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Gun rights go to court
Waco Tribune-Herald ^ | March 21, 2008 | Rowland Nethaway

Posted on 03/22/2008 12:02:27 AM PDT by neverdem

The U.S. Supreme Court should allow Dick Heller to keep a handgun in his home.

Dick Anthony Heller is a 66-year-old security guard who carries a handgun to protect the employees and property at the federal building where he works in Washington, D.C.

Because Heller also is a resident of the District of Columbia, he is prohibited from having a handgun in his home for self-protection.

Heller sued to overturn the city of Washington’s 1976 gun-control law that also requires all rifles or shotguns in D.C. homes to be disassembled or kept under trigger lock.

Heller sued claiming that the D.C. law violated his Second Amendment rights.

That amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The meaning of those 27 words, including how they are punctuated, has been argued, debated, cussed and discussed since the Bill of Rights was ratified on Dec. 15, 1791.

Actually, the wording of the Second Amendment was controversial and often changed from the time that founding father and leading Federalist James Madison proposed this compromise provision years earlier.

Struck down city gun law

To the surprise of many observers, Heller won his lawsuit before the U.S. Court of Appeals for the District of Columbia Circuit when that court struck down the city’s gun law. Previous decisions of a similar nature around the country had gone the other way.

Now it is up to the U.S. Supreme Court to decide whether Heller has a constitutional right to keep a handgun in his home, located only a mile away from the court.

No one knows what the justices will rule when the decision is announced a few months from now, but Justice Anthony M. Kennedy, who now is watched as the deciding swing vote on the divided court, appeared to side with Heller’s argument in saying, “In my view, there’s a general right to bear arms quite without reference to the militia either way.”

Over the years, gun control advocates, gun owner groups and constitutional scholars have debated the meaning of “militia,” “the People,” “keep and bear arms,” “bear arms,” “shall not be infringed” and the significance of the two clauses along with the many changes the amendment went through before it was finally adopted.

During the arguments involving Heller’s case, Justices Antonin Scalia and Samuel Alito Jr. appeared to support Kennedy’s assertion that there is a general right for the people to own guns aside from the reference to a well-regulated militia.

Although Justice Clarence Thomas didn’t tip his hand during the Heller arguments, he has previously indicated support for the idea that the Second Amendment protects individual rights to own guns.

Even if the court does decide that the amendment protects the individual rights of gun ownership, lawyers in support of the D.C. law still hope to prevail on the argument that the city has the right to ban “uniquely dangerous” weapons such as handguns that are used in much gun violence and criminal activity and can easily be taken into schools, buses and other public gathering places.

The 1934 National Firearms Act attempted to control such “uniquely dangerous” firearms as automatic-fire machine guns, short-barreled shotguns and rifles, silencers and other “gadget-type” firearms and accessories.

If the D.C. city council can decide its own definition of “uniquely dangerous” weapons, so could every other city and state, which potentially could restrict gun ownership to the point that all guns could be rendered useless for personal defense.

“If you have time, when you hear somebody crawling in your — your bedroom window, you can run to your gun, unlock it, load it and then fire?” Scalia asked the D.C. lawyers.

In essence, the D.C. law prevents citizens from using guns for self-defense. This is fine with many gun-control advocates.

Personally, I think Heller should be able to keep a handgun in his home for his protection.

Rowland Nethaway’s column appears Wednes- day and Friday. E-mail: RNethaway@wacotrib .com


TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; Politics/Elections
KEYWORDS: banglist; dc; heller; parker; scotus
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No one knows what the justices will rule when the decision is announced a few months from now, but Justice Anthony M. Kennedy, who now is watched as the deciding swing vote on the divided court, appeared to side with Heller’s argument in saying, “In my view, there’s a general right to bear arms quite without reference to the militia either way.”

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf

JUSTICE KENNEDY: One of the concerns, Mr. Dellinger, of the framers, was not to establish a practice of amending the Constitution and its important provisions, and it seems to me that there is an interpretation of the Second Amendment differing from that of the district court and in Miller and not advanced particularly in the red brief, but that conforms the two clauses and in effect delinks them. The first clause I submit can be read consistently with the purpose I've indicated of simply reaffirming the existence and the importance of the militia clause. Those were very important clauses. As you've indicated, they're in Article I and Article II. And so in effect the amendment says we reaffirm the right to have a militia, we've established it, but in addition, there is a right to bear arms. Can you comment on that?

MR. DELLINGER: Yes.

JUSTICE KENNEDY: And this makes, it does --I think you're write right in the brief to say that the preface shouldn't be extraneous. This means it's not extraneous. The Constitution reaffirms the rights, reaffirm several principles: The right of the people to peaceably assemble, the right to be secure in their homes, the Tenth Amendment reaffirms the rights, and this is simply a reaffirmation of the militia clause.

MR. DELLINGER: Justice Kennedy, I think any interpretation that delinks the two clauses as if they were dealing with related but nonetheless different subject matters has that to count against it, and what you don't see in the debates over the Second Amendment are references to, in those debates, the use of weapons for personal purposes. What you see is the clause that, that literally transposes to this: "Because a well regulated militia is necessary to the security of a free State, the right of the people to keep and bear arms shall not be" --

JUSTICE KENNEDY: Well the subject is "arms" in both clauses, as I've suggested is the common subject, and they're closely related. (PP. 5 - 6)

JUSTICE KENNEDY: Well, do you think the clause, the second clause, the operative clause, is related to something other than the militia?

