Posted on 03/21/2008 6:29:24 AM PDT by Pistolshot
I have spent a lot of time surfing some of the other discussion threads on the hearing before the US Supreme Court of DC v Heller. A lot of comments have been about the testimony about machine guns, rifles, Miller, and a host of zealousness that makes gun-owners look as bad as the most strident anti-gunner. It does NOT serve us well.
Heller is about handguns, and the ownership, use and ability to protect ones self in the home.
It is not about NFA ‘34
It is not about GCA ’68.
It is not about Hughes.
It is narrowly defined by the SCOTUS to handguns.
Now, there are pie-in-the-sky zealots who want everything put in order, the way it was, in one-shot. The bad news is that is NOT going to happen.
Now that we have gotten that out of the way, lets look at what we can get.
We get a definitive ruling that the restrictive law of DC is in direct violation of the individual right to own a firearm, specifically a handgun, and that the restrictive DC law is overturned, affirming the lower courts decision. The DC City Council will have to come up with something that will pass judicial muster. Most likely a complete reversal of the 'secure' weapons in the home provisions along with opening of registration of handguns in the city, as the law read before the Council banned all handguns.
We get the perception from the courts that they would like to correct Miller. Justice Kennedy – “Miller may be deficient.” The translation here is : “Bring us a case we can rule on.”
Heller opens this door.
What else do we get?
We get the chance to find the correct case to bring to the justices to roll back Hughes, which will roll back the restrictions on new machine guns.
We get the chance to bring the correct case to roll back GCA ’68 and the importation of surplus weapons
All of these are dependent on how the Supremes rule in Heller, but it will not signify that a total revolution in gun control and gun laws has taken place
It only means we have won one battle, and there are many, many more to come.
The right of ‘the people’ has been taken incrementally, a bit at a time. The only way will get that right completely restored is in the same fashion.
Incrementally, one piece at a time.
Ginsberg KNOWS that this case is about machine guns as much as handguns. Is the Heller Court going to invent yet a new "self-defense" category of firearms that is protected by the Second Amendment? That "the right of the people to keep and bear arms" can be constrained by whatever the Court decides are suitable arms for whatever purposes the Court recognizes? I think Ginsberg knows that isn't going to happen.
If Ginsberg votes for individual right, then how can she vote for less than strict scrutiny? And if she votes for strict scrutiny, then machine guns are IN.
Ginsberg and the other commies have decided that there is a right to privacy that prohibits the government from preventing a school teacher from taking a pregnant teenager out of school without her parents' permission to allow a physician to kill the unborn child. How on earth can they articulate a reason to keep a combat veteran, for example, from keeping in his home the same weapon that his government demanded he carry in a foreign city?
Is the SCOTUS held by lower court stare decisis? No, so why are they hesitant to deal with a multiple issue case?
There's just no way that the Court is going to mention existing federal legislation. Such legislation is subject to change at the whim of Congress and mentioning it would be make no sense to future Courts that would be charged with judging cases based on the protection of the Second Amendment.
If the Second Amendment doesn't protect machine guns, that lack of protection is completely independent of any acts of Congress. Similarly, if the Second Amendment does protect machine guns, then an act of Congress saying otherwise is irrelevant.
The Court must decide that the right to keep and bear arms is an indivdidual right.
The Court must decide that the right encompasses self-defense as well as preparation for militia service.
The Court must decide what level of scrutiny is to be applied, UNLESS they can rule that any level of scrutiny would forbid the banning of a useful category of arms. But that would immediately suggest that machine guns cannot be banned categorically.
All of this has tremendous immediate relevance to statutes throughout the country. The Ninth Circus has a bucket full of cases which have been decided based on the "collective rights" nonsense, denying standing to people whose rights have been infringed. They are going to lose their favorite method for denying the right to keep and bear arms. They will no doubt come up with something else, but, hopefully, the Supreme Court will stop denying cert for such cases.
However, since the Army, Air Force, Navy and Marines are members of the militia, anything that the SCOTUS prohibits MUST apply to our military forces.
What arms that the people use against the SCOTUS, if they make the wrong legal decision, will be up to the people of the United States of America.
Arms could be anything from oil on the front steps of their homes, or bacteria in their next meal. They will never know, until it is too late.
There is a hierarchy. If the 9th Circuit (for instance) decides a certain way that prescedent is valid for that specific circuit. IANAL, but that’s my best knowledge. Obviously when the Supes decide its supposed to be valid for all.
