Posted on 05/08/2007 10:05:16 AM PDT by ozoneliar
In the Parker case, a 2-1 majority of the D.C. Circuit found that the DC city council's prohibition on handguns, and its ban on using any firearm for lawful self-defense, were violations of the Second Amendment. Today, the full Circuit denied the DC government's petition for a rehearing en banc.
The decision states: "Appellees' petition for rehearing en banc and the response thereto were circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petition. Upon consideration of the foregoing and appellees' Fed. R. App. P. 28(j) letter, it is ORDERED that the petition be denied."
A footnote to the order states: "Circuit Judges Randolph, Rogers, Tatel, and Garland would grant the petition for rehearing en banc." The following is the list of judges who voted on the petition, with affirmtive votes marked by an asterisk: "Ginsburg (Chief Judge), Sentelle, Henderson, Randolph,* Rogers,* Tatel,* Garland,* Brown, Griffith, and Kavanaugh."
They most certainly instructed the District Court to recognize the individual right of both Miller and Layton to possess weapons suitable for Miltiia use.
The District Court judge in his initial dismissal recognized that Miller and Layton were protected by the Second Amendment. Otherwise the dismissal would have been unwarranted. The Supreme Court only disagreed on whether Miller and Layton had a protected right regardless of the nature of the arms. That is the only basis on which they overruled the District Court judge.
If either the District Court judge or the Supreme Court considered Miller or Layton NOT protected by the Second Amendment, they both had the judicial authority and opportunity to say so. Failing to say so had the foreseeable and intentional effect of permitting Miller or Layton to be acquitted solely on the basis that the weapon was useful to a Militia. Either court was free to raise this issue. Neither did.
By definition, a properly approved amendment to the Constitution is "Constitutional", even if it is very poor law. Was the argument that the Eighteenth Amendment was not properly passed?
Here's an outline of the argument, copied from some law prof's blog:
THERE ARE CONSTITUTIONAL IMPLICATIONS FOR SUBSTANTIVE CONSTITUTIONAL PROVISIONS.
IMPOSSIBLE, YOU SAY, FOR AN AMENDMENT TO BE UNCONSTITUTIONAL?
UNSUCCESSFUL ARGUMENT AGAINST PROHIBITION
BODY:
THE SPECIFICS ARE THAT THE BREWER'S ATTORNEY, ELIHU ROOT, ALONG WITH OTHER LAWYERS REPRESENTING OTHER CHALLENGERS, TOOK ON THE 18TH AMENDMENT IN VARIOUS WAYS, BUT THE ARGUMENT THAT MOST APPEALED TO ME WAS DIRECT AND SIMPLE, ALTHOUGH NOT SIMPLISTIC.
ROOT ARGUED THAT THE 18TH AMENDMENT WAS NOT AN ''AMENDMENT'' WITHIN THE MEANING OF THE CONSTITUTIONAL PROVISION THAT AUTHORIZES ''AMENDMENT TO THIS CONSTITUTION.''
HE CLAIMED THAT OUR CONSTITUTION IS AN ORGANIC LAW THAT ORGANIZES THE POWERS OF GOVERNMENT, DIVIDING POWER BETWEEN THE FEDERAL GOVERNMENT AND THE STATES, AND AMONG THE THREE BRANCHES OF THE FEDERAL GOVERNMENT.
A PROVISION BANNING THE MANUFACTURE, SALE, ETC. OF LIQUOR DOES NOT ALLOCATE POWER TO GOVERNMENT; IT DOES NOT RESEMBLE ANYTHING ELSE IN THE CONSTITUTION AND THUS IS NOT AN "AMENDMENT" OF THE CONSTITUTION.
ON JUNE 7, 1920, IN A BRIEF AND CONCLUSORY OPINION, THE SUPREME COURT UPHELD THE 18TH AMENDMENT WITHOUT ANALYSIS OF THE ABOVE ARGUMENT.
TWO JUSTICES DISSENTED, BUT NEITHER VOTED TO HOLD THE 18TH AMENDMENT UNCONSTITUTIONAL.
