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GUNS AND JUDGES (Reinhard)
The Oregonian ^ | July 3, 2008 | David Reinhard

Posted on 07/03/2008 9:16:22 AM PDT by jazusamo

Judicial activism. Legislating from the bench. Ideological decision-making by judges.

No sooner had the Supreme Court announced its decision in District of Columbia v. Heller than critics of the 5-4 majority decision and the court's sometimes-conservative majority cried all the above. In holding that the Second Amendment granted individuals the right to keep and bear arms, the court's conservatives -- those champions of judicial modesty and originalism -- were now engaging in judicial activism of their own. Yes, everybody does it, and conservatives are just hypocrites for pretending otherwise.

The Washington Post's E.J. Dionne Jr. was at the head of the pack, with a column that appeared in The Oregonian the day after the decision. Not only was "the judicial right" guilty of this, but the ruling also showed that its talk of deferring to local authorities and elected officials on political decisions and heeding the Constitution's precise words was poppycock.

It's hard to know what accounts for the "They're activists, too" line. Is it confusion or a conscious bid to attack the judicial right's greatest strength -- the solid, winning notion that judges should interpret, not make, law? It certainly cannot be an impartial reading of Justice Antonin Scalia's majority opinion or a full understanding of judicial restraint.

Dionne thinks it's telling -- telling of dishonesty -- that Scalia spent the first 54 pages of the majority opinion explaining away the first 13 words of the Second Amendment ("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"). Dionne seems to have spent more time counting than reading. Would he have found the decision more compelling if Scalia had spent 25, 12 or no pages? Or would he have criticized it for not exploring the contemporaneous meaning and relevance of those (13) prefatory words and the (14) words that follow? Somehow I doubt he would have found any number of pages satisfactory, because he disagrees with the result. But what those 54 pages contain is honest, old-fashioned constitutional analysis -- a look at the text and context of the Second Amendment before, during and after the Framing.

But doesn't the "judicial right" favor local decision-making? Shouldn't elected city officials be able to craft policies (handgun bans) to deal with gun violence in their crime-ridden community? Not if they trample on the Constitution in the process. They cannot abrogate the First Amendment's assembly protections or the Fourth's search-and-seizure safeguards because a community wants to deal with gang violence or any other local problem. A due regard for states and local governments in our federal system and a proper judicial deference to the legislative and executive branches on political questions doesn't allow elected officials or unelected judges to ignore the Bill of Rights, and nobody on Dionne's "judicial right" has ever said otherwise.

Dionne and the Heller minority think the Second Amendment recognizes a collective right tied to "a well-regulated Militia," not any individual's right to keep and bear arms. They cite the 1939 "precedent" of United States v. Miller, which upheld two men's federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce. They think this shows the majority's contempt for precedents anathema to conservatives.

Scalia argues, however, that Miller is no precedent at all for their view. He notes that Miller did not center on the fact that the two individuals were not bearing arms for military purposes. In Miller, the court ruled only that the weapon was not eligible for Second Amendment protection, since sawed-off shotguns had no relationship to the "preservation or efficiency of a well regulated militia." As Scalia wrote for the majority, "Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen." Bingo.

Noting Scalia's 54 pages on the 27 words of the Second Amendment, the page-counting Dionne wrote last week. "Does that reflect an honest attempt to determine the 'original' intention of the framers?"

Actually, it does. Majestically so.

David Reinhard, associate editor, can be reached at 503-221-8152 or davidreinhard@news.oregonian.com


TOPICS: Constitution/Conservatism; Editorial; Government
KEYWORDS: banglist; heller; judiciary; reinhard; scotus; secondamendment; shallnotbeinfringed
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1 posted on 07/03/2008 9:20:01 AM PDT by jazusamo
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To: jazusamo

An unfortunate rendering of the headline and author.

Judge Reinhard is such a liberal weenie.


2 posted on 07/03/2008 9:25:40 AM PDT by Cletus.D.Yokel
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To: jazusamo
In holding that the Second Amendment granted individuals the right to keep and bear arms,

Except that the 2nd 'grants' nothing and the decision of SCOTUS said nothing of the kind.