This is not a multiple issue case. It's about handguns banned in a city that allows rifles and shotguns kept in the home if they are disassembled or lacked.
The Cert by the SCOTUS is to answer this question only. Nothing more, nothing less.
Each one of the laws we have to change will need it's own challenge, one that can win in the SCOTUS. Heller is a first step.
We are not going to get it all this time around. No matter how hard anyone wishes it.
Each one of the laws we have to change will need it's own challenge, one that can win in the SCOTUS. Heller is a first step.
I am trying to state that 300 Million people may stand up to the 7 members of the SCOTUS and tell them:
Hell NO!
Question: When did you become a subject?
As for me, the SCOTUS was hired to support the people since we the people are the government.
When they no longer do their job, then they should be fired.
Heller opens this door.
What else do we get?
We get the chance to find the correct case to bring to the justices to roll back Hughes, which will roll back the restrictions on new machine guns.
We get the chance to bring the correct case to roll back GCA ’68 and the importation of surplus weapons
All of these are dependent on how the Supremes rule in Heller, but it will not signify that a total revolution in gun control and gun laws has taken place
Very good post and follow-up comments.
The simple fact is, as others here and elsewhere have posted, that the Supreme Court is highly unlikely to issue a broad ruling. The fact that it granted cert with a very narrow set of questions on which it would rule is a huge hint at this. All of the questions regarding full autos were an attempt to trip up Gura, to get him off message and to give folks like Ginsburg an opportunity to vote with DC.
I personally think that we're going to win on the issue of individual vs. collective right. That is HUGE. That is really the crux of the 2nd Amendment debate, and we're only about 3 months away from winning it. I think that we'll even get 6 votes. Look, we've got Alito, Roberts, Scalia & Thomas for sure. Kennedy, based on the oral arguments, is also in our camp. IMHO, the big surprise will be Granny Ginsburg - she CAN'T vote against an ENUMERATED right being individual, and almost HAS to vote for strict scrutiny...or else a bunch of states are going to pass restrictive abortion laws and base their defense of them on this case AND the fact that the "right" to an abortion isn't an enumerated right. She's been sick and doesn't look well, and I have to believe that she wants to leave the law in such a state as to prevent (or make as difficult as possible) a repeal of Roe v. Wade. If that means that this uber-liberal anti-gunner has to accept guns, she'll do it - because abortion is more important to her than taking our guns.
Once we win on the individual right, that does open the door. First and foremost, this allows individuals to bring cases and not have the lower level courts in gun-hostile districts and circuits toss them for "failure to state a claim."
Regarding Hughes, which is the law I'd most like to see tossed out (short term, anyway), once we win this case we've essentially won that one. How? Because of 2 factors. First, the federal ban is virtually identical in effect to the DC law (i.e. if anyone hasn't registered a subject gun by X date, then they are forever prohibited from registering it-which, of course, prevents even mere ownership). The 2nd factor, the bridge between handguns and full autos, is the Miller case.
As most here know, Miller himself was a moonshiner. He and his partner were caught by "revenuers" with a sawed-off shotgun, which was and is illegal under the '34 NFA unless you have the tax stamp. He didn't, being both a criminal and also not so stupid as to pay a $200 tax to have a $20 shotgun with a short barrel. Long story short, he won his case on the District Court level, and the feds appealed directly to the Supreme Court. Miller was unrepresented (and also dead), and the Court ultimately decided that a short-barreled shotgun was not protected as a militia arm under the 2nd Amendment, since it (and I'm paraphrasing) tend to improve the effectiveness or the efficiency of the militia. Also, it wasn't in common use.
So where does that leave us? If we win in Heller on the individual rights issue and on the unconstitutionality of bans on whole classes of firearms (and I believe we will, given Kennedy's performance), then a plaintiff who has applied for a tax stamp to purchase a post-5/19/1986 full auto (preferably an M16, for reasons I'll state below) can bring a case in the DC District Court (because that's where the BATFE "lives"). Being a ban on a whole class of firearms, the law will immediately be suspect. Coupled with reams of evidence that the M16 was and is both the main infantry longarm of the armed forces, all of the state National Guard units and most state police forces, this will prove that the M16 meets the Miller test. BTW, the reason the "reams of evidence" is important is because in Miller the Court could say that a short barreled shotgun didn't have militia utility only by saying that "...it is not within Judicial Notice...." Reams of evidence ARE Judicial Notice. No weasling out on THIS one.