PETER LUSHING, PROFESSOR OF LAW, BENJAMIN N. CARDOZO SCHOOL OF LAW, YESHIVA UNIVERSITY, NEW YORK
Interesting. Thanks.
I think the Supreme Court did the right thing in rejecting the argument. The argument is similar to what we hear from the "living document" crowd; that is, that somehow one can read into the Constitution things that are not written there. I have read nothing in the Constitution which places a restriction on what amendments the people may propose or adopt.
Presently, the Supreme Court is allowing a War on Some Drugs without the benefit of an amendment granting such power to the central government. The Court has proposed that the power to regulate interstate commerce includes the power to regulate intra-state commerce whenever regulating inter-state commerce does not have the effect that the Congress desires. It's similar to the argument that Congress can control crops that a farmer grows for himself. It's nonsense.
I think the Supreme Court did the right thing in rejecting the argument. The argument is similar to what we hear from the "living document" crowd; that is, that somehow one can read into the Constitution things that are not written there. I have read nothing in the Constitution which places a restriction on what amendments the people may propose or adopt.
Root and the other men that argued the issue were hardly "from the 'living document' crowd".
Here is more detail on a courageous attempt to restore sanity to our political process:
"-- The Supreme Court issued its most sweeping decision concerning the Eighteenth Amendment in June 1920. Seven cases, each raising fundamental questions concerning the constitutionality of the amendment, were consolidated by the Court and labeled the National Prohibition Cases. A host of highly regarded attorneys, including Elihu Root, William D. Guthrie, and Levy Mayer, as well as Herbert A. Rice and Thomas F. McCran, attorneys general for Rhode Island and New Jersey respectively, represented the appellants. The oral arguments lasted for five days, an unusually long time for even the most important cases.
Attorney General Rice began by arguing that the amendment invaded the sovereignty of Rhode Island and her people, an invasion not contemplated by the amending clause of the Constitution. Rhode Island had not ratified the Eighteenth Amendment. The amending power, Rice contended, was provided to allow for the correction of errors in the fundamental instrument of government. The first ten amendments were adopted to insure against the encroachment by the federal government upon state functions and powers. If the amending power were to be construed as to allow any type of amendment, the boundary between federal and state authority could be shifted at will, and the people of a state would be at the mercy of others in matters of political institutions and personal rights.
Attorney General McCran, arguing along the same lines, stressed that the Tenth Amendment reserved all unenumerated powers to the states and to the people. The right to surrender such rights and powers, McCran contended, belonged exclusively to the people themselves and not their legislative representatives."
The argument of Elihu Root attracted the most attention. The former Secretary of War, Secretary of State, and senator represented a New Jersey brewer.
Root asserted that the Eighteenth Amendment was simply unconstitutional.
The substantive portion of the so-called Eighteenth Amendment, he said, did not relate to the powers or organization of government, as constitutional provisions ordinarily do. Rather, it was a direct act of legislation.
He denied that the amending provision of the Constitution, Article V, authorized this type of amendment. Root pointed out that if the validity of the prohibition amendment were to be upheld, its repeal could perpetually be prevented by a minority.
Repeal could be accomplished only by the passage of another constitutional amendment which, of course, would require the approval of three-fourths of the states. He distinguished between a constitutional amendment which granted the Congress power to prohibit the use of intoxicating liquors and an amendment which required such a prohibition. An amendment of the former sort would leave the question within the control of a majority of the people, but one of the latter type, such as the current amendment, thwarted the democratic process.
Finally, Root contended, the Eighteenth Amendment undermined a fundamental principle of the federal system by directly invading the police powers of the states and encroaching upon the right of local self-government. If the amendment were upheld, he told the Court, the states would no longer be indestructible and the federal system of government could be completely subverted. "
Root gave a memorable peroration:
If your Honors shall find a way to declare this so-called Amendment to the Federal Constitution valid, then the Government of the United States as it has been known to us and to our forefathers will have ceased to exist. Your Honors will have discovered a new legislative authority hitherto unknown to the Constitution and quite untrammeled by any of its limitations.