L

3 posted on 07/03/2008 9:28:58 AM PDT by Lurker (Islam is an insane death cult. Any other aspects are PR, to get them within throat-cutting range.)
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To: jazusamo
So the Washington Post's E J. Dionne Jr. believes that upholding the precise literary definition of the 2nd Amendment is a form of right-wing judicial activism?

I believe that's called "projection." (Or insanity.)

4 posted on 07/03/2008 9:29:55 AM PDT by Flycatcher (Strong copy for a strong America)
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To: Cletus.D.Yokel

That thought didn’t cross my mind but you’re right.


5 posted on 07/03/2008 9:30:00 AM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: Lurker
Except that the 2nd 'grants' nothing and the decision of SCOTUS said nothing of the kind.

Exactly, the right is inherent. Yet liberals still fail to grasp this and believe rights are doled out to the great unwashed by the Benevolent Imperial Federal Government.

Years of brain conditioning by left wing academia has finally fruited. I'm not sure that it's possible to make any of them understand their wrong-headedness at this point.
6 posted on 07/03/2008 9:32:27 AM PDT by bamahead (Avoid self-righteousness like the devil- nothing is so self-blinding. -- B.H. Liddell Hart)
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To: Cletus.D.Yokel
An unfortunate rendering of the headline and author. Judge Reinhard is such a liberal weenie.

I think you might have misread the article. David Reinhard is a conservative defending Scalia. It is the idiot E. J. Dionne who needs to remove his head from you-know-where.

7 posted on 07/03/2008 9:34:44 AM PDT by Flycatcher (Strong copy for a strong America)
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To: jazusamo
Not to mention the the Miller decision was just wrong on it's main point - that "the Militia" didn't have a use for a sawed-off shotgun, so Mr. Miller wasn't entitled to own one.

That type of gun was used to devastating effect in the trenches of WW I, to force German soldiers to abandon those trenches, and subject themselves to even more withering firepower when outside the trenches.

If anything, this should cut the OTHER way. Our armed services, and our state militias, are allowed use of some very serious firepower. Citizen militias (i.e. able bodied males, etc.) should be allowed utterly unfettered access to the same weapons, in defense of tyranny.

It will be very telling if a case comes before the USSC with that set of facts as the argument as to why normal law-abiding people should be able to own full auto machine guns, for instance.

8 posted on 07/03/2008 9:35:22 AM PDT by willgolfforfood
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To: jazusamo

Ted Nugent summed it up nicely with this:

“SUPREME” COURT?
I CAN DO BETTER

by Ted Nugent

It is glaringly obvious that a critical lesson in history 101 is due in America, for it appears that not only does a lunatic fringe of anti-freedom Americans dismiss our founding father’s clear declaration of independence and succinct enumeration of our God given individual rights, but some Americans have the arrogance and audacity to question whether the right to self-defense is indeed one of these individual rights. Dear God in heaven, who could be this soulless? How about 4 out of the 5 so called “Supreme” justices of the land. God help us all.

Who could be so asinine as to believe that a free man has no such right to keep and bear arms for self-defense? What kind of low life scoundrel would know that courageous heroes of the US Military would volunteer over and over again to sacrifice and die for such self-evident truths, then turn around and spit on their graves by discounting the very freedoms that these brave men and women have died to protect?

Will these supreme legal scholars also affirm an individual right to chose the religion of our individual choice? Do they authorize our individual freedom of speech? Can you imagine? Them is fighting words my friends, and the line drawn in the sand has never been more outrageous.

Recent USA Today and Gallup polls showed a whopping 73% of good Americans know damn well that we are all created equal, and that we each have an individual right to protect our life, liberty and pursuit of happiness. What kind of jackass doesn’t know this? Allow the guitar player to translate for the soul-dead amongst us.

Keep-this means the gun is mine and you can’t have it. This does not mean I will register it with a government agency. The government works for “we the people”, not the other way around, regardless of what Hillary Clinton, Ted Kennedy, Hitler, Mao Tse Tung, Pol Pot, Saddam Hussein or Barack Hussein Obama or 4 supreme justices may try to tell you.

Bear-this means I’ve got it right here, on me, either in my grasp or damn near. This does not mean locked away in a safe, trigger-locked or stored at the local sporting club.