MR. DELLINGER: No. I think --

JUSTICE KENNEDY: All right. Well, then --

MR. DELLINGER: -- the second clause, the phrase "keep and bear arms," when "bear arms" is referred to -- is referred to in a military context, that is so that even if you left aside --

JUSTICE KENNEDY: It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that? (P. 8)

JUSTICE KENNEDY: So it was supplementing it. And my question is, the question before us, is how and to what extent did it supplement it. And in my view it supplemented it by saying there's a general right to bear arms quite without reference to the militia either way. (P. 13)

JUSTICE KENNEDY: Well, there's no question that the English struggled with how to work this. You couldn't conceal a gun and you also couldn't carry it, but yet you had a right to have it. (P. 16)

JUSTICE KENNEDY: I agree that Miller is consistent with what you've just said, but it seems to me Miller, which kind of ends abruptly as an opinion writing anyway, is just insufficient to subscribe -- to describe the interests that must have been foremost in the framers' minds when they were concerned about guns being taken away from the people who needed them for their defense. (PP. 30 - 31)

JUSTICE KENNEDY: Or would you say like protecting yourself against intruders in the home? (P. 41)

JUSTICE KENNEDY: But you were about to tell us before the course of the questioning began about the other purposes that the amendment served. I'm -- I want to know whether or not, in your view, the operative clause of the amendment protects, or was designed to protect in an earlier time, the settler in the wilderness and his right to have a gun against some conceivable Federal enactment which would prohibit him from having any guns? (PP. 57 - 58)

JUSTICE KENNEDY: It seems to me that Miller, as we're discussing it now, and the whole idea that the militia clause has a major effect in interpreting the operative clause is both overinclusive and underinclusive. I would have to agree with Justice Ginsburg that a machine gun is probably more related to the militia now than a pistol is. But that -- that seems to me to be allowing the militia clause to make no sense out of the operative clause in present-day circumstances.

MR. GURA: Your Honor, even within the militia understanding, the understanding of the militia was always that people would bring whatever they had with them in civilian life. So if a machine gun, even though it may be a wonderful --

JUSTICE KENNEDY: My point is: Why is that of any real relevance to the situation that faces the homeowner today?

MR. GURA: It's only of relevance if the Court wishes to continue reading the militia clause as informing the type of weapon which is protected.

JUSTICE KENNEDY: Well, you're being faithful to Miller. I suggest that Miller may be deficient. (P. 62)

JUSTICE KENNEDY: I -- at least to me the question is, what would be the constitutional basis for insisting on Justice Scalia's suggestion that you need a number of guns? You have argued, it seems to me, that the District or a government could prohibit just what he said, unless you needed one to take to the militia.

MR. DELLINGER: I do not know why that would pass the reasonableness scrutiny, but this law would because a powerful, overwhelming case could be made that you're eliminating the one type of weapon -- this law is -- is designed only for the weapon that is concealable and movable, that can be taken into schools and onto the Metro, can be easily stolen and transmitted among --

JUSTICE KENNEDY: I'm asking about the constitutional standard you apply to a hypothetical statute which would prohibit the guns Justice Scalia described. What is your position as to the validity of such a hypothetical law? (PP. 88 - 89)

IMHO, all of Kennedy's comments and questions pertained to an individual's rights.

1 posted on 03/22/2008 12:02:30 AM PDT by neverdem
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To: neverdem

There’s been a boatload of these in the last week.


2 posted on 03/22/2008 12:05:42 AM PDT by wastedyears (More Maiden coming up in a few months!)
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To: neverdem

Are the justice’s clerks able to influence the justice’s formal decision by the time it is issued, if so, what is the analysis of the clerks?


3 posted on 03/22/2008 12:08:05 AM PDT by ansel12 (Ronald W. Reagan and William F. Buckley Jr., both were U.S. Army veterans.)
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To: wastedyears
There’s been a boatload of these in the last week.

I wanted a thread for all of Kennedy's questions and comments. He had a reputation for upholding individual rights. That seems to have been his only concern.

4 posted on 03/22/2008 12:14:38 AM PDT by neverdem
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To: neverdem

I agree. The line of questioning he used seemed to indicate that he would support the individual right, unless he was grandstanding of trying a flank maneuver.


5 posted on 03/22/2008 12:16:33 AM PDT by IllumiNaughtyByNature (Senator McCain, what did GWB promise you back in 2000? And you believed him? BWAHAAAAA!)
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To: ansel12
Are the justice’s clerks able to influence the justice’s formal decision by the time it is issued, if so, what is the analysis of the clerks?

I have no idea.

6 posted on 03/22/2008 12:17:51 AM PDT by neverdem
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To: neverdem

Te left is dying to take legal guns away and to leave illegal guns in the hands of criminals and lawbreakers.


