Skip to comments.Gun Control and the Constitution
Posted on 02/10/2013 9:46:08 PM PST by neverdem
The courts would no more allow government to undermine the Second Amendment than the First.
Could there be a better illustration of the cultural divide over firearms than the White House photograph of our skeet-shooting president? Clay pigeons are launched into the air, but the president's smoking shotgun is level with the ground. This is not a man who is comfortable around guns. And that goes a long way toward explaining his gun-control agenda.
Lack of informed presidential leadership aside, there is a gulf between those Americans who view guns as invaluable tools for self-defense, both against private wrongdoers and a potentially tyrannical government, and those who regard that concept as hopelessly archaic and even subversive. For them, hunting is the only possible legitimate use of firearms, and gun ownership should be restricted to weapons suited to that purpose.
But while the level of the policy discourse leaves much to be desired, its constitutional dimensions are even more dimly recognized, much less seriously engaged. Yet the debate over guns, as is the case with many other contentious issues in American history, cannot be intelligently pursued without recognizing its constitutional dimensions. The Supreme Court's 2008 decision in Heller v. District of Columbia confirmed that the Second Amendment means what it says: "the right of the people to keep and bear arms shall not be infringed."
After Heller and its follow-on case, McDonald v. Chicago, which applied the Second Amendment rights to the states, what government cannot do is deny the individual interest in self-defense. As a legal matter, that debate is settled.
The president and his allies seem to have missed the message, as demonstrated by his continued insistence that most of the American people, including many hunters, support his proposed gun-control measures. Even if that claim were true, constitutionally protected...
(Excerpt) Read more at online.wsj.com ...
Besides being our most noble emperor,he’s a professor of law! How could he POSSIBLY have missed the message???/sarcasm;)
The Lying POS who resides at 1600 Penn Ave. has decided he will unilaterally reduce our nukes to 900 (for now) without a treaty or Senate approval on the action. By “informal agreement” with the Russians. Nuts.
Now, what does the Constitution say about nukes? See how evil Obozo is.
Commie Dems: “We don’t need no stinkin Laws!”
And where are those in DC defending the nation as they swore in their oath of office?
Remember the part about “protect and defend the Constitution”?
Sorry I failed to post the link:
Obama to Renew Drive for Cuts in Nuclear Arms (ours)
“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.”
~United States v. Miller, 307 U.S. 174 (1939)
Mabe he is shooting the skeet while the clay is still in the launcher?
True -- And it's too bad the court wasn't aware that shotguns had been used in WWI trench-clearing.
As to people in Washington D.C. defending the Nation you can stop at Brennan the Muslim right after Obama the Muslim.
I have a Winchester 1897. It will sweep quail and dove as well as Heinies.
The barrel has mellowed over the years into a beautiful brown.
“When American troops were in the heat of the fighting in the summer of 1918,
the German government sent a protest through a neutral agency to our Government
asserting that our men were using shotguns against German troops in the trenches.
The Ordnance Department procured some 30,000 to 40,000 shotguns
of the short-barrel or sawed-off type, ordering these from the regular commercial manufacturers.
The shell provided for these guns each contained a charge of nine heavy buckshot.”
~Benedict Crowell, Assistant Secretary of War (1919)
America’s munitions 1917-1918:
Report of Benedict Crowell(Google eBook):
I have my Fathers long tom 97 shotgun. It has a 32 inch barrel and my dad would wait for everyone else to stopp firing at pheasants and then he would raise his shotgun and drop the bird everyone else missed
Ironic, but Miller just may play a pivotal part in establishing how “Assault Weapons” are specifically protected under the 2A.
Al Qaeda in the White House.
Very well said.
We still need a militia, since our neighborhoods are still potentially under threat from gangs in some places and we still have natural disasters where an organized defense is important against looters and other criminals. In time of major war, militias would provide well-trained shooters to our armed forces - essentially as we have always done befoire. I'm sure that the Left understands all of this but their desire to utterly enslave everyone overcomes them.
>>The president and his allies seem to have missed the message<<
Elmer Fudd didn’t miss the message; he does what he damn well pleases. NOBODY is willing to call him out; so he keeps on ignoring the Constitution, the courts and anybody who stands up to him.
We are still waiting to resume drilling in the Gulf, after a judge ordered that Elmer Fudd had no authority to stop the drilling. Oil companies are too afraid; wildcatters are too afraid; everybody is too afraid.
Welcome to Acirema, land of the enslaved and home of the cowardly.
The courts would no more allow government to undermine the Second Amendment than the First.
I want my M16.
Interesting timing from our Communist-in Chief: North Lorea is announcing new nuclear tests, is also testing missiles that can range us and they have put out a video showing an attack on one of our cities - while the Iranians are now finally announcing that they to are ready field nuclear weapons (instead of developing peaceful nuclear power as they had so steadfastly claimed).