Shall not be infringed-this of course is another way of saying Don’t tread on me, for we will not be your willing crime victims, subjects, servants or slaves, so don’t even think about it.

When the evil King’s gangsters came to collect unfair taxes from Americans, we tossed their tea into the drink. When they came to disarm us into helplessness against their old world tyrannical ways, we met them at Concord Bridge and shot them dead till they quit treading on us. Any questions children? I didn’t think so.

Corrupt men cannot be trusted, hence the right of “the people” to chose the individual church of our choice, to speak our individual ideas and beliefs, to have individual freedom from unwarranted searches and seizures, and ultimately, to exercise our individual right to keep and bear arms so that evildoers cannot do unto us that which we would not do unto them. Get it? I would love to meet the human being who would argue these points with us. We would be looking at a fascist, and of course fascists, by all historical and empirical evidence, must be eliminated.

If you value the American Way, if you believe in the words and spirit of the US Constitution and our sacred Bill of Rights, if you know in your heart that you have the right, the duty, the spiritual obligation to protect yourself and your loved ones from evil in all of its forms, then you had best contact each and every one of your elected officials right away and let them know that you know exactly what the Second Amendment says and stands for. Remind them about the “shall not be infringed” clause.

It will not be the fault of the rotten anti-Americans out there who don’t believe in individual rights that rape and pillage our Constitution, it will be the fault of those who know better but failed to speak up. Now is the time to fortify America, and we better inform the Supreme Court just who truly is the “Supreme” Court of America-We the people. Individual people with individual, God given rights. The real America. Live free or die.


9 posted on 07/03/2008 9:37:16 AM PDT by DJ Taylor (Once again our country is at war, and once again the Democrats have sided with our enemy.)
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To: Flycatcher; Cletus.D.Yokel

I believe CDY is referring to my adding Reinhard’s name to the title following JUDGES.


10 posted on 07/03/2008 9:38:43 AM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: jazusamo
A question somewhat off topic. If one of the old, frail, liberal judges was to expire before the election, would Bush be able to get a replacement confirmed?

And what would be the consequences of that answer?

11 posted on 07/03/2008 9:45:07 AM PDT by Betty Jane
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To: Betty Jane
"And what would be the consequences of that answer?"

Harriet Miers could be brought out of retirement?

12 posted on 07/03/2008 9:49:05 AM PDT by DJ Taylor (Once again our country is at war, and once again the Democrats have sided with our enemy.)
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To: DJ Taylor; smoothsailing
Bump for Ted (whack em and stack em) Nugent!

He brings up an excellent point that Lawrence Henry also found the close decision frightening.

What America Is All About

13 posted on 07/03/2008 9:49:55 AM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: Betty Jane

I don’t think one could be confirmed unless he completely caved to the RATS wishes, which I doubt.


14 posted on 07/03/2008 9:52:42 AM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: DJ Taylor

Ted, I do not know if you are a lurker here, but damnit, come back to the peoples democratik republik of michigan and run for governor....please


15 posted on 07/03/2008 9:52:57 AM PDT by joe fonebone (The Second Amendment is the Constitutions reset button)
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To: Flycatcher; Lurker
David Reinhard is a conservative defending Scalia.

Well, perhaps he should be reminded that the BoR doesn't "grant" anything; it merely enumerates pre-existing, natural rights.

As with religion, speech & assembly (1A), we have the right to self-defense, whether the threat comes from criminals, insurrection, enemies or tyrannical government, regardless of any written words.

The greatest irony, which seems to be missed by most, is that the 2A practically guaranteed its own affirmation. Even though it was 5-4, I believe a dissenting justice would have joined the majority if Kennedy had wavered. No one wants to play that level of brinkmanship to see if the People would really be pushed to CWII.

16 posted on 07/03/2008 9:58:01 AM PDT by semantic
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To: semantic
Well, perhaps he should be reminded that the BoR doesn't "grant" anything; it merely enumerates pre-existing, natural rights.

Not to beat a dead horse here, but Reinhard understands that. He's on our side — 100% His attack is against people who don't understand that, such as E. J. Dionne. Reinhard even calls Scalia's defence of the literal interpretation of the 2nd Amendment "majestic."