7 posted on 03/22/2008 4:16:54 AM PDT by Leftism is Mentally Deranged (you know it's true)
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To: neverdem
"IMHO, all of Kennedy's comments and questions pertained to an individual's rights."

Yep. And the Miller definition of "arms" is out, replaced by "in common (civilian) use" and "a direct lineal descendant".

As evidenced by Scalia's comment, we see that "in common civilian use" means whatever guns the U.S. Supreme Court have allowed civilians to own, and has nothing to do with what the military uses.

This wasn't the U.S. Supreme Court -- it was the King and Queen of Hearts' court with Dellinger as Alice. Decades ago, the same court banned guns because they were dangerous, thereby decreasing the use of these weapons. Now the court declares that since the guns aren't in common use, they're not protected by the second amendment.

Riddle me this: Hadguns are banned in DC. Which means they are not in common use. Then why would the second amendment protect them (in DC)?

8 posted on 03/22/2008 5:42:15 AM PDT by robertpaulsen
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To: Leftism is Mentally Deranged
Te left is dying to take legal guns away and to leave illegal guns in the hands of criminals and lawbreakers.

A really awful movie that provides a terrific illustration of your point is "Demolition Man" with Sly Stalone and Wesley Snipes. It was so bad that even Sandra Bullock couldn't save it... She was just goofy in her role.

But it made a very important point. That the government NEEDS extreme criminals to get "the people" to BEG to be controlled.

Mark

9 posted on 03/22/2008 7:06:28 AM PDT by MarkL
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To: robertpaulsen
Riddle me this: Hadguns are banned in DC. Which means they are not in common use. Then why would the second amendment protect them (in DC)?

The police are civilians and use them every day. That is common use isn't it?

10 posted on 03/22/2008 7:39:08 AM PDT by beltfed308 (Heller: The defining moment of our Republic)
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To: beltfed308

And I also forgot private security guards just like Mr. Heller.


11 posted on 03/22/2008 8:07:26 AM PDT by beltfed308 (Heller: The defining moment of our Republic)
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To: neverdem
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The leftist gun grabbers (hi Rudy) like putting emphasis on where the commas are placed to make their (cough) argument that its a 'collective' right. Well okay, let's play that game, BUT, with some input from real Constitutional experts.

Case closed!

oops, almost forgot... You, yeah you 'public officers', like Di-Fi - George Mason posits that you have NO RIGHT to own a gun, hand yours in pronto wench. You have till midnight to disarm!

[I have guns in my nightstand because a COP wont fit.]

12 posted on 03/22/2008 8:31:29 AM PDT by Condor51 (If my nose was runnin' money, honey I'd blow it all on you.)
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To: robertpaulsen
Riddle me this: Hadguns are banned in DC. Which means they are not in common use. Then why would the second amendment protect them (in DC)?

Hadguns are not in common use. Handguns are in common use by the police, security guards and criminals.

In Haynes v U.S. (1968), the U.S. Supreme Court ruled that felons do not have to register illegally possessed guns, because the Fifth Amendment protects them against self-incrimination.

Justices Rule Police Do Not Have a Constitutional Duty to Protect Someone

Isn't it time for the law abiding citizens of D.C. to have as much rights as the criminals?

13 posted on 03/22/2008 9:56:44 AM PDT by neverdem
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To: neverdem

I guess the Riddler didn’t like our answers.


14 posted on 03/22/2008 10:36:59 AM PDT by beltfed308 (Heller: The defining moment of our Republic)
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To: robertpaulsen
robertpaulsen said: Yep. And the Miller definition of "arms" is out, replaced by "in common (civilian) use" and "a direct lineal descendant".

Just because Miller is "deficient", in attempting to make the right only a right to possess arms that are useful to a Militia, that is hardly an indication that such arms are now to be outside the protection of the amendment. Such a decision by the Heller Court would be just as "deficient" as the Miller decision.

Even the "in common use" concept doesn't have to mean "in common non-military use".

I haven't yet had an opportunity to read Silberman's decision. Does it claim that Miller is now inoperative and that militia weapons are not protected?

The fact that a rifle or a handgun is a "direct lineal descendant" also does not mean that use of such a "test", if one could actually construct a real test of such a relationship, automatically excludes arms which might pass some other test.

I think that the Supreme Court should be able to handle the idea that multiple tests of the suitability of "arms" might be reasonable, given that the Amendment only says "arms", not "firearms", not "weapons of the infantry soldier", and not "arms that are entirely insufficient to permit the people to hold the government and its standing military accountable".

15 posted on 03/22/2008 10:59:55 AM PDT by William Tell (RKBA for California (rkba.members.sonic.net) - Volunteer by contacting Dave at rkba@sonic.net)
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To: wardaddy; Joe Brower; Cannoneer No. 4; Criminal Number 18F; Dan from Michigan; Eaker; Jeff Head; ...
Comment# 1 has what Kennedy said during the argument in Heller, and comment# 13 has important facts about the duty of police and criminal rights.

Iranian Entanglements McCain was right!

Getting Poverty Wrong - On the presidential campaign trail, it’s almost as if the 1960s never happened.

"Iraq Vets for Congress" - A chance to put some honor and patriotism back in Congress Heads Up NY and Veterans!

