Posted on 09/26/2003 1:31:39 PM PDT by 45Auto
Mike
Although this is a "Request," AG Lockyear in California can read the handwriting on the wall. This step by the Court means that unless California files a brief NOW that satisfies the Court it should not take this case, that at least the four Justices required to vote to take the case are ready to do just that.
The Silveira case has just jumped from the average odds of one chance in 200 that the Court will take your case, to 95 chances in 100 that the Court WILL take the case. I'd call that real progress.
Congressman Billybob
For instance, I expect that the SC will find that the 2nd does indeed confer an individual right. This would be terrific. But they may also have to respond to the ludicrous examples the left will throw at them such as the right to own tanks, missiles, bazookas etc. They may then find that the states have the right to some sort of "reasonable restrictions" that the left can use to go right back on "assault weapons" etc.
Of course I'm not a lawyer and don't know anything. If the SC ever agreed with the collective right/state militia position over individual rights, they know they'd have a riot on their hands, so hopefully we are safe on the most important point.
"The 2nd has already been so compromised by the judiciary that they cannot now do the right thing without seriously putting all 20,000 state and federal gun laws under the microscope. Still, a ruling from the US SC that would put the idea that the government MUST demonstrate a "compelling interest" into what the lawyers call "boilerplate", before enacting further gun control would stop a lot of the nonsense that goes on in California and other state legislatures today. The burden of proof would be on the state, not on the RKBA advocates.
When one looks at the case law involving the 2nd or the RKBA that has accumulated over the last century, one is struck by the total unwillingness of the judiciary to define the last four words, i.e., "...shall not be infringed." To my mind, these are the most powerful words in the entire Constitution. They say to me that NO gun control law is constitutional. Even the dicta in Emerson which is pretty good for the RKBA does not address these words. The court cannot define these words in any official capacity - it would negate every gun law on the books. So in my opinion, they will try to stay on the middle ground, if they do agree to hear Silveira. I just don't think they have the guts to take it, nor to rule on the individual right that is the 2nd. The courts including the US SC have been very clever at skirting the heart of many issues; witness the University of Michigan ruling vis-a-vis racial quotas; the court ruled on something other than the Constitution in that one. That ruling essentially nullified the 14th Amendment 'equal protection' clause.
I don't think that even Ginsburg could rule with a straight face that the 2nd refers to a "collective right"; such a thing does not exist in the Constitution, nor anywhere else in founding documents. Therefore, Reinhardt's rambling, constitutionally flawed dicta in Silveira cannot stand. To rule that the 2nd refers to the 'right' of the government to arm the government and not to "infringe" the right of government to be armed by the government is totally nuts. Such a ruling would destroy the entire Bill of Rights and the Republic with it. The ramifications would be so staggering that government could not govern at all.
The piecemeal fashion with which the courts so blithely dismiss the liberty of the Constitution leads to, at best, disdain for the law and, at worst, total contempt and widespread disregard for the law. At the extreme, open rebellion becomes a possibility. Nobody wins in such a case, including the lefties, who must be either very short-sighted, or really stupid: if the 2nd goes, so goes the 4th and 5th.
The ACLU is going to find itself really out on a limb with its @ss in a wringer by its lack of support for the 2nd, indeed, for the entire Bill of Rights because, sooner or later, a ruling that would set in motion a gun confiscation plan would run smack dab into the 4th. What the heck do they think they can do then? The macabre humor of that little scenario tickles me to no end: the ACLU hung out to dry, hoisted on its own petard.
Because the US SC has no guts, they are caught in a dilemma: on the one hand, they cannot rule that the 2nd "shall not be infringed"; on the other, they cannot rule that there is no individual right to keep and bear. So I think they will rule (if they take a true 2nd case) that there is a right to keep and sometimes bear some (but not all) guns.
They used that lie to further their anti-gun agenda in passing unconstitutional gun laws over the last 5 years in Cal. I sure do want to see that jerk b*tch-slapped by the SC! I want to see the official state of California DOJ brief that says there is no individual right. It will be interesting to watch this unfold.
I have some reservations about this case; Dave Kopel and others have opined that it could be bad for the RKBA if the court decides to be tyrannical about it. On the other hand, a decision is long overdue - this issue has been "ripe" for some time. States like California and New Jersey and Illinois simply operate as if there is no Constitutional protection for the ownership of firearms. They pass law after stupid law restricting the ability of the lawabiding to acquire the most effective means of self defense. Once on the books, these laws are almost impossible to repeal. That is why I'd like to see the US SC rule that the states must show "compelling interest" why such laws should be passed. That way the burden of proof would be on the states, not on the RKBA advocates.
Unfortunately, that sets a pretty low bar. Professional liars like the VPC and Arthur Kellerman are only too happy to write "scholarly" or "educational" papers like, a gun in the home is 43 times more likely to kill friend or family than an unknown intruder, a gun in the home triples one's risk of homicide and quintpules one's risk of suicide, and last but not least, for every time a woman uses a gun to kill a criminal attacker, 140 women are killed by guns. It's easy enough to show why these papers are meaningless or deceptive, but there are enough anti-gun legislators at the state level to accept them and enact "compelling need" laws based upon them. Shifting the burden of proof to the antis wouldn't nearly accomplish what you seem to think it would.
(By the way, if "the right to keep arms shall not be infringed" doesn't mean what it says, what does it mean? Answer that, please, SCOTUS.)
So then the rub is what "infringe" means in this context. Merriam-Webster's dictionary has this definition:
Main Entry: in·fringe
Pronunciation: in-'frinj
Function: verb
Inflected Form(s): in·fringed; in·fring·ing
Etymology: Medieval Latin infringere, from Latin, to break, crush, from in- + frangere to break -- more at BREAK
Date: 1533
transitive senses
1 : to encroach upon in a way that violates law or the rights of another (infringe a patent)
2 obsolete : DEFEAT, FRUSTRATE
intransitive senses : ENCROACH -- used with on or upon (infringe on our rights)
synonym see TRESPASS
Since no one I know uses the word "infringe" in daily conversation (Hey, I don't want to infringe on your lunch hour), we have this fairly clear but easily malleable definition to stare at and think about. It's easy to see how defining "shall not be infringed" is wide open for interpretation and can easily be argued against at its most extreme possible forms, from either side. I can see why the SC has been reluctant to set this in stone.
My personal interpretation is that you have to look at the period in which it was written and the intent and context of the amendment at the time, then project that intent and context onto the present time, given the differences in arms available then and now. They didn't have RPGs and smart bombs and nuclear warheads back then, so of course the authors were not considering them when they penned what seems to be a perfectly sensible statement. But obviously one cannot expect that the 2nd only applies to blackpowder muskets and Bowie knives, which is what the average citizen and militiaman had then, either.
All of which leads us back to the prickly question that the left will insist on being specified, which is, how much gun is too much gun? Does restricting RPG launchers "infringe" upon the right to bear arms? An idiotic example but one which will be thrust in the face of even a sympathetic and knowledgeable judge, and one which really cannot easily be defined. You're right, we will "win" and yet will be right where we are for all practical purposes. *sigh* I need a drink.
Printed for the use of the Committee on the Judiciary
Click here to read the report BY THE SENATE that finds an INDIVIDUAL RIGHT to keep and bear arms
"The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner."
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"The Era of Osama lasted about an hour, from the time the first plane hit the tower to the moment the General Militia of Flight 93 reported for duty."
Toward FREEDOM
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