To sum up, Reinhard, good; Dionne, bad.

17 posted on 07/03/2008 10:09:56 AM PDT by Flycatcher (Strong copy for a strong America)
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To: Flycatcher

You’re exactly right about Reinhard being on our side. I’ve posted many of his columns and some have seen The Oregonian listed and think he’s not on our side, he is a true conservative.


18 posted on 07/03/2008 10:15:43 AM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: Cletus.D.Yokel; MotleyGirl70; Cagey; Mr. Brightside; Gamecock; Rebelbase
Did you mean Judge Reinhold? (The close talker?)


19 posted on 07/03/2008 10:24:54 AM PDT by Larry Lucido
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To: jazusamo
It would be wonderful someday if a Supreme Court were to rule it unConstitutional to require a serial number on a firearm. Much of the anti-gunners evil is enabled by this single requirement.

Just as the key civil rights decisions dealing with race were followed by massive civil rights demonstrations, perhaps we will see a massive demonstration by gun owners refusing to enable the registration of their arms.

20 posted on 07/03/2008 10:47:57 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: jazusamo
Scalia argues, however, that Miller is no precedent at all for their view. He notes that Miller did not center on the fact that the two individuals were not bearing arms for military purposes. In Miller, the court ruled only that the weapon was not eligible for Second Amendment protection, since sawed-off shotguns had no relationship to the "preservation or efficiency of a well regulated militia." As Scalia wrote for the majority, "Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen." Bingo.

I agree 100%. Some of the Court's favorite words in a decision are: "...denied due to lack of standing." Why? Because that means they've disposed of the case in about 5 minutes, and are that much closer to clearing the docket.

It would have been the easiest thing in the world for the 1939 Court to have simply done as the 9th Circus routinely does now regarding the 2nd Amendment - call or treat it as a "collective" right (whatever that absurdity means), which no single person can sue to enforce. But that didn't happen for a reason: because it would logically have destroyed almost the entire Bill of Rights.

21 posted on 07/03/2008 11:19:21 AM PDT by Ancesthntr (An ex-citizen of the Frederation dedicated to stopping the Obomination from becoming President)
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To: Larry Lucido; jazusamo

Zackly

A quick glance at the Headline, as rendered by jazusamo, brought the pictured lib-weenie to mind.

It did make me stop and read, tho.


22 posted on 07/03/2008 11:22:29 AM PDT by Cletus.D.Yokel
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To: Betty Jane
"A question somewhat off topic. If one of the old, frail, liberal judges was to expire before the election, would Bush be able to get a replacement confirmed?"

I think the only avenue Bush would have would be to appoint a current Senator such as Orin Hatch to the Supreme Court. Even the most liberal of Senators would have a hard time voting against one of their own colleagues unless something really came out bad about him/her. Yes, they would get the rough treatment to satisfy the left wing, but someone like Hatch would certainly get through.
23 posted on 07/03/2008 11:24:23 AM PDT by Old Teufel Hunden
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To: jazusamo
They cite the 1939 "precedent" of United States v. Miller, which upheld two men's federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce.

What's particularly interesting with that "precedent" is that the Supreme Court didn't uphold any conviction; the case was reversed and remanded to trial court for further proceedings (which never took place).

24 posted on 07/03/2008 11:26:10 AM PDT by supercat
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To: jazusamo
"Dionne and the Heller minority think the Second Amendment recognizes a collective right tied to "a well-regulated Militia," not any individual's right to keep and bear arms. They cite the 1939 "precedent" of United States v. Miller"

Why did Miller have to be a scumbag criminal and get killed before his case came before the Supreme Court. If he would have been alive and had any kind of competent counsel that would have told the Supremes at that time that short barrelled shotguns were used as trench clearing weapons during the Great War. I have no doubt, Miller would have won the case and it would be one less bullet for the liberals to misuse (pun intended).
25 posted on 07/03/2008 11:34:12 AM PDT by Old Teufel Hunden
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To: jazusamo
“They cite the 1939 “precedent” of United States v. Miller, which upheld two men's federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce.”

David should read the U.S. v. Miller. There was no conviction because there was no trial. The trial judge set it up that way so that no evidence would be presented that the Second Amendment was an individual right.