From time to time, I’ll ping on noteworthy articles about politics, foreign and military affairs. FReepmail me if you want on or off my list.

16 posted on 03/22/2008 11:03:29 AM PDT by neverdem
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To: beltfed308; neverdem

I’d offer the following piece of advice: Do Not Feed the Troll!


17 posted on 03/22/2008 12:50:32 PM PDT by FreedomPoster (<===Typical White American)
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To: FreedomPoster
I’d offer the following piece of advice: Do Not Feed the Troll!

He stifled himself. I wanted a thread to link those SCOTUS decisions in comment# 13 anyway.

18 posted on 03/22/2008 3:42:29 PM PDT by neverdem
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To: robertpaulsen

Thank you for summarizing Supreme Court prefidity.


19 posted on 03/22/2008 4:53:32 PM PDT by rmlew (Grievance politics is a mental illness)
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To: Leftism is Mentally Deranged
Te left is dying to take legal guns away and to leave illegal guns in the hands of criminals and lawbreakers.

Yes. Part of the Communist Manifesto.... and Hitler's Germany.

20 posted on 03/22/2008 4:53:45 PM PDT by NotJustAnotherPrettyFace
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To: William Tell
"Even the "in common use" concept doesn't have to mean "in common non-military use"."

No, it doesn't have to. But it does, at least according to Scalia. What did he say about machine guns again?

"JUSTICE SCALIA: Mr. Dellinger, let's come back to your description of the opinion below as allowing armor-piercing bullets and machine guns. I didn't read it that way. I thought the opinion below said it had to be the kind of weapon that was common for the people --"

"MR. DELLINGER: That is --"

"JUSTICE SCALIA: -- that is common for the people to have. And I don't know -- I don't know that a lot of people have machine guns or armor-piercing bullets. I think that's quite unusual. But having a pistol is not unusual."

"MR. DELLINGER: The number of machine guns, I believe, is in excess of a hundred thousand that are out there now, that are --"

"JUSTICE SCALIA: How many people in the country?"

"MR. DELLINGER: Well, there are 300 million, but whether that's common or not, but the --"

"JUSTICE SCALIA: I don't think it's common."

"MR. DELLINGER: But it's the -- the court protects weapons suitable for military use that are lineal descendants. I don't know why ...."

Depite the number of machine guns, assault rifles, and full auto weapons in the hands of the military and police forces, Scalia doesn't think they're common. Put it this way, when figuring the over-under on a future court case involving a machine gun, don't count on his vote.

Buy hey! Look on the bright side! Scalia will likely vote for an individual right (with restrictions, of course). And when the tyrannical federal government rises, we'll all be ready for them with our "common use" pistols and single-shot 22's. What you call "a militia".

21 posted on 03/23/2008 5:03:05 AM PDT by robertpaulsen
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To: robertpaulsen
Riddle me this: Hadguns are banned in DC. Which means they are not in common use. Then why would the second amendment protect them (in DC)?

St.George Tucker covered this topic in his 1803 Edition of Blackstone's Commentaries to wit:

A well regulated militia being necessary to the security of a free state, the right of the people to keep, and bear arms, shall not be infringed.

This may be considered as the true palladium of liberty . . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms, is under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.

In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

22 posted on 03/23/2008 6:56:25 AM PDT by Copernicus (California Grandmother view on Gun Control http://www.youtube.com/view_play_list?p=7CCB40F421ED4819)
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To: Copernicus
I didn't ask for a treatise on self defense. I wanted to know why, specifically, the right to keep a bear a handgun should be protected, given that it is not a "common use" weapon in DC.
23 posted on 03/23/2008 7:26:33 AM PDT by robertpaulsen
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To: William Tell
"Does it claim that Miller is now inoperative and that militia weapons are not protected?"

Is not that militia weapons are not protected. They are. It's just that the definition of those protected militia weapons has been watered down. From Silberman's decision:

"We take the outfitting requirements of the second Militia Act to list precisely those weapons that would have satisfied the two prongs of the Miller arms test. They bore a “reasonable relationship to the preservation or efficiency of a well regulated militia,” because they were the very arms needed for militia service. And by the terms of the Act, they were to be personally owned and “of the kind in common use at the time.”

Well, this was fine in 1792 -- personal weapons were militia weapons. For the most part, they were indistinguishable.

Today, however, arms which bear a “reasonable relationship to the preservation or efficiency of a well regulated militia” and arms that are "of the kind in common use” are, for all intents and purposes, mutually exclusive.

If future courts are going to submit arms to this Miller "two-prong" test, it will severely, and I mean severely, limit the arms that would apply. Just given the limited practicality (and high price) of some militia-suitable weapons (eg., a .50 bmg rifle), it won't be "in common civilian use" and therefore not protected.

Unless the court changes the definition of "common use" to "in common use by the average militia member (military soldier)", we are royally screwed. Granted, this list would include a weapon like the M249 SAW, but reasonable regulations could handle those cases. As it looks like now, the M249 is not even protected. As weapons become more sophisticated, the civilian "militia" will fall further and further behind the federal standing army -- just the opposite of what the Founders intended.

