Skip to comments.Law Firm Uses Online Constitutional Source Library to Prep for Gun Law Cert Petition [DC gun case]
Posted on 08/09/2007 6:06:52 PM PDT by kiriath_jearim
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"and the feds could ban guns
Under the power of ... what?
"the states could ban guns outright"
Some guns (if it's not against the state constitution), yes. Not all guns. If they banned all guns they couldn't have a well regulated Militia.
They may not be now, but by your interpretation - coupled with your incredible passion for insisting thereon - they could be.
Under the power of ... what?
Same power that lets the feds enact and enforce 922(o). You don't seem to have a problem there. Just remove the "machine" prefix from "machinegun" in that law, and they're pretty much gone (save some expensive bickering over "it's legal, you just have to pay an insane price for pre-'86 ones").
Not all guns.
Why not? As you noted: "the California State Constitution does not protect the RKBA". Same goes for a bunch of other states. For those that do protect RKBA in their state constitutions, you've made it very clear that's a choice up to the majority (supermajority, whatever applies) of voting citizens in those states.
I've been following your posts for a long time. From what you have written (by the volumes), you advocate (with extreme prolific passion) an interpretation of RKBA and the 2nd Amendment whereby individual ownership of arms can, in all practicality, be outlawed (save for some legalistic saving trivial technicality, such as, say: militia members only consist of Irish-descended midgets, and they're only allowed muskets while on patrol for the UN in Nigeria).
The federal government reasonably regulates the interstate transportation of some guns that threaten public safety. These laws were examined by the courts under a "rational basis" review and found constitutional. I don't know who would think that a federal law banning all guns would be rational.
But this does bring up an interesting point. As recent as 1980 in Lewis v US, the U.S. Supreme court has used the "rational basis" review in gun cases saying:
"The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment if there is "some `rational basis' for the statutory distinctions made ..."
What makes that interesting is that if the U.S. Supreme Court thought an individual right was being infringed they'd use the "strict scrutiny" standard rather than "rational basis".
"For those that do protect RKBA in their state constitutions, you've made it very clear that's a choice up to the majority (supermajority, whatever applies) of voting citizens in those states."
No. For those states that do NOT protect the RKBA in their state constitutions, I've made it very clear that's a choice up to the majority (supermajority, whatever applies) of voting citizens in those states.
Are you saying that the people of a state cannot do that? They can't make a decision how they want to run their lives? Well excuse me, but who are you to tell citizens of another state how to live? Seriously.
Now, if a state law violates the federal constitution, that's a different story. If a state totally disarmed its citizens, they would not be able to assemble an effective, well regulated Militia. Congress, therefore, would be unable to perform its constitutional duty to use the state Militia to "execute the Laws of the Union, suppress Insurrections, and repel Invasions."
"From what you have written (by the volumes), you advocate (with extreme prolific passion) an interpretation of RKBA and the 2nd Amendment whereby individual ownership of arms can, in all practicality, be outlawed"
You read it correctly, but misinterpreted what I said. I'm not advocating anything. If I say the sky is blue it doesn't mean I think it should be that color. It just is.
I have repeatedly pointed out the dangers of taking this issue to the U.S. Supreme Court at this time. I have demonstrated why I believe this through numerous cites of federal courts cases that the U.S. Supreme Court will be looking at.
Because I do this, you and others have concluded I have some personal agenda. That's irrelevant. You have no logical and coherent arguments to make, so you start making assumptions about my personal motivations.
It’s fair to wonder why a prolific contributor to FR spends his thousands of posts advocating a view that most readers construe as anti-RKBA, and who insults those who attempt to understand his motivation.
Am I misguided in concluding that, in your interpretation of the 2nd Amendment:
- every state that does not explicitly protect RKBA in their constitution could, tomorrow, pass a law banning guns entirely?
- every state that does explicitly protect RKBA in their constitution could, tomorrow, pass a state-constitutional amendment repealing that protection, and the next day pass a law banning guns entirely?
- the feds could, tomorrow, pass a law limiting militia membership to Irish-descended midgets?
- the feds could, tomorrow, pass a law banning all firearms except muskets?
- the feds could, tomorrow, pass a law limiting possession and use of legal firearms (at this point, only muskets) to militia members (at this point, only Irish-descended midgets) when actually called out by the President?
From what most can tell, your passionately-promoted interpretation allows for the above. As the conclusion is so obviously anti-RKBA, pardon us if we construe your prolific writings on the subject as advocating a legal position whereby individual ownership of modern firearms can easily be abolished - to wit, anti-gun.