The trial judge was a partisan anti-gun nut who was expected to get a Supreme Court nomination for his partisan activism. He died before he could be appointed.

26 posted on 07/03/2008 11:35:57 AM PDT by marktwain
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To: willgolfforfood

“It will be very telling if a case comes before the USSC with that set of facts as the argument as to why normal law-abiding people should be able to own full auto machine guns, for instance.”

Indeed, it will. Scalia even mentioned that a full auto would be protected under the Stevens view of “Miller”. Scalia says that this view is incorrect, that “Miller” also has to be understood in the context of the times in which the 2nd was written. This means that members of the militia were expected to report for duty bearing their weapons (i.e. those in common use at the time).

Of course, full autos aren’t exactly common - but that’s because the 2nd has been violated since 1934 by the government. From 1934 until the present day, if you wanted or want to have a full auto transferred to you, you had/have to (among other things) pay a $200 tax and get the approval of your local chief LEO. Until at least the 1970’s, $200 was very expensive in relation to the cost of the gun itself, so the numbers were limited (and they were also limited due to state law, or to anti-gun LEOs denying people permission, even if they had the $200 for the tax). On top of that, the supply of full autos available for civilian (i.e. non-governmental and non-Class 3 dealer, IOW the vast, vast majority of us) ownership was limited by federal law to those in existence and registered as of 5/19/1986.

I foresee that the ‘86 ban will be lifted - it has ALWAYS been legal to own a full auto under federal law (so how “unusual” or “dangerous” could they be?), and it is simply absurd (i.e. irrational) to say that a particular individual owning a pre-ban full auto cannot also own a post-ban full auto because that somehow presents a danger to society. I further predict that once that case is won, someone will challenge the $200 tax stamp required under the ‘34 NFA. The ruling in “Murdoch v. Pennsylvania” http://nesara.org/court_summaries/murdoch_v_pennsylvania.htm
is very clear in stating that there can be no tax imposed on the exercise of a Constitutional “privilege” (which should have read “right” which, I believe, will be corrected in a USSC opinion in the not-to-distant future).

Good days are coming. I forsee a day in which 5 or 10 million full autos are owned by civilians in this country, which would make any domestic tyranny an impossibility and any foreign invasion a bloody failure...just as the Founders intended.


27 posted on 07/03/2008 11:43:02 AM PDT by Ancesthntr (An ex-citizen of the Frederation dedicated to stopping the Obomination from becoming President)
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To: DJ Taylor

I think that McCain would win in a walk if he nominated the Nuge for Veep. He’d energize conservatives like no one since Reagan.


28 posted on 07/03/2008 11:48:39 AM PDT by Ancesthntr (An ex-citizen of the Frederation dedicated to stopping the Obomination from becoming President)
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To: willgolfforfood
Not to mention the the Miller decision was just wrong on it's main point - that "the Militia" didn't have a use for a sawed-off shotgun, so Mr. Miller wasn't entitled to own one.

That's not what Miller said. Here's what the court found:

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. "

They didn't decide the issue. Since no one showed up to argue Miller's side of the case, they just remanded the decision and told the lower courts to work it out.

Scalia discusses this exact point in his decision, and opened the door wide to future litigants seeking clarification. This may seem petty on my part, but the distinction is important as the issue is still in play, and will doubtless come up in the near future.

Molon Labe!

29 posted on 07/03/2008 1:38:04 PM PDT by absalom01 (The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.)
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To: Ancesthntr
"...full autos aren’t exactly common..."

The same thought occured to me as I was reading Scalia's opinion. Can the state, by its prior regulatory actions, be allowed to make some arms "uncommon", and then use that fact to prevent peacable citizens from owning "such an instrument"?

I would argue not, but that and three bucks would get you a cup of coffee these days.

I don't like the notion of relying on the courts to preserve our essential liberties (though in the present instance things broke in favor of liberty).

