Posted on 03/29/2007 12:48:37 PM PDT by neverdem
I love this...
Thanks for the ping and plug!
Until the 14th amendment, it could easily be said that the 2nd amendment only proscribed the federal government, NOT the state governments, and therefore states could do whatever they wanted with gun laws.
The 14th amendment gave the "rights" of people of the united states to all people regardless of the states they lived in, but it wasn't originally interpreted to mean that the restrictions on the actions of the federal government applied to the states, only that whatever rights were conferred upon a person by the basis of being a citizen of the united states could not be infringed by a state.
Later, the 14th amendment was interpreted as appending the U.S. constitution to the constitutions of each state -- at that point, if the federal government was not allowed to infringe upon gun ownership, neither should the state be allowed to do so.
I do not think the founders intended to dictate to the states that citizens must be allowed to own guns. I think they only intended to prevent the federal government from taking away anybody's guns. The reason was that states didn't want to give up power to the federal government to defend themselves, but the amendment clearly specifies that individuals cannot be restricted from gun ownership by the federal government.
So I could buy the argument that each state has a right to restrict gun ownership, for their own citizens, in keeping with their own state constitutions.
The federal government could require states to honor the rules of other states for those other state's citizens (like carry rules).
But the federal government should NEVER have been allowed to enact an assault weapons ban. The 2nd amendment CLEARLY prohibits the federal government from infringing in any way with the rights of the people. A STATE could ban assault weapons under that interpretation, but not the federal government.
Rudy Giuliani supported the federal assault weapons ban, which directly contradicts his statement now that it is a "state" thing.
And he said that he supports this appeals court ruling, which directly contradicts his claim that it is a state thing, because this appeals court said the district had no right to make a law for it's own people.
I know. Disgusting, ain't it? Does he take us for fools?
So has DC imploded in violence and bloodshed since the gun ban was struck down? The way liberals talk, you'd think there wouldn't be any living human beings left there by now.
It is a little vague - I interpret it as referring to a decision in favor of individual rights in the matter that still leaves a loophole for whatever legislation Congress cares to propose. Having one's cake and eating it too, in essence.
The real difficulty is what happens to the considerable body of existing law should its underlying premise be stricken down. For example, does a gun store operator still have to keep his paperwork in this case? What if he doesn't? And who will decide?
Even under the best of circumstances, a ringing endorsement of the Second as a fundamental individual right, the fight will not be over. We're in this for the long run.
Yeah. I'm not so sure that I want the Supreme Court going there right now. I think the article is right: best case scenario, we get some sort of watered-down individual right, and I don't really think that's in our best interest right now.
We've been making a lot of progress in state legislatures over the past couple decades and I think I'd just rather see that trend continue for the time being.
Fred Thompson isn't mentioned - even though not a candidate YET, he's looking increasingly likely to be one, and he's very strongly pro-gun. That'd change the calculus quite a bit.
Don't be so sure. Scholarship on an issue is often important in Supreme Court decisions. You're right about Dershowitz; he's not a constitutional scholar. But when people like Tribe or the folks at Boalt Hall speak on a constitutional issue--as this article mentions--that is the type of stuff that can make the Supreme Court listen.
Don't pooh-pooh legal scholarship. Books and law review articles can absolutely change the way the law is viewed. Bork's Antitrust Paradox comes immediately to mind, along with John Hart Ely's Democracy and Distrust.
That's what I always laughed at about the gun grabbers' idea that guns somehow cause crime. All you need to do is go on one hunting trip to see prodigious numbers of heavily armed people, mostly grubby men, occupying every motel room and camping space in and around small towns in places like Colorado, Wisconsin, and Pennsylvania. By the gun grabbers' "logic" each of those little towns should be a bullet-pocked wasteland, occupied only by the dead and mortally wounded. Strangely, that's not the case now and never has been.
Rudy had to kiss the NRA ring if he wanted the nomination; now he's done it.
You can't form an ad-hoc militia of unarmed people.
Or Switzerland.
A gun in practically every home, and guess what? Crime is about non-existent.
Roget that ~ Bravo Zulu!!
Au Contraire!
http://www.jpfo.org/miller.htm
Only once in the Twentieth Century has the U.S. Supreme Court interpreted any part of the Second Amendment. That case was U.S. v. Miller, which the Court heard and decided in 1939.1 The Court held that the National FirearmsAct – under which machineguns, shotguns with barrels under 18" in length, short-barreled rifles, and firearms silencers had to be registered and a $200/item tax paid was constitutional. Few who discuss this decision have actually read it, and so know that the Court heard only one side of the matter, the Government's. Fewer still have read the entire record, and so know that the Court rejected most of the Government's claims about the Second Amendment
United States vs. Miller (1938)
If the U.S. Supreme Court takes this case, what will they consider -- law reviews or lower federal court decisions?
The Constitution.
The USSC makes precedent for the lower courts, not vice-versa.
I predict that DC will not appeal this case to the USSC precisely because an affirmative ruling would invalidate ALL gun control laws throughout the country.
Sarah Brady and Company can't afford that.
Yes, but SCOTUS heard Miller on its merits, rather than stating that Miller the man had no standing. As such, it is an individual right. Further, all of the discussion regarding the particulars of the shotgun in the case had to do with the issue of which weapons are protected for individuals to own. The Supremes (wrongly, IMHO) said that it was basically weapons suitable for increasing the efficiency/effectiveness of the militia (which they identified as all citizens and residents from 17-45). Since there was no "judicial notice" that a sawed-off shotgun was suitable (i.e. since Miller had no attorney representing him), they ruled against Miller and his shotgun.
That, however, raises a really interesting point - SCOTUS effectively said that you've got to have a military weapon or something that functions in an essentially identical manner - and banning such weapons is unconstitutional. So what does that say for Title 18, Section 922(o) (the 1986 ban on additions to the NFA list of civilian held full autos)? It says that it is unconstitutional. Who could deny the utility of an M-16, an M-4 or even an M14 (since it never officially left service, and is now being brought back for the DM's for longer-range engagements)? Heck, I think that you could make a powerful argument that any hand-held firearm ever used by the military was a "militia" weapon, thereby protecting Tommyguns, revolving cylinder shotguns, etc.
I'd like to see Parker get to SCOTUS, and for it to affirm the decision - at least insofar as the 2nd being protection for an individual right...because if it does this, then 922(o) is not long for this world, and we'll be able to buy new full autos for reasonable prices.
A gun in practically every home, and guess what? Crime is about non-existent.
Keep in mind that the gun that the Swiss militia of the present day is armed with is a full auto weapon - and that they're required to keep ammo with the weapon. If guns caused crime, there'd be no one in Switzerland.
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