Do you believe a criminal has the right to remain silent? That he has a right to a public attorney at no charge? That he has a right to a trial by jury? That if evidence that would convict him was obtained without a warrant, that evidence cannot be used even it means he goes free?
If you believe that, let me ask you. Why are you pro-crime? Why do you advocate we coddle criminals -- are you some sort of namby-pamby, bleeding heart liberal? Or are you a felon? When did you get out of prison?
Why are you even on this forum with that attitude? We're tough on crime here at FR. You don't belong.
"- every state that does not explicitly protect RKBA in their constitution could, tomorrow, pass a law banning guns entirely? - every state that does explicitly protect RKBA in their constitution could, tomorrow, pass a state-constitutional amendment repealing that protection, and the next day pass a law banning guns entirely?"
I just answered that. Short term memory loss?
"- the feds could, tomorrow, pass a law limiting militia membership to Irish-descended midgets?"
That would be unconstitutional, violating their due process.
"- the feds could, tomorrow, pass a law banning all firearms except muskets?"
I have no idea where they would get the power to do so. Can you tell me where you think they would? Otherwise this hypothetical is a complete waste of my time.
"- the feds could, tomorrow, pass a law limiting possession and use of legal firearms (at this point, only muskets) to militia members (at this point, only Irish-descended midgets) when actually called out by the President?"
Nope. For the reasons I just gave.
OK. I answered your questions. Answer mine. When it was ratified in 1791, do you think the second amendment protected the right of all individuals in the United States to keep and bear arms? It says "the people".
Please explain why there were exceptions back then, but why there should be no exceptions today? Being a namby-pamby, bleeding heart liberal that coddles criminals, I guess you think we have a "living constitution" that we can change whenever we want?
Why? You keep asserting that only militia members enjoy 2nd Amendment protections, and that the feds get to define the militia. You won't accept that "the right of THE PEOPLE to keep and bear arms shall not be infringed" actually applies to all people, save only those specifically and individually adjudicated otherwise. (Which leads to answering your sarcastic previous questions: those rights are a matter of the adjudication process, starting from first principle "innocent until proven guilty" and protecting the innocent while discerning the guilty.)
Short term memory loss?
No, just giving you an opportunity to confirm or deny that you do, indeed, think a majority can vote away the rights of a minority - which admittedly you have made clear you believe and defend. Even a state constitution is subject to a mere vote of alteration; in your assertions there is no "natural right of RKBA".
I have no idea where they would get the power to do so.
In 922(o), the feds have banned a category of arms entirely suitable, even central, to militia use and national defense. If you can't explain what's wrong with that prohibition, then it is a very short step to banning pretty much all other arms, and optionally stopping at the "the Founding Fathers had muskets, so that's all you can have" line.
For the reasons I just gave.
You gave evasions, not reasons.
You hold that:
- the feds get to define who is in the militia
- the only "people" who may enjoy the 2nd Amendment are the militia members as defined
- states which do not explicitly protect RKBA in their constitutions can, by popular vote, outlaw individual ownership of arms
- states which do explicitly protect RKBA in their constitutions can, per state constitutional process, repeal that protection and then promptly execute the prior point
- the feds can prohibit categories of weapons, without limit short of total prohibition of all firearms (say, ban everything but muskets)
These are the interpretations people get of your assertions. Now, without insulting me, please articulate the misunderstandings in the above points.
It does behoove us to call out “those who bend words to their purposes” and thus are “very likely in pursuit of anti-social” aims, at least to aid the understanding of the persuadable.
And the Dems can't get rid of it, because this clause is the only thing that would permit the Draft
There is nothing in the Constitution about the Draft. There is only the authority to bring the militia into Federal Service. No militia = no "Selective Service"
Yeah, that’s what I think too. Of course, IANAL.
Considering that they won’t truly let militia members exercise that right (you can’t buy an M4), might the draft be invalidated then? They want you to fight and die for your country, but won’t let you get tools to train with on your own well before service is compelled.
Since they argued against adoption of the Constitution, and lost, their position would not be regarded as authoritative as to the intent of the Constitution.
They set minimum standards, yes. There's nothing whatsoever stopping each state from enrolling whomever they please. We have the National Guard today, yet many states have a separate and independent State Guard.
"You won't accept that "the right of THE PEOPLE to keep and bear arms shall not be infringed" actually applies to all people, save only those specifically and individually adjudicated otherwise."
Correct. I don't accept that.
When ratified in 1791, whole groups of people were not protected by the second amendment. Slaves, of course. Women and children. Indians. Foreigners. The infirm. The disabled. The elderly. The list goes on.