24 posted on 03/23/2008 8:17:33 AM PDT by robertpaulsen
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To: robertpaulsen
I didn't ask for a treatise on self defense.

Sorry to disappoint, a treatise is exactly what you will get and need.

Over the past century there has been too much "deconstruction" of basic precepts by all the usual suspects to the point where the most inane arguments are accepted without protest by all the people who should know better.

Surely you remember the debate about "teenagers who never use their turn signals" so the only reason a teenager (obey the law) would use a turn signal is to insidously entrap a policeman on videotape into threatening to make up charges against said teenager?

Or perhaps the debate where 142 of the best and brightest contemporaty minds undergoing college level education should turn off said minds and hsyterically flee simulteaneously en masse through two or three available lecture hall openings rather than use their minds to disarm and disable a lone gunman who could not possibly control 142 individuals without their individual consent and assistance.

There has been way too much compartmentalization and hairsplitting tolerated in recent public discourse and the only way to prevail is to strike at root causes.

If you want to pick fly turds out of black pepper for your entire life feel free, just do not expect We the People to join you.

25 posted on 03/23/2008 11:06:31 AM PDT by Copernicus (California Grandmother view on Gun Control http://www.youtube.com/view_play_list?p=7CCB40F421ED4819)
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To: robertpaulsen

Sir, I have a challenge for you -

Rent a boat. Sail it up the Anacostia River in DC, on a hot, balmy night. Anchor at the north end of the river, and be sure to sleep below the waterline.

In the morning, get back to me about how “handguns are not in common use” in DC.

If you live.


26 posted on 03/23/2008 11:21:03 AM PDT by patton (cuiquam in sua arte credendum)
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To: robertpaulsen

Oh, and from where your boat is anchored on the Anacostia, you are within a mile of the USSC and the US Capitol Bldg, as you dodge bullets to save your life.

What do you mean, not in common use?


27 posted on 03/23/2008 11:33:52 AM PDT by patton (cuiquam in sua arte credendum)
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To: patton
"What do you mean, not in common use?"

I'm sure the distinguished U.S. Supreme Court Justice was referring to LEGAL use.

28 posted on 03/23/2008 11:40:52 AM PDT by robertpaulsen
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To: robertpaulsen

You are arguing that the USSC believes that the law is never broken?

That is an odd thing to assert.


29 posted on 03/23/2008 11:53:33 AM PDT by patton (cuiquam in sua arte credendum)
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To: robertpaulsen
robertpaulsen said: Unless the court changes the definition of "common use" to "in common use by the average militia member (military soldier)", we are royally screwed.

The one statement that troubles me from the Parker decision was to the effect that the word "arms" is so indefinite that it must look to the prefatory language for its definition. Given that the protected common-law right includes self-defense, then "arms" must also include items which are particularly suited to self-defense.

Your concern regarding "in common use", I think, is not a great concern.

The Parker court was required to address the objections of DC to the effect that Miller applied. Since it was possible to establish, through the requirements of early militia laws that pistols were required of a subset of the militia, then one must presume that the pistols were in common use at that time, and the court reasonably included the lineal descendants as qualifying under Miller. The Parker court made no further attempt to determine whether "common use" or "linal descendancy" were absolute requirements. Whether a machine gun is a lineal descendant of a rifle is of little concern, since no Court would ever claim that a state-armed militia could not have them.

This discussion of "common use" and usefulness to a militia is aimed squarely at not having to attack Miller, while still recognizing Heller's protected right.

In keeping with the Supreme Court's desire to make a narrow ruling, I would expect that they can afford to say little about whether the holding in Miller must be addressed. Only the fact that Miller and Layton didn't have to be members of a militia needs to be addressed. The scope of "arms", which clearly includes pistols, need not be further addressed by the Heller Court.

Ginsberg can be lulled back to sleep and provided a little cover by the claim that "in common use" can be used to prohibit arms suitable to a militia. But I think she knows better.

30 posted on 03/23/2008 1:46:22 PM PDT by William Tell (RKBA for California (rkba.members.sonic.net) - Volunteer by contacting Dave at rkba@sonic.net)
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To: robertpaulsen
robertpaulsen said: And when the tyrannical federal government rises, we'll all be ready for them with our "common use" pistols and single-shot 22's.

That tyrannical federal government has already risen. Nothing that the Heller Court is going to decide will make the situation worse. As you have so helpfully pointed out in the past, most federal court districts have ruled that there is no individual right to keep and bear arms. Attempts to make the situation better are incapable of making them worse given how the majority of lower courts have ruled.

Fortunately, the lower courts have over-stepped considerably and read into Miller things which are not there and which the present Court is unlikely to let stand. The understanding of Miller that is "in common use" is flawed by the collective-rights nonsense and there is every reason to believe that the Heller Court will set this right.

31 posted on 03/23/2008 1:54:01 PM PDT by William Tell (RKBA for California (rkba.members.sonic.net) - Volunteer by contacting Dave at rkba@sonic.net)
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To: William Tell
Mr. Paulsen's riddle is a nearly perfect example of circular reasoning hence fundamentally flawed as summarized:

Because handguns have been banned they can be banned and should be banned.