30 posted on 07/03/2008 1:45:20 PM PDT by absalom01 (The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.)
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To: harpseal; TexasCowboy; nunya bidness; AAABEST; Travis McGee; Squantos; Shooter 2.5; wku man; SLB; ..
Click the Gadsden flag for pro-gun resources!
31 posted on 07/03/2008 1:47:29 PM PDT by Joe Brower (Sheep have three speeds: "graze", "stampede" and "cower".)
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To: Ancesthntr
Of course, full autos aren’t exactly common

I beg to differ! Weapons with burst and/or full auto firing capability are the NORM when state militia units get together to train.

I think we'd have a 9-0 Supreme Court majority saying that state militia units training with the weapons in current common use is protected. We also just got a 5-4 majority to say that who can own which weapon is a question which is unconnected with service in a militia, so....

I'm thinking I should be able to run down to Mega-Lo-Mart and get an M-16. It's a common weapon, in current and common use by state militia units, and the court just got through saying that the government may be able to ban dangerous and unusual weapons, but it couldn't ban common ones.
32 posted on 07/03/2008 1:56:19 PM PDT by publiusF27
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To: absalom01

“I don’t like the notion of relying on the courts to preserve our essential liberties.” Me neither. BUT the political elites don’t trust us plebes to have the same arms that their employees have. This ruling is better than nothing, but really what is needed is legislatures that a) want to keep their offices and b) know that voting for “gun-control” legislation is going prevent them from doing a. It doesn’t rely on any more than self interest on the part of the elected to work. ;>)


33 posted on 07/03/2008 2:00:32 PM PDT by RKV (He who has the guns makes the rules)
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To: Lurker

The 2nd amendment goes down so does everything else IMO.........the socialists democrats and their handlers are working within laws and authority right now as much as we hate too admit it . They won’t like the false sense of security those laws and authority give them when they are declared moot by their own hand and when they become as useless as the constitution they seek too destroy........

Unless they can make grain grow on roof tops their urban refuge is a death trap nightmare waiting too happen should the flare go up !


34 posted on 07/03/2008 2:05:14 PM PDT by Squantos (Be polite. Be professional. But, have a plan to kill everyone you meet)
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To: publiusF27
"Of course, full autos aren’t exactly common "

I beg to differ! Weapons with burst and/or full auto firing capability are the NORM when state militia units get together to train.

I was referring to full autos in civilian hands - because any suit to overturn the '86 ban is moot as applies to a "state militia" or the state's National Guard. Those are governmental entities, and I'd sincerely doubt that the people in these organizations are training with their own personal weapons.

Besides, if a state's militia is also the National Guard unit for that state, it can be federalized at the stroke of the President's pen. Ask Rudy Perpich, former guv of Minnesota, who sued to prevent the MN NG from going on manuevers to Central America. In 1990 the Supreme Court put the old collective-rights canard of "the National Guard IS the militia" into its well-earned grave, decapitated, with several wooden stakes through the heart and a generous dose of silver bullets - it was a unanimous decision.

I know your heart is in the right place, but please don't claim that full autos are common because of state militias, even if they are, in fact, common there. Try taking one of those guns home and see what happens - it would not only be theft of government property, but you'd probably be in violation of the NFA and the '86 FOPA for transferring a full auto without a tax stamp. I do understand where you're coming from - you're arguing that full autos are common, therefore they can't be limited according to what Scalia said in Heller - but they aren't common where they matter for a court case to overturn the '86 ban...in the hands of civilians. Of course, the only reason is because of unconstitutional laws - what buyer of an AR or AR clone wouldn't pay an additional $100 or so for "Da Switch?" If there was no NFA and no '86 ban, there'd be at least 5 million full autos (or select fire weapons, which amounts to the same thing in a legal sense) in civilian hands, maybe more.

35 posted on 07/03/2008 2:24:55 PM PDT by Ancesthntr (An ex-citizen of the Frederation dedicated to stopping the Obomination from becoming President)
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To: marktwain

Sent to the author:


“In Miller, the court ruled only that the weapon was not eligible for Second Amendment protection, since sawed-off shotguns had no relationship to the “preservation or efficiency of a well regulated militia.”

In fact, the court stated the following:


In the **absence of any evidence** tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, **we cannot say** that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.

There had been no testimony during the course of the proceedings that short-barrel shotguns had seen routine military use in World War I as “trench guns,” and continued to be used militarily until 1939, and in fact right through today.