"THE PEOPLE" were white, male, citizens, 18-45 years of age. Dispute that with some facts rather than your guessing games -- "specifically and individually adjudicated otherwise", indeed.
"the only "people" who may enjoy the 2nd Amendment are the militia members as defined"
So say the courts.
"states which do not explicitly protect RKBA in their constitutions can, by popular vote, outlaw individual ownership of arms"
Yep. Not ALL arms, as I explained.
You wouldn't force the citizens of another state to protect that right, would you? Would you force those citizens to also protect the right to an abortion? Or will you let them decide how they want to live their lives?
You've got this little dictatorship streak in you, don't you? Kinda like YOU know what's best for everyone else.
"states which do explicitly protect RKBA in their constitutions can, per state constitutional process, repeal that protection and then promptly execute the prior point"
Sure. And they can repeal the second amendment to the U.S. Constitution.
"the feds can prohibit categories of weapons, without limit short of total prohibition of all firearms (say, ban everything but muskets)"
Nope. A state can take the federal government to court, claiming that their ability to form an effective, well regulated Militia is being infringed. In Miller v US, the U.S. Supreme Court said specifically that Militia weapons were protected from infringement.
"In 922(o), the feds have banned a category of arms entirely suitable, even central, to militia use and national defense"
They did? Then where does the U.S. military get their weapons? Where does the Texas State Guard get their weapons?
The federal government regulated the interstate transportation of certain weapons by private individuals, yes. This was done for public safety reasons, and passed the "rational basis" test by the U.S. Supreme Court.
Yep. You have to pay attention to wade through some of the period controversies from the early Republic. You read (for instance) about Jefferson writing about separation of church and state, and then find he went to church in the US Capitol building. Not exactly what some folks expect.
Since they argued against adoption of the Constitution, and lost, their position would not be regarded as authoritative as to the intent of the Constitution.
Most of the anti federalists argued against specific aspects of the proposed Constitution, -- not against the overall concept of a Constitution.
-- They were not anti constitutionalists, - IE, - they did not argue, [as some here do], - that States [under majority rule], can ignore our individual rights to life, liberty or property in the writing of laws.
Calling up the militia as per Article I Section 8 is in effect a draft, and its necessity is explained by the opening lines of the 2nd, -- a militia being '-- necessary to the security of a free state, --".
The SCOTUS is just as bound by our Constitutions clear words as any other level of gov't in the USA.
A 'decision' by them, - claiming that our rights to own and carry arms can be infringed by 'reasonable' [health & safety] 'regulations' will be unenforceable, just as booze prohibition was unenforceable.
Fiat prohibitions on guns, booze, drugs, whatever, -- are unconstitutional under our concept of 'due process of law'.
As Justice Harlan recognized:
" -- [T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property;
the freedom of speech, press, and religion;
the right to keep and bear arms;
the freedom from unreasonable searches and seizures; and so on.
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints --"
This is good that the founding documents and the surrounding discussions are being used in this case.
If this becomes precedent, then the next thing to push is a Constitutional Review of most Federal programs/powers with respect to the
Enumerated Powers of Article I, Section 8, and the 10th Amendment which further clarifies A1.8.
I always ask leftists, when they use the canard of “you must be a member of the militia to own a firearm”,
whether they want to exclude all women and anyone over 45
from owning a firearm, because the militia is exclusively males 17-45, by law.
What did I miss at #72?
That, plus the explicit porn picture I attached.
Was the porn apropos? — Flasher?
Naturally, that is unacceptable to those here at FR who claim that at ratification in 1791, not all of WE THE PEOPLE were protected by the second amendment. Slaves were not, as they could not attain citizenship while enslaved. Nor Indians, as long as they were members of tribes hostile to our Constitution.
To say that the 2nd did not apply to women and children/ foreigners/ the infirm/ the disabled or the elderly is to deny the reality of our history. -- That ALL of the above were, in emergencies, duty bound -- and did defend our country from enemies foreign and domestic, -- is beyond rational dispute.
That only "the militia" [white, male, citizens, 18-45 years of age] were obligated to serve as troops [to execute the "Laws of the Union", etc, by Congress]; - did not absolve everyone else from their duties to defend the nation.
The Courts that claim the only "people" who are protected by the 2nd Amendment are militia members - [white, male, citizens, 18-45 years of age] are simply finding excuses to legitimize infringements by fed/state or local gov't.
Popular votes [majority rule] cannot 'outlaw' individuals who own arms, nor the arms that they own. -- Malum Prohibitum laws violate due process as per the 14th Amendment.
To suggest that the second amendment to the U.S. Constitution can be repealed is to deny a basic founding concept, - that our rights to life, liberty or property are inalienable.