You will have declared that two thirds of a quorum of each House of the Congress, plus a majority of a quorum of each of the two Houses of the Legislatures of three fourths of the States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself.
In that case, Your Honors, John Marshall need never have sat upon that bench."
Presently, the Supreme Court is allowing a War on Some Drugs without the benefit of an amendment granting such power to the central government.
Do you really want a super majority to have the power to prohibit most ~any~ thing?
The Court has proposed that the power to regulate interstate commerce includes the power to regulate intra-state commerce whenever regulating inter-state commerce does not have the effect that the Congress desires. It's similar to the argument that Congress can control crops that a farmer grows for himself. It's nonsense.
Agreed, It's nonsense to allow Congress the power to prohibit. It's also nonsense to allow a super-majority of our peers the power to prohibit guns, drugs, booze, whatever.
This is interesting. I have not had occasion to consider whether the amendment process, requiring as it does such a super-majority, is subject to abuse.
If the eighteenth had just given Congress the power to prohibit manufacture of alcohol, then a simple majority of Congress would be sufficient to choose NOT to exercise such power. That doesn't sound like a bad idea.
I'll have to give this some thought to decide whether that distinction is sufficiently useful.
For example, the thirteenth amendment could simply have given Congress the power to prohibit slavery. That would mean that a simple majority of Congress today could re-institute slavery.
The US Civil War was based on an expectation that states may not leave the Union just based on their own determination. If the Constitution contained a provision for states opting out, our nation would be quite different today. I can't say whether it would be better or worse.
Extending judicial review to include whether amendments are "Constitutional" sounds like a problem which might be much worse than abusing the amendment process. But I do see now that there is something to consider. Thanks.
This argument does not convince me. Though it is true that such a super-majority may legislate outside the limitations of the Bill of Rights, it was just such a super-majority which established the Bill of Rights. It seems to me that it is theirs to change.
It has many times been pointed out that the right to keep and bear arms pre-existed the Bill of Rights. Repealing the Second Amendment or amending the Constitution to infringe such right, in no way modifies the pre-existing right.
The incorporation into the Constitution of the provisions regarding representation based upon slave populations in no way affected the unalienable human rights of black people to life, liberty, and the pursuit of happiness.
If the super-majority specified by the Constitution sees fit to "improve" it in some way, then they probably deserve the benefit of the doubt. The right to keep and bear arms is probably the only fitting counter to unjust amendments. Judicial review is not a fitting counter, I think.
True. And that argument, we agree, was ignored the first time. But now that the shotgun is verified to be a Militia-type weapon, then maybe the argument has merit. It would be worth a second try.
Anyways. That wasn't my point. My point was that another argument the prosecution could bring up (now that the shotgun is a verified to be a Militia-type weapon) is the collective right argument -- and argue that Mr. Miller doesn't have standing to use the second amendment as his defense.
My line of reasoning is this. When the U.S. Supreme Court limited the second amendment protection to Militia-type arms, that changed the whole nature of the case. The prosecution can now explore that angle like they couldn't before.
If the weapon was determined by the District Court to be suitable for Militia use, then the case would have been dismissed (again). It makes no difference to the District Court (or to the U.S. Supreme Court) who actually brought the case. It's dismissed as a violation of the second amendment (a tax on a Militia-type weapon).
So you cannot conclude it's dismissed because Miller and Layton were individuals. Might just as well argue the case was dismissed because they were white males. (More on that.)
"If either the District Court judge or the Supreme Court considered Miller or Layton NOT protected by the Second Amendment, they both had the judicial authority and opportunity to say so."
I don't think the U.S. Supreme Court has that authority. They have the authority to determine if a federal law violates the second amendment, and they implied that a tax on a Militia-type weapon would violate it. That was the case the U.S. Supreme Court was presented. That's about as far as they can go.
"Failing to say so had the foreseeable and intentional effect of permitting Miller or Layton to be acquitted solely on the basis that the weapon was useful to a Militia."
Acquitted? No. The charges would have been dismissed. And they would have been dismissed no matter WHO was charged as violating the NFA because the NFA would have been found to be an unconstitutional law.