Oddly, the MSM failed to pick up on this timing.
I wonder where these little bad boys fall...
If I lived in Chicago or New York a crossbow with a few of these would be a good home defense option.
Just as the following supreme court cases played a "pivotal part" in establishing the Usurper into office:
Supreme Court cases that cite natural born Citizen as one born on U.S. soil to citizen parents:
The Venus, 12 U.S. 8 Cranch 253 253 (1814)
Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says: The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.
Shanks v. Dupont, 28 U.S. 3 Pet. 242 242 (1830)
Ann Scott was born in South Carolina before the American revolution, and her father adhered to the American cause and remained and was at his death a citizen of South Carolina. There is no dispute that his daughter Ann, at the time of the Revolution and afterwards, remained in South Carolina until December, 1782. Whether she was of age during this time does not appear. If she was, then her birth and residence might be deemed to constitute her by election a citizen of South Carolina. If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father, for children born in a country, continuing while under age in the family of the father, partake of his national character as a citizen of that country. Her citizenship, then, being prima facie established, and indeed this is admitted in the pleadings, has it ever been lost, or was it lost before the death of her father, so that the estate in question was, upon the descent cast, incapable of vesting in her? Upon the facts stated, it appears to us that it was not lost and that she was capable of taking it at the time of the descent cast.
Dred Scott v. Sandford, 60 U.S. 393 (1857)
The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.' Again: 'I say, to be of the country, it is necessary to be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country. . . .
Minor v. Happersett , 88 U.S. 162 (1875)
The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.
United States v. Wong Kim Ark, 169 U.S. 649 (1898)
At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.
Perkins v. Elg, 307 U.S. 325 (1939),
Was a decision by the Supreme Court of the United States that a child born in the United States to naturalized parents on U.S. soil is a natural born citizen and that the child's natural born citizenship is not lost if the child is taken to and raised in the country of the parents' origin, provided that upon attaining the age of majority, the child elects to retain U.S. citizenship "and to return to the United States to assume its duties." Not only did the court rule that she did not lose her native born Citizenship but it upheld the lower courts decision that she is a "natural born Citizen of the United States" because she was born in the USA to two naturalized U.S. Citizens.
But the Secretary of State, according to the allegation of the bill of complaint, had refused to issue a passport to Miss Elg 'solely on the ground that she had lost her native born American citizenship.' The court below, properly recognizing the existence of an actual controversy with the defendants [307 U.S. 325, 350] (Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 , 57 S.Ct. 461, 108 A.L.R. 1000), declared Miss Elg 'to be a natural born citizen of the United States' (99 F.2d 414) and we think that the decree should include the Secretary of State as well as the other defendants. The decree in that sense would in no way interfere with the exercise of the Secretary's discretion with respect to the issue of a passport but would simply preclude the denial of a passport on the sole ground that Miss Elg had lost her American citizenship."
The Supreme Court of the United States has never applied the term natural born citizen to any other category than those born in the country of parents who are citizens thereof.
“The courts would no more allow government to undermine the Second Amendment than the First.”
If this is the case, then why, since at the very least Sandy Hook, has no one from the Supreme Court explained to the “dear leader” that this agenda, this campaign, to infringe upon the citizens is non-Constitutional, and therefore NOT going to be certified by the court...
Much less the people, who WILL (and are choosing to) resist, and are already opposing this agenda...
I find the silence to be more damning, than supportive of its just potential, to stave off these oppressions...
It does illustrate, that the opposistion to our liberties is hedging its bets that we (at least some of us) will fight back with every means at our disposal...
What a poor (and sad) decision on their part...
“The Bow Mag has the most lethal killing power of any arrowhead on the market for big game and nuisance animals.”
Hehehe, “nuissance animals”...I believe we can come up with a few of those...
First, you must bring suit against the president and then let it proceed up the chain. When it is brought to their attention, in a formal and legal manner, the SCOTUS can react.
Legal reality does not include off the cuff jibberjabber
“Miller” is bull$hit.
‘Abscence of evidence’ was ‘absent’ simply bcause there was no arguement on the other side.
The blunderbuss (for One) had a LONG history in warfare from the very first instances of the FLINTLOCK!
Sure, he got the message...And it was rejected...
I wonder why our side of the political spectrum can’t seem to learn the same lesson...Instead of trying to be nice and compramise with the Kalif-in-Chief...
I meant, “will NOT fight back...
We are losing because our side refuses to acknowledge we are in a war.
