Posted on 05/05/2009 9:58:16 PM PDT by neverdem
What I said I was impatient toward was radical miscasting of a case. That sort of jurisprudence undercuts the credibility of the law. If Miller can be bastardized "as a matter of compromise," then so can Heller, and so can the 2nd amendment.
If the majority wanted to revisit Miller, and modify it, they should have done so directly. Saying "Miller was convicted" (where that error is the essential foundation for the substantive statement that begins "We also recognize another important limitation ... [on the individual right]") makes that statement one of outcome-based expedience. It's as invalid as O'Connor's opinion in Casey.
I can't prevent you from accepting that sort of jurisprudence as a necessary expediency, and you can't prevent me from finding it cheap, tawdry, and demeaning of law as a logical art.
Time will tell if your prediction is correct, that the Courts will eventually strike down the 1934 NFA, using Heller as the basis. I've expressed why I hold the opposite point of view, and substantiated my prediction by pointing at the plain language in the Heller decision. I didn't cite, but I have recollection of post-Heller cases that took advantage of the unambiguous dicta, and in a way that affirms the government's power to infringe.
Nope. Engineer.
Pessimists think the glass is half-empty.
Optimists think the glass is half-full.
Engineers think the glass is twice as big as it should be.
Then there's the joke about a priest, a lawyer, and an engineer who faced execution by guillotine during the French Revolution.
As the priest mounted the platform, he said, "I am righteous and the Lord will save me." He took his position, the blade was released, and the blade stopped halfway down. The executioner explained that only one attempt at execution was allowed and the priest was set free.
Next the lawyer mounted the platform and said, "I am innocent and deserve to be exonerated." He took his position, the blade was released, and again the blade stopped halfway down. The executioner explained that only one attempt at execution was allowed and the lawyer was set free.
Finally, the engineer mounted the platform and said, "I see your problem right there. A screw in the frame has backed out and is interfering with the blade."
All those things are arms, but the terms of the government *permission* (CHL/CCP/CCW, which I have) to bear arms, generally exclude all but concealed handguns. But every state's laws are different. Are those exclusions, or the very requirement for state permission to carry arms Constitutional. Probably not. Although it's possible that if *open* carry were not restricted, as was the case when most of the early anti concealed carry laws were written, then licensing of concealed carry might be Constitutional. But OTOH, it still would be an "infringement" on the right to *bear* arms.
Was that a real offer, or a hollow one?
cboldt: As of Heller, the substantive right is "you can keep a pistol at home, for self-defense." That's what the 2nd amendment has been reduced to, and yes, it pisses me off.I don't think that is true at all. The Heller decision establishes the narrowest possible scope of the protected right, but doesn't come anywhere near the entire scope.
I didn't mean for the "pistols and only at home" to be taken literally as the full scope. But as it stands, SCOTUS has ruled that a city (or any other division, e.g. state) may require a license to posses a handgun in the home, and this requirement does not run afoul of the 2nd amendment.
Although it didn't need to, the Heller Court also intimated that all the federal firearms laws are constitutional, because finding otherwise would be troubling. SCOTUS very clear implication that the 1934 NFA and 1968 GCA are permissible in light of the 2nd amendment is powerful mojo, and IMHO, people who think a District or Circuit Court are going to find otherwise are delusional. There will continue to be complete harmony in the federal court system, upholding those laws -- and now with the added heft of rhetoric in the Heller decision.
I’d start with the key word “if” in his opinion.
That's where I started. Then I ran into "but." Did you get that far? Or is your analysis in rebuttal of my concern limited to one sentence taken in isolation? At least William Tell bothered to provide some substance in his dialog, all you're providing so far is a disagreement with no supporting argument.
Your copy of Heller must be different from mine. My copy contains the following:
"Respondent conceded at oral argument that he does not “have a problem with . . . licensing” and that the District’s law is permissible so long as it is “not enforced in anarbitrary and capricious manner.” Tr. of Oral Arg. 74–75. We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement."
To me this sounds like an invitation to a later petitioner or respondent to challenge the licensing. Once again, we see that the Heller decision addresses Heller's issue as narrowly as will do the job. The full scope of the right has yet to be addressed.
The above sentence from Heller could have been written: "Nothing in this decision should be taken to cast doubt on the prohibition against keeping arms without a license." BECAUSE THE ISSUE WAS NOT ADDRESSED.
Well, as you state it, no doubt is to be cast on the prohibition. Ergo, the prohibition is presumptively constitutional.
I agree that the licensing issue isn't finally settled, but on account of an absence of challenge, it likewise isn't forbidden (to the government). Certainly some forms of licensing have been endorsed (1934 NFA and 1968 GCA), so even the licensing issue can be carved up in a variety of ways.
MacDonald v. City of Chicago (08-cv-3645, N.D.Ill), NRA v. Chicago (08-cv-3697), and NRA v. Oak Park (08-cv-3696) are as a legal formality turned against the plaintiffs seeking to invalidate laws, with the losses being assigned to the Seventh Circuit's doctrine that states are not bound by the 2nd amendment (not incorporated).