Why aren't you concluding that the second amendment protects individual white males? I mean, if Miller and Layton were black females, maybe the District Court wouldn't have dismissed the charges initially. Maybe the only reason the District Court dismissed the charges the first time was that the judge believed the second amendment only protected white male citizens between 18 and 45?
You don't know. I don't know. The District Court judge never clarified his decision. He just said the NFA violated the second amendment.
If the super-majority specified by the Constitution sees fit to "improve" it in some way, then they probably deserve the benefit of the doubt.
How can there be any 'doubt' that prohibitions on basic rights are NOT improvements?
The right to keep and bear arms is probably the only fitting counter to unjust amendments. Judicial review is not a fitting counter, I think.
We have judicial review to prevent infringements; -- unjust amendments with no redress would result in calls to arms. Civil war is preferable?
Our constitution has an inherent 'presumption of liberty' principle.
Amendments infringing on that principle would be repugnant, null & void from enactment; as was the 18th.
You are wrong about how the process works. The judge is not going to delay the trial to allow the prosecutor to raise a point which was already raised during the first appeal. Even if the judge DID, the circumstances would be IDENTICAL to those which existed when the Supreme Court ignored the militia-membership argument. There is no reason whatever to believe that the Supreme Court is going to change its decision, given that the circumstances are IDENTICAL.
If the trial is held using the Supreme Court guidance to examine the usefulness of the arms, then the jury will reach a verdict. If Miller and Layton are acquitted, then the process is OVER. There can be no appeal by the prosecution.
Anybody else later found in the same circumstances as Miller and Layton would be faced with the same guidance regarding the conduct of the trial. If the prosecutor appealed a dismissal, the circumstances for the new defendants would be identical to those of Miller and Layton prior to the Miller decision. There is no reason to believe that an identical case presented to the Supreme Court for two new defendants would cause the Court to render a different decision.
The Supreme Court in Miller KNEW that it was possible that a jury would find the shotgun useful to a Militia. They KNEW that it was possible that other arms ARE useful to a Militia. It was a foreseeable and intentional act on the part of the Supreme Court to allow INDIVIDUALS to be acquitted SOLELY on the basis of whether the arms they possessed were useful to a militia.
The prosecutor's argument involving militia-membership was ignored PURPOSELY not accidently. It's not like there was too much for the justices to read. The prosecution's brief was just that; BRIEF.
~~~~~ Over 120 law review articles have addressed the Second Amendment since 1980. The overwhelming majority affirm that it guarantees a right of individual gun owners. That is why the individual right view is called the ~standard model~ view by supporters and opponents alike. ~~~~ With virtually no exceptions, the few articles to the contrary have been written by gun control advocates, mostly by people in the pay of the anti-gun lobby.
That's simply not true. The appeal was to overturn the dismissal of criminal charges against Layton and Miller. The fact that they were both white males does provide for the possibility that blacks or females aren't covered. But the prosecution never argued that sex or race was relevant. They did argue that militia-membership was relevant, but the Court did not agree, else they would have had an obligation to say so.
Had the Supreme Court wanted to include sex or race as a criteria for Second Amendment protection, they had an obligation to say so. Just as the Supreme Court had no evidence before it concerning the usefulness of the particular weapon possessed by Miller or Layton, they also had no evidence before it concerning the racial background or sex of the defendants.
Even you would have to admit that the NFA 34 is still being enforced, yet you want to argue that the Miller decision found it unConstitutional. Obviously, the Supreme Court has the power to rule that a law can be defective without being completely defective. The Supreme Court was of the opinion that NFA 34 could be Constitutional with respect to some weapons. The FACT of whether a particular weapon was protected was to be decided by a jury. That is what the guidance from the Miller decision contained. It contained no burden whatsoever on any defendant to be a member of a militia, despite the prosecution having argued for it.
But the context of the statement was to justify the dismissal of criminal charges against Miller and Layton for possessing a short-barreled shotgun. Whatever the judge believed, it had to include that the Second Amendment protected THOSE two defendant's possession of THAT shotgun. Whether the Second Amendment is broader than that was not relevant to THAT DISMISSAL.