OK, why the M16? Because there was no such thing as the M4 in 1986. My ideal plaintiff is a squeaky-clean model citizen who happens to own a pre-ban M16, and who is turned down in his application for the tax stamp for an identically-featured post-'86 M16. If you really want a legal wet dream, let's deal with one gun made and registered with BATF on 5/18/86, and one made on 5/20/86 in the same factory, with the same exact features that couldn't be added to the NFA Registry because of its post-ban status. So, here you'll have Mr. Squeaky Clean, who the feds think is fine and dandy to own a pre-ban, but the same guy can't own a virtually identical gun made in the same factory only 2 days later. This defies ANY strict scrutiny argument and, in fact, defies ANY rational reasoning. The Court will, of course, also consider that full autos have NEVER been outlawed, and that some 160,000 are freely transferrable among probably 150 million adults in this country, that the guns aren't in common use ONLY because of the '34 NFA and, of course, the '86 ban, and that the crime rate among registered owners of full autos is miniscule. Further, repealing the '86 ban just puts us where we were 22 years ago - you still have the tax stamp, you still have the background check, LEO signoff (unless you form a trust or corporation), etc. Was the country like Somalia or Iraq before the ban, when anyone with about $700 could get a full auto? No way, and the Court won't buy the horror stories of the antis on this one. I think that we win a repeal of the Hughes act easily in a case like this.
Prediction: we'll be able to buy new full autos, or install new happy switches for existing semi-autos, within 5 years.
My goal: let's get 1 million or 5 million full autos into the hands of the citizenry. When you don't have "blood in the streets" the level of unease about them - and other guns - will subside substantially. Also, the more full autos out there, the less likely that some tyrant-wannabee is going to go for the brass ring (and, after all, isn't that the WHOLE POINT of the 2nd Amendment?). Once there are literally millions of full autos in public hands, I can see an a new law repealing import bans of all types - what would be the point?
Given what special forces worldwide have used since 1939, anything from a sharp stick to a nuke would seem to be protected as useful to the militia. OK, maybe a nuke is going too far - but I cannot buy into any restriction any weapon that can be carried by a single average soldier.
I know that!
SCOTUS is trying to define the term ARMS in a way that could prohibit handguns.
Today, I have been trying to explain that the term ARMS can and will include anything from bacteria to atomic weapons, if the citizens of the United States decide to fight.
When the French citizens used a chemical introduced into the fuel tanks of German vehicles during WWII, was that chemical not being used as an arm?
When a briefcase using acid as a trigger was placed under Hitler's table, was that not being used as an arm?
People today seem like they are ASKING PERMISSION FROM THE SCOTUS to protect their own lives.
What is wrong with that statement?
If the Court would permit a registration list of all those who attend a house of worship - with a user fee to be paid for the privilege - then I'll believe you're wrong. Same goes for buying a newspaper, magazine or book. By my way of thinking (and, obviously, yours), those things are infingements and so is any registration of gun owners or their guns.
The ONLY way I could accept it is if the gov't wants to register me as a member of the militia, and to find out what (full auto) weapon(s) we own, so as to draft contingency plans for a joint Russo-Chinese invasion. Otherwise, the government can fo guck itself.
When and if the time comes that I would need one then I imagine I’ll deal with the situation at the time.
I have heard more than one old, crusty veteran state words to the effect that "just because you don't have a full auto and plenty of ammo before the fit hits the shan, doesn't mean you won't end up with one. Mere possession of a full auto can't stop a bullet from a 100-year-old boltie."
You work your way up...
I know that your statement is plain common sense, but my Faith waivers when it comes to powerful lawyers. With the human 'default' setting being to screw over each other for power & money, I wont be suprised by anything till the decision is read...
Although I do believe their evil has backed them into a corner, Im just not so sure which direction the sociolibtards on the court will lash out, maybe their own self-preservation will rule...
/ holding breath
She can't, esp. for an ENUMERATED right. Abortion - her favorite right - isn't enumerated anywhere. It is all smoke and mirrors, emmanations from penumbras and other such BS (BTW, Thomas reputedly has a sign up on his Supreme Court office wall saying "Don't emmanate into the penumbra"). She wants to save abortion as part of her legacy, then she HAS to vote individual right AND strict scrutiny. I predict that she will surprise everyone by throwing the anti-gunners under the bus, in order to preserve abortion (not that she'd ever say that, but I don't care about the why, only about the result).