District Court in the two NRA cases - Dec, 2008.
http://www.chicagoguncase.com/ Summary of legal action, up to "Seventh Circuit has now scheduled argument for Tuesday, May 26, 2009"
I can picture the Seventh Circuit pulling a Nordyke, finding incorporation, and ordering a licensing regime similar to whatever DC is doing. That sets up absence of conflict between the Circuits, and keeps the heat off SCOTUS to grant a writ of certiorari on the substantive aspect of the licensing scheme.
Don't get my sentiments wrong. I'm happy to see the draconian measures of DC, Chicago, and others being tempered. Bear in mind that my original contention on this thread was that SCOTUS, in Heller, had endorsed finding bans on private ownership of select-fire weapons (M-16s) to be constitutional. Past that, I find the ground gained in Heller to be significant in that it is a step away from total ban. But the precise ground actually taken in Heller is "handgun in the home but only with a license having terms set by the city."
Heller's lawyers, and they are the same lawyers handling the Chicago cases, purposely declined to challenge the licensing. They purposely asked the court to find that there is an individual, FUNDAMENTAL, right to keep and bear a handgun for self-defense and other purposes in the home.
The pro-gun side purposely wanted to keep other issues off the table, no doubt to avoid the kind of reasoning which states, "If the government can ban machineguns, then they can ban any gun, and thus they can ban Heller from having his gun in his home".
Instead, the Court was forced to address the meaning of the Second Amendment with sufficient depth to SETTLE the one question before the Court.
Canada has already spent BILLIONS on their gun registry, with nothing to show for it. Gun licensing and gun owner licensing is a losing proposition and will fall dramatically just as soon as the courts dictate that the cost of licensing must be borne by the state.
Utah is experiencing financial stress because they set the fee for renewal of a CCW at $10 and it doesn't cover the cost. People like me, living in the People's Republik of Kalifornia, jump through Utah's hoops so that we can carry in the thirty-five or so states which recognize Utah's permit. As a result, Utah's burden of out-of-state permits numbers in the range of a hundred thousand or more.
Similarly, Florida has an immense backlog of renewals to process for similar reasons.
If Kalifornia had to start paying the costs of their registration and enforcement system, the whole thing would probably collapse in today's economic environment.
Once it has been decided that a law-abiding person can carry a loaded, concealed gun in public with a state-funded "license" and that the gun can be a military-pattern, center-fire, magazine-fed rifle using normal-capacity magazines, THEN it will be time to challenge NFA 34. This needs to be practically the LAST issue addressed, not the first.
It is very important that the public be able to say at each step, "What's the big deal?" The Supreme Court had to deal with "What's the big deal about having a handgun in one's home?" The anti-gunners lost big time and don't even know it.
Next it will be, "What's the big deal about people in Chicago having the same rights as people in DC?" Then it will be, "What's the big deal about presumption of skill at arms when it comes to owning or carrying a handgun?" (States which require training see no advantage in the statistics of shootings or accidents.)
We got into the mess we did through incremental loss of rights. We will have to expect to get out of the mess in the same incremental way.
How do you expect the government, when the time comes, to justify denying people the right to possess and carry machineguns when virtually every politician of any note is protected by guards carrying exactly those arms?
In the Nordyke case, after finding that the 2nd amendment did constrain the local government, the Ninth Circuit said, "the Ordinance [prohibiting gun shows on the county fairgrounds] does not meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it."
I'm aware of Gura's strategy and the tactics. I'll leave it at that.
This issue, too, I think will fall when the "What's the big deal" catches up.
The Heller Court purposely avoided assigning "strict scrutiny" or any other standard on the right to keep and bear arms. The ban on having a handgun in one's home wouldn't pass ANY level of scrutiny, so the Court left any further discussion for a later case.
"Strict scrutiny" would seem to mandate that gun shows be allowed, since it is unthinkable that the county could outlaw, say, a show dedicated to rare bibles.
But Alameda County, which effectively outlawed gun shows by prohibiting guns on "county property", will eventually suffer the effects of "What's the big deal".
The courts will have to find that bearing a handgun while traveling from one's home to one's place of business will be protected behavior. Eventually, Alameda County will witness the comings and goings of many armed citizens despite any necessity to travel into or through some county property. (Much of the road running past my place is county property.)
In the one instance in which the county can continue to prohibit arms, inside county buildings such as those at the fairgrounds, it won't take long for the taxpayers to say "What's the big deal about having gun shows, especially since that is the one time when the county can make some money off the gun owners". A starving government has little in the way of resources to hassle pro-gunners.
Glen Beck just made a personal appeal to the SCOTUS justices to stay healthy.
I assume that his comment was aimed at the five Justices who concurred in Heller. It matters little to me what happens to the rest.
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