If the District Court judge had believed that the Second Amendment somehow DID NOT protect the possession of a short-barreled shotgun by Miller and Layton, then he would not have dismissed the charges, even if the Second Amendment did protect somebody's right to possess something.
Just as the Supreme Court was not required to find that NFA 34 was completely defective in order to find it defective with respect to some weapons, so too the District Court judge did not have to define completely the scope of the Second Amendment. The judge only had to find that it violated Miller and Layton's right to possess the specific weapon in their case.
We agree that infringements are repugnant. We don't agree that an amendment which is a repugnant infringement is unConstitutional or that the Supreme Court can rule it so.
Consider again my example regarding slavery. If the thirteenth amendment gave power to Congress to prohibit slavery, then Congress today could re-impose it.
At some point there has to be a force greater than the Supreme Court. I believe that the super-majority required for passage of an amendment is such a greater force. Even greater than that is the people's power to alter or abolish their form of government, by force of arms if need be.
If our Founders had been unsuccessful on the battlefield in the American Revolution, there would be no question that the monarchy was the "legitimate" government, however tyrannical it might be. Only force of arms was going to change it.
You are mistaken. Once the Supreme Court had made the decision that the usefulness of the weapon was to be determined, no lower court would be justified in dismissing.
I believe a similar circumstance occurred in the 2000 election. The Supreme Court ordered the Florida Supreme Court to follow Florida election law. When the Florida Supreme Court failed to do so, then the Supreme Court took matters into its own hands and ordered the election results to be certified without further recounts.
If the District Court judge failed to follow the guidance of the Supreme Court in conducting a trial concerning the usefulness of the weapon and dismissed a second time, the prosecution would seek a change of venue or elimination of the faulty judge. A second dismissal which ignored the Supreme Court guidance in Miller would not cause a re-hearing of the Miller decision, it would only trigger Supreme Court action to cause its original guidance to be followed.
Our constitution has an inherent 'presumption of liberty' principle. Amendments infringing on that principle would be repugnant, null & void from enactment; as was the 18th.
We agree that infringements are repugnant.
We don't agree that an amendment which is a repugnant infringement is unConstitutional or that the Supreme Court can rule it so.
We agree then that slavery is a repugnant infringement on an individuals most basic rights. You choose however to ignore that infringement if it is made as an Amendment.
Consider again my example regarding slavery. If the thirteenth amendment gave power to Congress to prohibit
You are confused, - it gave power to Congress to enforce the Amendment.
- slavery, then Congress today could re-impose it.
Re-imposing slavery would violate every other individual right protection in our Constitution.
Such an act would in affect void the whole 'constitutional contract'.
At some point there has to be a force greater than the Supreme Court.
There is. The people, [ themselves bound by their constitutional contract] are that force.
I believe that the super-majority required for passage of an amendment is such a greater force.
That 'force' cannot be used to deprive any person of life, liberty or property, without due process of [constitutional] law.
Prohibitions on liberty violate due process.
Even greater than that is the people's power to alter or abolish their form of government, by force of arms if need be.
That power cannot be used to alter or abolish our liberties, or force of arms will indeed be used.
If our Founders had been unsuccessful on the battlefield in the American Revolution, there would be no question that the monarchy was the "legitimate" government, however tyrannical it might be.
Millions would question such legitimacy. Bet on it.
Here's why not.
Miller and Layton were arrested and charged under the NFA, correct? The asked for the charges to be dismissed because the NFA violated the second amendment. They said the law was null and void.
Now, what if they were escaped convicts? What if they were felons, or illegals, or visiting foreign nationals, or 14 years old, or were previously declared insane?
The prosecution tried to argue they weren't Militia members and was ignored. What if the prosecution had argued they weren't citizens? Or they weren't sane? Or they weren't old enough? (Or whatever the law was in 1938 that protected the right to own weapons?).
Do you see my point? The court ignored all that. They didn't care WHO was arrested under the NFA. They were only interested in the weapon.
