Posted on 05/06/2003 6:47:44 PM PDT by Z-28
Asserting that the decision will necessitate review by the United States Supreme Court because of an alleged conflict with the 5th Circuit is nonsense.
As 5th Circuit Judge Robert M. Parker pointed out in his concurring opinion in United States v. Emerson, "The determination whether the rights bestowed by the Second Amendment are collective or individual is entirely unnecessary to resolve this case and has no bearing on the judgment we dictate by this opinion."
Would you like to make a prediction on what the Supreme Court will do?
We should also remember that these self-same federal judges pushed for HR 1752 in the 106th Congress, which "preempts state firearm laws by permitting Justice officers of the United States to carry a firearm without a state permit".
So, all 800-odd active federal judges are members of an American elite class who can carry wherever they feel like, but us peasants can't protect ourselves.
A well regulated Militia, being necessary to the security of a free State, the right of the people 800 federal judges to keep and bear Arms, shall not be infringed.
As for what I expect out of the USSC... not much. They wouldn't DARE upset the apple cart as much as it needs to be. The CORRECT ruling would be that the 2A protects an individual Right against all infringement. Period. Not just for sportin purposes, not just for personal self-defense, but also as a last line of defense against government tyranny. As stated in several judges dissenting opinions. Due process in criminal proceedings is the only way to strip someone of their Rights, as explcitly stated in the Constitution.
What they will probably do is come up with a decision half way between what people like you want, IE; unrestricted power to ban firearms at the State and local levels, while still trying to maintain the fiction that they believe it is an individual Right.
Pretty piss poor Right if any little tin-horn Mayor can strip that Right from you wit hthe stroke of a pen. It's a top down system that isn't written in greek. Plain language "supreme Law of the Land" and "shall not be infringed" are pretty darn unambiguous.
It is at this point we start "Voting from the rooftops".
I agree with your point that SCOTUS will try to avoid ruling on the individual rights question but also think that issue is much harder to avoid for the 9th Circuit case than it would be for the Emerson case.
I'd love to see a Congressman attach a rider to a bill this session that would lift the exemption of federal judges that vote against an individual right. It probably wouldn't fly under equal protection grounds, but the furor over the provision alone would be helpful for pointing out the hypocracies of the left in the debate.
Re:
"On this, didn't I hear Ginsburg is getting near retiring? And how old is Stevens?"
I can't say, but the sooner these buggers are history, the better!
That URL is worth repeating. Check it out, folks!
http://www.thehighroad.org/showthread.php?s=&threadid=21491
This guy gets it and this bears repeating, as he is smacking the majority between the eyes with a big stick for their intellectual dishonesty. (It is about as close as a judge can get to calling another judge a dipshit.)
KOZINSKI, Circuit Judge, dissenting from denial of rehearing en banc:Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that "speech, or . . . the press" also means the Internet, see Reno v. ACLU, 521 U.S. 844 (1997), and that "persons, houses, papers, and effects" also means public telephone booths, see Katz v. United States, 389 U.S. 347 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.
The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. See Kleinfeld Dissent at 6011-12; see also Brannon P. Denning & Glenn H. Reynolds, Telling Miller’s Tale: A Reply to David Yassky, 65 Law & Contemp. Probs. 113, 117-18 (2002). The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller’s weapon—a sawed-off shotgun—was reasonably susceptible to militia use. See Miller, 307 U.S. at 178. We are bound not only by the outcome of Miller but also by its rationale. If Miller’s claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller’s test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.
It is nice to see a Judge that has both balls and intellectual integrity.
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