Ginsberg and the other commies have decided that there is a right to privacy that prohibits the government from preventing a school teacher from taking a pregnant teenager out of school without her parents' permission to allow a physician to kill the unborn child. How on earth can they articulate a reason to keep a combat veteran, for example, from keeping in his home the same weapon that his government demanded he carry in a foreign city?
Here's a better one: let's use that same vet. He not only used a full auto M16 in Iraq or wherever, putting his butt on the line for all of us, but he ALSO owns a pre-5/19/86 full auto M16 (cost: about $15K). But he wants a new one, and the government won't let him buy it. Talk about a completely IRRATIONAL policy! BTW, that is so irrational IMHO that it would fail ever a rational scrutiny test - and there's no way that we're going to end up with rational scrutiny on an enumerated right that is exercised by at least 40% of the adult population.
Full autos on the rack at Sears inside of 5 years, just like my grandfathers could (and probably did) see pre-1934. Ah, the smell of Liberty is so sweet!
Uh, no they aren't. They are the armed forces, not the militia. The armed forces are governed by a different set of rules.
Title 10, Section 311 defines the militia. Paraphrasing, the organized militia is the National Guard and Naval Militia, and the unorganized militia is virtually every other male between 17 and 45 years of age.
Of course, that doesn't mean that we shouldn't have access to owning the same infantry weapons that the armed forces use.
...since it (and I'm paraphrasing) DIDN'T tend to ....
Today, I have been trying to explain that the term ARMS can and will include anything from bacteria to atomic weapons, if the citizens of the United States decide to fight.
I'm not, and didn't, dispute that. FYI, the Constitution also has a clause in Article 1, Section 8 (powers of Congress) that gives the Congress power to issue Letters of Marque and Reprisal. These are a license to be a pirate, a privateer, against the naval forces of a nation hostile to us. Actions like this happened frequently during the Revolution (which the drafters and ratifiers of the 2nd Amendment knew about, and likely participated in). Such Letters were issued in the War of 1812.
OK, so you're a patriotic ship owner in 1812, and you want to help your country. What are you going to do, ram the HMS ARROGANT LIMEY? No, not quite - you're going to use cannon against it. Cannon that YOU OWN.
End of story. Arms are, as you've stated, far more than just firearms.
That’s exactly what the Founding Fathers enacted via the Militia Act of 1792, promptly after passing the 2nd Amendment: registration WAS required, but it was designed purely to let the gov’t know who was available for service, and what equipment they would bring, so suitable plans could be made for contingencies.
Today, it is manifest as the Selective Service System: you sign up as an eligible-for-draft 17-year-old, but the assumption is that they’ll have suitable equipment to give you when you show up. I’m not so sure ... with the Congressionally-mandated militia age being 17-45, and me at 40, if I’m called up I’m assuming there won’t be any suitable equipment available, so I’m planning to bring my own. Ok, so I probably won’t be called up by Uncle Sam - but immediate short-notice circumstances might dictate the same need, and surely nobody would be equipping me then.
That is the U.S. CODE, but NOT in the Constitution...
Nice try, but the people define the terms.
I don't know if this means anything, but maybe the DC Circuit Court isn't where a case like you propose would end up. The BATFE has been moving around. They're now in Chicago, Atlanta, and West Virginia. Form 1s go to Chicago. Form 4s go to Georgia. Forms are processed in West Virginia after the checks cash.
"... So, here you'll have Mr. Squeaky Clean, who the feds think is fine and dandy to own a pre-ban, but the same guy can't own a virtually identical gun made in the same factory only 2 days later. This defies ANY strict scrutiny argument and, in fact, defies ANY rational reasoning."
I like the cut of your jib, sirrah, but I'm also wondering if Kennedy's statement “Miller may be deficient” isn't more ominous than welcoming. He plainly noted a potential for a decoupling of the 'militia' phrase from 'the people' phrase and asked if there were two rights there or just one. He might have it in mind that Miller didn't have recourse to a defense under the Second Amendment because he wasn't in 'the militia', never mind how short or long his shotgun was.
This could end up as a split decision: The people have rights to civilian weapons, the 'militia' has rights to militia weapons like your post-'86 M16.
Anyway, you may be perfectly correct, but I don't think anyone is sure what Kennedy thinks about Miller and what he meant by what he said.
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