia demand, but with "the body of the people, trained to arms" instead of "the body of the people trained to arms."


Rhode Island: Almost identical to Virginia demand, but with "the body of the people capable of bearing arms" instead of "the body of the people trained to arms," and with a "militia shall not be subject to martial law" proviso as in New York."




Courtesy of Eugene Volokh


69 posted on 10/31/2005 12:02:04 PM PST by jwalsh07
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To: phelanw

Marshalls's opinion not withstanding, it seems silly to suggest that the rights of the Citizens of The United States can be infringed by any of the several states.


70 posted on 10/31/2005 12:03:08 PM PST by 45Auto (Big holes are (almost) always better.)
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To: antaresequity

This looks good. Bump for later.


71 posted on 10/31/2005 12:07:14 PM PST by Colorado Buckeye (It's the culture stupid!)
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To: 45Auto
Of course, that means that all gun laws are unconstitutional.

No. Not all. Just those that infringe RKBA. Product liability laws enforced at the State level would still be legal. I couldn't make a gun that blows up every third round and consider myself protected under the 2nd or any State RKBA provision.

;-)

72 posted on 10/31/2005 1:10:08 PM PST by Dead Corpse (Anyone who needs to be persuaded to be free, doesn't deserve to be. -El Neil)
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To: Dead Corpse

It took hanging around on FR for me to finally understand the nature and impact of the 14th Amendment. For that I am grateful. Its clear that the 14th "muddied" the waters of the RKBA, and that successive court decisions since its passage have not helped the matter.


73 posted on 10/31/2005 1:34:16 PM PST by 45Auto (Big holes are (almost) always better.)
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To: 45Auto
Same here. My only hope is to get a well seated (read: real Constitutionalists instead of those upholding the status quo) SCOTUS to hear a solid case and to agree with it.

This would massively upset the BATFE applecart, make the Brady Bunch melt down completely, and possibly reduce the over all value of some NFA collectors "retirement stash".

But... it would be the RIGHT thing to do. We need our Freedom more than they need their laws. This should be self evident.

74 posted on 10/31/2005 1:42:36 PM PST by Dead Corpse (Anyone who needs to be persuaded to be free, doesn't deserve to be. -El Neil)
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To: phelanw
So Madison had wanted to place limits on state powers in the BOR, but Congress did not include that language.

States wanted to keep their own authority regarding religion and other such matters. Thus, the scope of the First Amendment is limitted to Congress. You suggest that the authors and ratifiers deliberately wanted the First Amendment to apply only to Congress rather than to the states, and wrote the language to make that clear. If they likewise wanted to make the Second applicable only to Congress, is there any reason to believe they would not likewise have made that clear?

75 posted on 10/31/2005 3:15:57 PM PST by supercat (Don't fix blame--FIX THE PROBLEM.)
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To: 45Auto
45Auto said: "Its clear that the 14th "muddied" the waters of the RKBA, and that successive court decisions since its passage have not helped the matter."

I don't understand what you mean here.

To me, the Fourteenth Amendment is really pretty clear. It is the Supreme Court which seems to have invented an "incorporation" process which is nowhere mentioned to preclude lower courts from reading the clear language of that amendment.

76 posted on 10/31/2005 3:39:42 PM PST by William Tell (Put the RKBA on the California Constitution - Volunteer through rkba.members.sonic.net)
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To: blackie
The Second Amendment... America's Original Homeland Security!

I would like to alter that a tad if you don't mind.

Second Amendment, America's ONLY Homeland Security! That's more accurate. Blackbird.

77 posted on 10/31/2005 4:13:31 PM PST by BlackbirdSST ("Read my Lips, no new Taxes" G.W Bush "Trust me!" G.H.W Bush...do I have that right?)
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To: antaresequity
" But if Lopez means anything, it is that Congress's power under the Commerce Clause must have some limits. "

Senator Spector will not like this.

I saw him a few weeks ago expressing anger (it appeared to me ) that the "Rehnquist Court" in the Lopez case did not allow Congress to control guns in a school zone, using interstate commerce.

78 posted on 10/31/2005 4:35:10 PM PST by gatex (NRA, JPFO and Gun Owners of America)
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To: William Tell
I agree with you. The 14th should not have to be invoked in order to protect the original 10 Amendments at the state level. If we had intellectually honest federal courts (including the US SC) over the ensuing century or more that the 14th has been part of the Constitution, we would not be in the place we are today vis a vis the 2nd. The selective incorporation doctrine not being applied to the 2nd has made no end to trouble for the RKBA at the state level. Couple that with bad precedent from Miller on up to the 9th Circuit's recent Silviera disaster and its easy to see how the citizens of California are at the mercy of a solid Marxist state legislature. It therefore matters not that most of California's gun laws are unconstitutional; they stand in force and that is what the state uses to enforce them. It seems to be tyranny in my book.
79 posted on 10/31/2005 5:41:40 PM PST by 45Auto (Big holes are (almost) always better.)
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To: 45Auto
45Auto said: "It therefore matters not that most of California's gun laws are unconstitutional; they stand in force and that is what the state uses to enforce them. It seems to be tyranny in my book."

It is tyranny.

That is why I am dedicating as much of my time and energy as I can in support of the upcoming petition drive to add the Right to Keep and Bear Arms to the California Constitution.

It's been clear to me for some time that Democratic politicians are more anti-gun than the average Democrat. Getting the RKBA on the ballot provides an opportunity for liberal politicians to put up or shut up.

Hurricane Katrina has been a friend to gun owners, illustrating just how thin the thread holding civilization together can be.

80 posted on 10/31/2005 6:11:19 PM PST by William Tell (Put the RKBA on the California Constitution - Volunteer through rkba.members.sonic.net)
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