Exactly - a point far too many people miss, and which took me a long time to figure out.
There is, however, one critical difference I'm getting increasingly torqued about.
Calling up the militia axiomatically presumes members thereof are already equipped and trained (whether by taxes or their own dime); they can serve, effectively, right now. A citizen has a duty, an interest, in being ready to defend self and nation at any moment.
A draft assumes participants are unequipped, untrained, and quite possibly unwilling. In many cases they have long been forbidden any suitable weapons, and will most likely not be allowed their own should they have any; they have no notion of where they will be assigned save "bullet sponge"; most will do what they're told, but that differs from enthusiasm. Conscripts may justifiably view a draft as "involuntary servitude" as they are treated as subjects compelled, not citizens serving.
Effective combat requires long training and familiarity with the arms used. Sure a conscript may get a few weeks' training with an M16 before combat insertion, but that's not enough to assure real confidence and effectiveness under stress. This country was founded on citizens who owned their own weapons, were familiar with them from youth, and thus had justifiable confidence in their abilities.
Ergo, the nuanced difference is:
- The Constitution allows for calling up any/all citizens* to defend the nation ... and guarantees the right of those citizens to arm & train themselves long before such service is needed.
- A draft, while on the whole the same as calling up the militia, presumes conscripts have neither arms nor training.
Personally, I've obtained certain arms & training on my own, so should I be "drafted" it would actually be a proper callup to service I am ready for.
A case could be made that: as the feds prohibit** ownership of ubiquitous military arms - the M16, M4 and such - in violation of the 2nd Amendment, then they have voided their power to call up the militia.
* - Yes, RP, I know you view that differently. Tough. The authors of the Constitution used the term "militia" for one purpose and "the people" for another, indicating they saw one as a subset of the other, and reserved RKBA for the larger set; also, 'tis oppressive to insist on reducing the current set of "citizens" to centuries-old limits, which so many have fought so hard to overcome.
** - Yes, if you are rich and/or connected you can buy a decades-old machinegun from a tiny and dwindling pool of used items subject to a 1200% (and growing) virtual tax. That is, for all practical purposes, a ban.
Quite. Whatever a “citizen” was a couple centuries ago, the Supreme Court has subsequently affirmed that the term is much more broadly encompassing now. Women, minorities, children, elderly - if born here, or were “naturalized”, enjoy the benefits and explicit rights of citizenship. Slavery has been abolished. Indians are included as citizens. Such all constitute “the people” today as a clearly accepted tenet of Constitutional law - an achievement which a great many people fought, suffered, and died to rightfully obtain in the face of wrongful oppression. The 2nd Amendment clearly states “the right of THE PEOPLE to keep and bear arms shall not be infringed”; whatever connection to discussion of a militia, that enumerated right is not linguistically dependent on the definition of “militia” or use thereof.
That the definition of “militia” is X is relevant only insofar as the Founding Fathers recognized that X would be a subset of “the people”. X is not specified in the Constitution, but only by subsequent subordinate legislation. The preamble to the 2nd Amendment makes clear that whatever a “well-regulated militia” is (leaving Congress to define relevant details later as circumstances dictate), it is best obtained by ensuring “the right of the people to keep and bear arms shall not be infringed”.
Yes, that means that my 9-year-old niece does have a right to her rifle (despite being both female and young), my aging father does have a right to his shotgun (though far beyond “militia” years), and I have a right to obtain an M4 (denied me despite being a “militia” member by law).
Insofar as anyone can have an enumerated Constitutional right revoked, it is a long-established standard that while possible, it only happens involving adjudication pursuant to specific circumstances involving a specific person - and then only so long as the circumstances persist. This is extremely far from what some contend, trying to minimize the scope of “the people” to an ill-defined subset of an oppressively restricted elite recognized hundreds of years ago. Better to think that the only restriction on the 2nd Amendment is - the 2nd Amendment (to wit: your enjoyment of the RKBA only goes so far as where my enjoyment of the same right gives me justification to shoot you; rephrased: you can have a gun, but if you point it at me I’ll see you don’t have it for long).
Elsewhere in the Constitution, harsh punishment is prescribed for those who conspire to deny rights to citizens. The 2nd Amendment enumerates a right enjoyed by all citizens; any, even states or cities, who move to infringe that right are subject to punishment unto execution.
The right is clear. That there may be nuances subject to arguable variance in interpretation does not detract to the clear intent and language of the enumeration thereof. Any language, if you argue hard enough, is subject to willful misinterpretation; those who insist on denying rights due to language weakness are enemies of the Constitution, our rights, and our nation - and, if they get pushy about it, will be treated as such.