Posted on 12/04/2006 2:04:25 PM PST by neverdem
Myself, I prefer the John Bolton type of leadership. He never leaves any questions as to what he meant.
The various states have *all* ratified the Constitution and are therefore subject to it by their own assent. While their individual Constitutions may afford greater protections than the federal Const. they may not afford less protection. And I do believe a future USSC will force the states to abide by the Second Amendment.
The Constitution does not guarantee or even provide for the right to vote, yet it has been determined to be unconstitutional to require the payment of a tax to exercise the non-existent "right to vote."
No Navy Bases in Alaska. And yes, those that are discharged are treated just as all other civilians.
Would you say that internet and television is protected by the 1st Amendment?
I don't need to resolve it. If they (the gun Nazis) want to 'resolve' it, they can come and get what I have..
See post 47 about if the Bill of Rights should apply to states by default.
A good .50 cal rifle costs entirely to much and weighs too much... But its a nice thought...
The best part about a .50 is that you can really reach out and touch someone. (You know getting personal when they aren't expecting it) LOL
One of our Founders, Tench Coxe, said: "Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American ... the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people." \
I don't see any "except ordnance" suggestion here. The people were to have access to everything that a standing army could use against them, so that their greater numbers than that of a standing army would assure that the people would be supreme. This is most definitely a statement that the right to keep and bear arms is intended as a check against ALL government, including standing armed forces.
The judge is not going to allow the presentation of evidence as part of a motion to dismiss, especially when the factual nature of the evidence has been determined by the Supreme Court to be essential to the application of the law. If the prosecution contradicts the defense, the judge is going to have to have a trial, so that the jury can decide the facts and apply the law.
If the judge DID dismiss a second time, without allowing presentation of evidence at trial, the Supreme Court could simply repeat the Miller decision to them without change. Given the guidance from the Supreme Court, what motion to dismiss could the defense offer that would be convincing?
The District Court judge used his own knowledge to determine that a short-barreled shotgun was "arms" and this could hardly be contradicted by the prosecution. But on what basis would the judge decide that a militia would or would not find a short-barreled shotgun useful? This would required evidence conceivably far outside the judge's experience and subject to prosecution arguments.
It is within the judge's power to dismiss for lack of evidence after the prosecution has presented its case. I believe that double jeopardy attaches as soon as any evidence is presented at trial. If so, then the prosecution would not be able to appeal. Even if double jeopardy did not attach to such a dismissal, the prosecution would have little grounds to appeal, since it is unlikely that the Supreme Court would overrule the judge and dictate that the evidence was sufficient. Even in that case, it would simply be necessary to complete the trial, leaving the matter to a jury. From a jury acquittal, there would be no appeal.
Thank you for the informative posts, this has turned into a rather interesting thread.
A detailed knowledge of constitutional history is something that I need to gain!
Some of the posters on this site would claim that the Fourteenth Amendment was unjustifiably used to apply the First Amendment to the states. That the freedom of speech or right to assemble of freed black slaves was of no interest to those who passed the amendment. The passage of the amendment just after the Civil War means nothing. And the inclusion of the "privileges and immunities" clause, repeating the phrase used in the infamous Dred Scott decision, means virtually nothing, certainly not the right of freed slaves to keep and bear arms as the Supreme Court suggested Dred Scott would have if his escape from bondage had been allowed.
To further the nonsense, those same posters would claim that the act of "incorporation" somehow causes the Fourteenth Amendment to mean something different after a Supreme Court decision than it had prior to such ruling.
It was common in warfare to attack an enemy fortress by tunneling under the walls and emplacing as much gun powder as possible to completely destroy what was above the mines. Today a single tactical nuclear weapon could accomplish that same job and that is what they are intended to do today.
Using your argument, it would be perfectly consistent with the Second Amendment to outlaw machine guns. You put no burden on the government to seek the consent of the governed through the amendment process, but allow Congress to claim that technology takes precedence over the Bill of Rights. I don't agree and I would challenge you to say what arms, other than nuclear, you would permit the Congress to outlaw simply because they didn't yet exist at the time of the writing of the Bill of Rights.
Perhaps there are crimes so complex that we can dispense with jury trials. Perhaps political issues are too complex to permit popular voting. Perhaps some ideas, like communism, are simply to dangerous to permit free speech. I don't think so.
From the opinion:
"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."
Where in the opinion does the court hold that the right to keep and bear arms is a collective right, differing from other rights guaranteed to the "people" as used in the other amendments? Do you notice that there is no mention in the opinion as to whether 2A is individual or collective?
Miller, an individual, would have been off the hook had the court decided a sawed off was suitable for military use.
True, it is a rather irregular opinion and certainly in no way a reliable precedent for the "collective rights" gang. The case would most certainly have to be twisted to support such a position.
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