Back to your argument. If the shotgun was found to be a Militia weapon, you're saying that Miller and Layton would be acquitted even if they were illegal aliens? Or legally insane? Or escaped criminals? That all those categories of individuals have the individual right to keep and bear arms, as long as those arms are Militia-type weapons?
"If the trial is held using the Supreme Court guidance to examine the usefulness of the arms, then the jury will reach a verdict. If Miller and Layton are acquitted"
If they are acquitted, it would be by jury nullification. Only.
The LAW is clear. The LAW says nothing less than 18". If the jury thinks the law is wrong and ignores it, then that is jury nullification.
That verdict says NOTHING about individual rights. Or group rights. Or collective rights. The verdict says "we the jury know what the law says and we think the law is wrong".
If I was the defense attorney, as soon as the testimony was given showing that the weapon is useful to a Militia, I'd move to dismiss the charges. Game over. Done deal. Why go any further?
Just prior to the emancipation of slaves in the U.S., there was not a consensus that slaves were "people" as mentioned in the Bill of Rights. Instead, they were property owned by people who were pursuing their own happiness in owning such property.
The thirteenth amendment deprived them of that property. A significant number of people thought at the time that such deprivation was repugnant.
I don't agree that there will necessarily always be a consensus on what measures promote liberty or frustrate it. For that reason, I support the expectation that the words of the Constitution are the law of the land. I support having the Supreme Court to rule on what the Constitution means. I do not support having the Supreme Court ruling that the Constitution shall not be permitted to have the meaning that the people have determined for it.
If the super-majority of the people support repugnant amendments, then having the Supreme Court enforce such amendments will be the least of our problems. The greater problem will be that the super-majority has lost its way and cannot recognize what is good for them. Having the Supreme Court decide what is good for them will not remedy the situation but will make it worse.
One example is Roe v. Wade. The Supreme Court decided that it was best for the people to have a right to privacy that extended to aborting the unborn. The Constitution does not contain that protection. If it is best that the people shall have a right to abort the unborn, then the Supreme Court should expect the people to pass an amendment to that effect or to pass an amendment banning such. Lacking either, the Supreme Court has no business acting in the place of a super-majority of the people.
I have certainly never heard it argued that our Founders supported abortion or intended any clause of the Constitution to mandate its availability.
If the prosecution failed to argue to include such disabilities (which had not been legislated by 1939) and the Supreme Court did not volunteer that such distinctions are permitted, then the decision of the Supreme Court would be consistent with lack of relevance.
If the prosecution, after the Miller decision, had made a second motion to clarify what constituted "people" in the Second Amendment, I think the District Court judge would have been justified in granting a second appeal for the prosecution prior to trial, assuming that the prosecution made a good argument that Miller or Layton would probably not qualify for protection. But at the time I would guess that the District Court judge would not have recognized a relevant fact that would have disqualified Miller or Layton. Certainly the prosecution never raised the issue. That a second appeal would be needed merely makes it even more clear that the Miller decision was an individual rights decision. Even individuals such as you suggested were not ruled out for protection. Even today it requires legislation to deprive these individuals of protection.
That people who are escaped convicts have no right to keep and bear arms or any other liberty would have been obvious to the District Court judge and he would have ordered them back to prison.
Does every activity of an illegal alien in the US become a crime? Can you convict an illegal alien for reading a book in addition to convicting him of entering the country illegally? Only liberals wish to make virtually every facet of gun ownership and use legally perilous. It's nonsense.
As for the legally insane, how do you know? Those who are legally insane are routinely found "NOT GUILTY BY REASON OF INSANITY". Get it. They aren't guilty of anything because they don't know right from wrong. One need have no concern regarding the legally insane beyond how to protect them and society from harm. You can deprive a legally insane person of their liberty, but you can't find them guilty of violating NFA 34.
We were discussing the meaning of the Miller decision. It was I who made it clear that the Miller decision was tailored specifically to address the prosecution of Miller and Layton. Considerations of "equal protection" assure us that the Miller decision had relevance to many individuals besides just Miller and Layton. That does not mean that the relevance is universal. But it does mean that militia-membership is NOT relevant.
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