Perhaps I missed it but has Mr. Paulsen ever done anything but propose conundrums, ask questions and spread old school Fear,Uncertainty,Confusion and Doubt about everything related to the 2nd Amendment?

You have followed his comments much more closely than I.

Best regards,

32 posted on 03/23/2008 3:23:37 PM PDT by Copernicus (California Grandmother view on Gun Control http://www.youtube.com/view_play_list?p=7CCB40F421ED4819)
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To: Copernicus
Copernicus said: "You have followed his comments much more closely than I."

When it comes to gun rights, I refuse to permit falsehoods, inaccuracies, or muddle-headed thinking to go unchallenged on FR. rp is quite knowledgeable about case law, but unfortunately that includes, in the case of gun rights, a preponderance of flawed cases, leading to many very untenable positions.

A prime example is the position that we must look only to our individual states for protection of the same right to keep and bear arms that is protected by the Second Amendment. There is absolutely no reason to single out the right to keep and bear arms, among all the inalienable rights of man, as having some character that justifies lack of protection by the federal government. This would seem to be especially true, given that in some states, the chief infringer of gun rights is that same federal government.

In the big scheme of things, a single poster on FR is not going to make the key difference. One of the main contributors to the present situation is Lawrence Tribe, the liberal legal academic. As a liberal who doesn't like guns, he lends great credibility to the idea that the Supreme Court must make adjustments to what has become an untenable claim by lower courts that no individual right exists.

Once the individual right is recognized, it will become much more difficult to use a case like Miller to permit such widespread and pernicious infringement. And once the federal government loses its ability to infringe, it will lose its appetite to permit state infringement.

The other element working strongly in our favor is the degree to which voters nationwide have expressed their displeasure with gun control. Democrats know it and are adjusting to it, though slowly and erratically.

We'll probably see soon how Hussein and McCain deal with gun rights. If the Heller decision goes as I hope, Obama and McCain will both have to make clear their support of lack of support for the decision.

33 posted on 03/23/2008 4:07:57 PM PDT by William Tell (RKBA for California (rkba.members.sonic.net) - Volunteer by contacting Dave at rkba@sonic.net)
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To: William Tell
rp is quite knowledgeable about case law, but unfortunately that includes, in the case of gun rights, a preponderance of flawed cases, leading to many very untenable positions.

Many thanks. Well said.

Best regards,

34 posted on 03/23/2008 4:29:03 PM PDT by Copernicus (California Grandmother view on Gun Control http://www.youtube.com/view_play_list?p=7CCB40F421ED4819)
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To: William Tell
"Given that the protected common-law right includes self-defense, then "arms" must also include items which are particularly suited to self-defense"

Stevens didn't think there was connection between the second amendment and self defense. You do?

"JUSTICE STEVENS: How do you explain the fact that you include self-defense, but only two States, Pennsylvania and Vermont, did refer to self-defense as a permissible justification and all of the others referred to common defense or defense of the State, and in the Articles of Confederation and the Constitution itself there is no reference to self-defense?"

As a matter of fact, Stevens went on and on and Gura had no effective reply.

"The Parker court made no further attempt to determine whether "common use" or "linal descendancy" were absolute requirements."

The Parker court applied a "two-prong Miller test" -- 1) a “reasonable relationship to the preservation or efficiency of a well regulated militia” and, 2) arms that are "of the kind in common use”. If that's not an absolute requirement, why refer to it and why use it?

"The scope of "arms", which clearly includes pistols, need not be further addressed by the Heller Court."

No, it need not. But the next "Gura" who appears before the U.S. Supreme Court to defend his client who possessed a machine gun has got his work cut out for him, since the original Gura effectively took away any argument he might use.

35 posted on 03/23/2008 4:46:07 PM PDT by robertpaulsen
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To: robertpaulsen
robertpaulsen said: "If that's not an absolute requirement, why refer to it and why use it? "

Because it is an established principle in law that you don't argue to throw out a precedent like Miller if you don't have to. By showing that pistols are militia weapons and were in common use at the time, the Parker Court completely side-stepped any issues with Miller. The Supreme Court doesn't even have to decide that there is a right to keep and bear arms for self-defense. They only need to agree with Miller that the people, including Heller, have the right to keep and bear arms that have some utility to a militia.

Though you never agreed, many briefs in Heller point out that the Surpeme Court in Miller completely ignored the prosecution's argument that only militia members are protected. Had that really been the case, then the Supreme Court in Miller would never have had a need to address short-barreled shotguns or militia-usefulness. They could have simply stated that the Second Amendment only protects members of a militia.

36 posted on 03/23/2008 5:29:40 PM PDT by William Tell (RKBA for California (rkba.members.sonic.net) - Volunteer by contacting Dave at rkba@sonic.net)
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To: robertpaulsen
robertpaulsen said: "As a matter of fact, Stevens went on and on and Gura had no effective reply."

And yet Kalifornia explicitly states that there is a right to self-defense. But somehow I imagine that that is still insufficient. To you, the right to self-defense without a mention of arms is meaningless. And the right to keep and bear arms, without a mention of self-defense is also meaningless.