And since the US Supreme Court cannot hear testimony or admit new evidence, only review the record as it stood at that point, they couldn’t draw on their own military experience, call an expert witness, or take “judicial notice” of the fact as if it were an obvious and widely-known fact.

So the reality is that the US Supreme Court didn’t “rule” that short-barrel shotguns had “no relationship” - because such a ruling would have been completely false as any WW-I veteran who’d cut down Germans with one would have known - they ruled that the record contained no evidence that it did, and thus sent the case back down for further evidentiary hearings in a lower court, hearings which never took place.

The court concluded by ordering that the indictment against Miller and Layton be quashed (thrown out) and sent the case back down:


AND IT IS FURTHER ORDERED that this cause be, and the same is hereby, remanded to the said District Court for further proceedings in conformity with the opinion of this court.

The mythology surrounding the Miller case runs deep, and it certainly doesn’t help that news media keep repeating falsehoods about it decade after decade. I hope that the Oregonian won’t continue to do so. It’s bad enough that Scalia himself did.

-Michael Pelletier.


36 posted on 07/03/2008 2:27:37 PM PDT by mvpel (Michael Pelletier)
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To: jazusamo
Scalia's opinion is a monument. It will and should be used in the future by any of the justices who are there to interpret the constitution, not legslate it.

Scalia was brilliant arguing against the dissent opinions by basing his position on factual evidence and not emotional rhetoric, that's the trick of the antis.

37 posted on 07/03/2008 2:30:09 PM PDT by Pistolshot (When you let what you are define who you are, you create divisiveness.)
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To: absalom01
Well, I'm no lawyer, but I more or less tried to say the same thing.

From your post: Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. "

This is why I said the court made a mistake - they didn't do their homework. Maybe it was - as you said - a result of Mr. Miller (who I believe was deceased by the time the Supremes heard oral arguments) had no one there to actually represent his side.

In any case, they were wrong about that. Sawed off shotguns had been used to great effect ALREADY in WW I. Not to mention bootleggers found them very useful for illicit perposes, when they couldn't get their hands a the sub-machine guns of those days.

So I again state my point that the USSC was unaware of the LEGITIMATE use (or uses) this type of weapon could have. During war, or as home protection, and on and on. They didn't do their homework, whether Miller had an attorney present or not, and they screwed up.

And whatever lower court looked at this case on the way back down ALSO screwed up. And for several decades now, somehow this case has been used by the anti-gun crowd to say some really stupid things.

38 posted on 07/03/2008 2:32:29 PM PDT by willgolfforfood
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To: Ancesthntr

We shouldn’t get all wrapped around the axle of the term “common.”

We now have a “Miller Test” with respect to firearms and the Second Amendment. The test goes like this: “Does said firearm have some reasonable relationship to the preservation or efficiency of a well regulated militia?”

If the answer is “Yes,” then the weapon is encompassed by the Second Amendment.

So that means that M-16s are covered, short-barrel shotguns (”breaching guns,” “combat shotguns”) are covered, 20mm anti-tank rifles are covered, etc.

What’s doesn’t have such a relationship? Perhaps saps, brass knuckles, slungshots... What’s a “dangerous and unusual” weapon? Perhaps chemical, biological, or nuclear arms, JDAMs, or autonomous air-defense guns...


39 posted on 07/03/2008 2:34:27 PM PDT by mvpel (Michael Pelletier)
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To: willgolfforfood
Sawed off shotguns had been used to great effect ALREADY in WW I. Not to mention bootleggers found them very useful for illicit perposes, when they couldn't get their hands a the sub-machine guns of those days.

So I again state my point that the USSC was unaware of the LEGITIMATE use (or uses) this type of weapon could have. During war, or as home protection, and on and on. They didn't do their homework, whether Miller had an attorney present or not, and they screwed up.

I'd be willing to bet that at the very least one of the Justices who heard the Miller case had personal knowledge of short-barrel shotguns as "trench guns" in WW-I.

The problem is, the US Supreme Court can't hear new evidence, it can only review what's been presented in lower courts. That's why they remanded the case for further proceedings.