“When you are in a war—when you think of yourself as in a war—there is no middle ground. Radicals perceive opponents of their causes as enemies on a battlefield, and they set out to destroy them by demonizing and discrediting them. Personally. The politics of personal destruction is an inevitable weapon of choice for radicals. If your goal is a just world, then the moral code you live by requires you to wage war without quarter.” p. 32, Barack Obama’s Rules for Revolution, by David Horowitz, Freedom Center.
Sure...The Gauntlet has been thrown down...
I hope there are enough of us willing to pick it up...
“What are YOU prepared to do about it??? And, what are YOU prepared to sacrifice for your beliefs???”
It has always been a rhetorical, gut-check type question, not requiring an answer in a public forum, such as this...
The opposition understands this and will do what they can to keep the “trigger” from being pulled on one fail swoop...It’ll be subtle, because a lot of us have different thresholds of tolerance and our reactions to that stimuli will be different...And applied differently...
And maybe that aspect (difference) is to our advantage, from a certain viewpoint, and the reason why the opposition wants to lump all of us and our potential into one breadbasket and deal with us in-masse, because somehow they believe that will benefit them and their efforts...
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the [2nd amendment], prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But as already stated, we think it clear that the sections under consideration [parade permit laws] do not have this effect.Presser v. Illinois - 116 U.S. 252 (1886)
Scalia rewrote the Miller decision, when he composed Heller. Now, the constitutional test is whether or not a weapon is in common use. Illogical as can be. Anyway, Hamblen was convicted of possession of machine guns, and his appeal was based on the disconnect between Miller, as it is was written, and Miller, as interpreted by Scalia. The federal Circuit Court of Appeals just blew off the argument by not addressing it, and took Scalia's "in common use" test.
Since machine guns are so highly regulated, they are not in common use. Hamblen's conviction was upheld.
Don't look to the courts for meaningful help. Also, post-Heller, a federal circuit court of appeals found a ban on 10 round magazines to be constitutional. SCOTUS denied cert.
Remember, though, that “legal precendent” is pretty much always a one-way ratchet to the left.
The Miller case is okay. What's a crock is the way it has been applied, again, for the OPPOSITE of what it stands for. Courts get away with this, because not many people read the precedents and find out the courts rationale is bogus. That is, the courts lie about the law.
The SCOTUS remanded the case to the court below, with (coded in legalese) instructions to obtain evidence. If the evidence showed a sawed off shotgun had a militia use, or was useful for the common defense, then the dismissal of the charge was to be reinstated, and the 1934 NFA (tax on firearms) was to again be held an unconstitutional infringement of the RKBA.
It has since been watered down further by the "common use" idiocy of Scalia who is supposed to be "conservative". There is no logic to the arguement that "Machine guns aren't in common use, so it's ok to keep them banned even though they are only banned by unconstitutional means".
Here is what SCOTUS said (link to opinion and briefs) ...
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. ...
We are unable to accept the conclusion of the court below and the challenged judgement must be reversed. The cause will be remanded for further proceedings.
It seems to me that the holding of Miller is that if a weapon has a military use, and both short barrel shotguns and machine guns emphatically do have such purpose, then it is unconstitutional to so much as tax their acquisition and possession. "Any part of ordinary military equipment" is yet another category of arms that the Miller case held as out of reach of regulation.
The Miller case was subsequently read for the OPPOSITE of what it says, by Circuit courts who were asked to uphold subsequent convictions.
Circuits courts also read the Presser case for the OPPOSITE of what it allows states to do. It's easy to do - just cherry pick a sentence out of any opinion, and assert this is the principle.
Presser stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the States.Bach v. Pataki, 408 F.3d 75 (2d Cir.2005)
the states cannot, even laying the [2nd amendment] out of view, prohibit the people from keeping and bearing armsPresser v. Illinois, 116 U.S. 252 (1886)
Plenty of people blame the Presser case for what subsequent courts did with it, and the same is true with the Miller case.
When it comes to the right to keep and bear arms, the courts are bald-faced liars.
I was being a bit sarcastic but ultimately the USSC dropped the ball on Miller. Yes, lower courts allowed people to then lie about the case making it even worse. Had the USSC done it’s job correctly it never would have come to that.
The parties appearing before courts always spin their side to best advantage. My observation is that it is the courts themselves that are liars. When it comes to the right to keep and bear arms, the courts are a corrupt institution.
SCOTUS, like the other branches, is part of the Federal Government and has the same motive to preserve and expand its power. And in aggregate, the decision of SCOTUS have expanded the reach of FedGov and diminished liberty at least since Wickard. Thanks in part to them, there is nothing limited about FedGov and a great deal of what it has inserted itself into is certainly not enumerated.
I don't see how anyone can claim with a straight face that the FedGov is a creature of the States rather than their heavy handed master.
Some noteworthy articles about politics, foreign or military affairs, IMHO, FReepmail me if you want on or off my list.
Thanks for the ping!