If the Supreme Court rules in Heller that there is no fundamental, individual right to self-defense, then we have wasted our time in pushing Heller. But, IF THERE IS SUCH A RIGHT, then no sane person would claim that the right to keep and bear arms does not have as a purpose to permit the exercise of such a right.

As I pointed out before, perhaps in a different thread, "militia" is simply the plural of "self-defense". There is little that is contained in one that is not also contained in the other.

37 posted on 03/23/2008 5:35:10 PM PDT by William Tell (RKBA for California (rkba.members.sonic.net) - Volunteer by contacting Dave at rkba@sonic.net)
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To: William Tell
IIRC, you wrote that you wanted to read Parker. Let me know if you want the pdf version.

Parker v. Washington D.C. in HTML courtesy of zeugma.

Kennedy seems to say Miller is insufficient, aka "deficient," as he suggested, for the purpose of individual, self defense versus the militia, a common defense.

The Miller decision can still be useful for other infringements from the states and the feds, IMHO.

38 posted on 03/23/2008 7:15:47 PM PDT by neverdem
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To: neverdem
neverdem said: "IIRC, you wrote that you wanted to read Parker. "

Thanks for the link. I did track it down and read it this morning, though my eyes glazed over when I got to the dissent, which I skipped.

The deficiencies in Miller are certainly creating a mess in the briefs (if you'll pardon the expresssion) because the pro-gun side is in the position of having to make the best argument they can that's consistent with Miller, despite having even stronger arguments if not for Miller.

Gura had to jump off a logical cliff to keep from affirming Ginsberg's notion that machineguns are going to be protected.

We'll know the Supreme Court has done the right thing if we soon witness some anti-gun state governor sending the state police to block the doorways of gun shops so that people can't buy machine guns. A similar thing happened when "separate but equal" was stricken and one can hardly imagine what our nation would be like if that injustice had not been stopped.

39 posted on 03/23/2008 7:43:13 PM PDT by William Tell (RKBA for California (rkba.members.sonic.net) - Volunteer by contacting Dave at rkba@sonic.net)
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To: William Tell
"They could have simply stated that the Second Amendment only protects members of a militia."

They weren't asked that question. Why would they answer it?

The question before them was if the tax stamp requirement on a sawed-off shotgun violated the second amendment. THAT was the law that was violated.

If the law stated that only militia members were allowed to transport a sawed-off shotguns interstate, then certainly Mr. Miller's militia status would have been relevant. But anyone was allowed to transport a sawed-off shotgun interstate -- provided they had a tax stamp affixed. You keep making this hypothetical the issue when it wasn't.

"By showing that pistols are militia weapons and were in common use at the time, the Parker Court completely side-stepped any issues with Miller."

Side-stepped? They waded in!

The Parker court examined Miller, came up with a "two-prong test", and faithfully applied it to their case. The U.S. Supreme Court appears to have accepted this two-prong test, and added a third -- lineal decendancy.

"They only need to agree with Miller that the people, including Heller, have the right to keep and bear arms that have some utility to a militia...."

AND .... AND .... are in common civilian use. That excludes a whole bunch of weapons -- .50 bmg rifles, select fire M-16's and M4's, machine guns, etc.

40 posted on 03/24/2008 7:50:17 AM PDT by robertpaulsen
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To: William Tell
"To you, the right to self-defense without a mention of arms is meaningless"

As I have pointed out ad nauseum, there is no hard link between the two. Many individuals have the right to self defense, but do no have the right to self defense with a weapon. Prisoners, felons, illegal aliens, small children, the insane, foreign tourists, etc., ALL have the God-given inalienable right to self defense. Just not with a weapon.

Self defense with a weapon is a right that WE protect -- WE decide who may use a weapon, what weapon may be used, and under what circumstances it may be used. And that includes everything from a pointed stick to a machine gun.

"And the right to keep and bear arms, without a mention of self-defense is also meaningless."

When the Founders were discussing the second amendment, there was no mention of self defense. Justice Stevens saw none. If you have such a reference I'd like to see it.

"If the Supreme Court rules in Heller that there is no fundamental, individual right to self-defense, then we have wasted our time in pushing Heller."

There IS a fundamental, individual right to self defense. Not with a weapon, of course.

But if you're saying that the only victory you will accept is if the U.S. Supreme Court rules the second amendment protects a fundamental, individual right to self defense with any weapon you choose ... well, prepare to be disappointed.

41 posted on 03/24/2008 8:14:01 AM PDT by robertpaulsen
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To: robertpaulsen
robertpaulsen said: "The U.S. Supreme Court appears to have accepted this two-prong test, and added a third -- lineal decendancy."

You're getting far, far ahead of yourself and the Court. No decision has been rendered yet. And the Court has to become quite skeptical of adding more and more strictures to the word "arms" with no justification to do so.

And your statement that the Miller Court wasn't asked about a requirement for militia-membership is false. The prosecution's argument summary clearly contained the statement that only members of a militia should be protected. The Miller Court was free to establish that as the standard if they wished.

We have been over this ground before. You continue to state falsely that the NFA 34 is either Constitutional or unConstitutional without regard to the status of the person being affected by it. That is simply not true.