40 posted on 07/03/2008 2:36:47 PM PDT by mvpel (Michael Pelletier)
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To: Ancesthntr

Ted Nugent is way too conservative for McAmnesty!!


41 posted on 07/03/2008 2:38:51 PM PDT by blackie (Be Well~Be Armed~Be Safe~Molon Labe!)
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To: willgolfforfood
They didn't do their homework, whether Miller had an attorney present or not, and they screwed up.

Got it...I didn't quite understand your point. Just to flog this dead horse one more time, though, when the court said "it is not within judicial notice....", what that means is "Look, we (personally, not as judges) know guys used sawed-off shotguns as personal defense weapons in the last war, but you have to present that evidence to us. We're the court. We don't go do research on that sort of thing (in later years this would be called a form of judicial activism).)

My point is that it wasn't the court's job to go out and figure out whether a sawed-off shotgun was "...part of the military equipment...", in fact, you don't want courts doing that.

Now, this issue will be brought up again, and who knows what the results wil be. We'll find out. At least the door is open now, and we're on the offensive, which is much better than the endless rear-guard actions of the past 70 years.

42 posted on 07/03/2008 2:47:36 PM PDT by absalom01 (The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.)
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To: Lurker

Exactly so. Scalia even points it out in one of those 57 pages...


43 posted on 07/03/2008 2:48:48 PM PDT by Dead Corpse (What would a free man do?)
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To: Ancesthntr
That's true, but AR-15s are common in civilian hands, and the price of a legal happy switch demonstrates that they would be common if not for the ban.

I think the ban on full autos is much more vulnerable than is commonly believed. Consider what the Appeals Court ruling, just affirmed by the Supreme Court, had to say:

Once it is determined—as we have done—that handguns are “Arms” referred to in the Second Amendment, it is not open to the District to ban them.

Scalia spoke directly of the issue, and wound up saying this:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause..... But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

He was talking about other modern weapons, but the only "modern development" which causes gun shops to sell AR-15's to us and full auto versions of the same gun to the government is the ban on post '86 machine guns.
44 posted on 07/03/2008 2:53:35 PM PDT by publiusF27
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To: mvpel

Thanks for that info. Like I said, I’m no lawyer. But now I know why many of those who are can say, “The law is an ass.”


45 posted on 07/03/2008 2:54:00 PM PDT by willgolfforfood
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To: Ancesthntr
I know your heart is in the right place, but please don't claim that full autos are common because of state militias, even if they are, in fact, common there.

How common is common?

If every legally available one is in private hands, with the exception of relatively small dealer inventories which sell at prices vastly above the world market, solely because of regulation, the argumant can be made that they are as common as is possible under current regulations, and that demand exceeds supply.

The very (inflated) sale price of a currently transferrable arm makes the case that they would be more common were they available, and especially if the price were lower.

As you state: "If there was no NFA and no '86 ban, there'd be at least 5 million full autos (or select fire weapons, which amounts to the same thing in a legal sense) in civilian hands, maybe more."

46 posted on 07/03/2008 2:57:30 PM PDT by Smokin' Joe (How often God must weep at humans' folly.)
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To: Joe Brower; Travis McGee; El Gato; Squantos; goldstategop; Eaker; wardaddy; AxelPaulsenJr; ...
http://www.freerepublic.com/tag/by:robertpaulsen/index?brevity=full;tab=comments

Look who's been missing for 2 months. AxelPaulsenJr, are you related to Robert? If so, what happened?

47 posted on 07/03/2008 2:58:04 PM PDT by neverdem (I'm praying for a Divine Intervention.)
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To: willgolfforfood
Miller was alive but absent when the case was heard. He was killed before it could be heard again by the lower court. His partner, Frank Layton, copped a plea.
48 posted on 07/03/2008 2:58:21 PM PDT by publiusF27
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To: mvpel

So if you notice someone blasting away with a trench gun, and then you later become a SC Justice, it’s not within judicial notice? LOL! Good points re “common” and “unusual” weapons above, btw.


49 posted on 07/03/2008 3:01:42 PM PDT by publiusF27
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To: neverdem

?


50 posted on 07/03/2008 3:03:01 PM PDT by Squantos (Be polite. Be professional. But, have a plan to kill everyone you meet)
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