The Court is perfectly capable of permitting the enforcement of the NFA 34 with respect to some defendants and not others, just as in Miller they were able to permit prosecution with respect to some arms with no question whatever regarding the other arms included in the law.

42 posted on 03/24/2008 9:37:06 AM PDT by William Tell (RKBA for California (rkba.members.sonic.net) - Volunteer by contacting Dave at rkba@sonic.net)
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To: robertpaulsen
robertpaulsen said: "There IS a fundamental, individual right to self defense. Not with a weapon, of course."

And there is a fundamental, individual right to free speech. But not with an internet, of course.

You ought to sense the barrenness of your argument based on who it is who agrees with you.

43 posted on 03/24/2008 9:40:56 AM PDT by William Tell (RKBA for California (rkba.members.sonic.net) - Volunteer by contacting Dave at rkba@sonic.net)
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To: neverdem
The meaning of those 27 words, including how they are punctuated, has been argued, debated, cussed and discussed since the Bill of Rights was ratified on Dec. 15, 1791.

Except in the courts.

Most of the gun control laws we live with were first passed in 1968.

44 posted on 03/24/2008 9:46:14 AM PDT by <1/1,000,000th%
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To: robertpaulsen
robertpaulsen said: "But if you're saying that the only victory you will accept is if the U.S. Supreme Court rules the second amendment protects a fundamental, individual right to self defense with any weapon you choose ... well, prepare to be disappointed."

Nonsense. There are still elements of the right that may have to be recognized, despite what I expect from Heller.

Why don't you entertain us with what the Founders would have to have written to accomplish what you describe as a possible victory?

We now know from your arguments that, "the right of the people to keep and bear arms", includes only people who were the militia and that "arms" includes only arms that the government decides are suitable for a militia".

How about this: "The right of all persons, except infants and prisoners or mental patients under custody, have a right to keep, bear, own, purchase, manufacture, sell, and trade arms of all kinds regardless of lethality or lack of specificity of target".

That's pretty airtight isn't it?

45 posted on 03/24/2008 10:24:17 AM PDT by William Tell (RKBA for California (rkba.members.sonic.net) - Volunteer by contacting Dave at rkba@sonic.net)
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To: robertpaulsen
Scalia is a smart person. He knows the numbers as well as anyone. He doesn't want to spook anyone and leave himself in a 4 person minority. It is all about getting to 5. It is a dangerous game when you try to have it all your way right away.

Get the landmark ruling, then chip away at the restrictions. When crime does not go up, people will be less concerned about the SCOTUS striking down these laws.

First things first though. If Scalia had said he read the lower court's opinion as allowing rocket launchers and machine guns then Breyer and the other lefties would have seized the moment to scare Kennedy. You don't want him to get spooked and back down.

46 posted on 03/24/2008 12:57:20 PM PDT by Clump (Your family may not be safe, but at least their library records will be.)
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To: William Tell
"You continue to state falsely that the NFA 34 is either Constitutional or unConstitutional without regard to the status of the person being affected by it. That is simply not true."

It IS true. The U.S. Supreme Court could have taken the case and ruled that the tax stamp was constitutional. Could they not have?

In that case, Mr. Miller was guilty whether or not he was a Militia member. If Mr. Miller had purchased the stamp, he could have avoided the whole mess, could he not have? Did Mr. Miller have to be a Militia member to purchase a stamp? No.

Do you not understand the case and what law Mr. Miller violated? Did you think he was arrested for carrying a weapon that was only allowed for Militia meembers? Did you think he was arrested for carrying an illegal weapon?

47 posted on 03/24/2008 1:40:34 PM PDT by robertpaulsen
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To: William Tell
"The right of all persons, except infants and prisoners or mental patients under custody, have a right to keep, bear, own, purchase, manufacture, sell, and trade arms of all kinds regardless of lethality or lack of specificity of target".

That would make an excellent state law, which is where a law like that belongs.

The second amendment, however, was meant to protect something entirely different: the preservation of an entity necessary to the security of a free state -- the Militia.

48 posted on 03/24/2008 1:53:27 PM PDT by robertpaulsen
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To: robertpaulsen
So would you agree that...
many individuals have the right to free speech, but do not have the right to free speech with a press? ALL have the God-given inalienable right to free speech. Just not with a press (the term broadly including pen, movable type, printer, modem, TV, radio, internet, etc.).

Free speech with mechanical assistance is a right that WE protect -- WE decide who may use a "press", what kind may be used, and under what circumstances it may be used. And that include everything from a pencil to satellite TV to blogging.


49 posted on 03/24/2008 2:03:32 PM PDT by ctdonath2 (The average piece of junk is more meaningful than our criticism designating it so. - Ratatouille)
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To: robertpaulsen
And when the tyrannical federal government rises, we'll all be ready for them

No, by your prolifically insisted definition, "we" won't be ready because "we" aren't the select few that the tyrranical federal government permitted into the militia and thus could be prohibited from owning anything.

50 posted on 03/24/2008 2:07:29 PM PDT by ctdonath2 (The average piece of junk is more meaningful than our criticism designating it so. - Ratatouille)
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