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EMERSON & THE SECOND AMENDMENT
Fiedor Report On the News #272 ^ | 5-12-02 | Doug Fiedor

Posted on 05/11/2002 10:23:17 AM PDT by forest

Quite a number of us have been following the U.S. v. Emerson case pertaining to the Second Amendment. Therein, the federal trial court judge wrote one of the finest decisions ever to come out of a federal criminal court -- which tracked perfectly with the original intent of all of the Founding Fathers when they approved the Constitution and later the Bill of Rights.

However, the decision was appealed.

Alas, although the Fifth Circuit Court of Appeals agreed with the lower court that the Second Amendment protects an individual right of the people to keep and bear arms, they reversed that part of the lower court's decision which benefited Emerson.(1) So, Emerson appealed to the U.S. Supreme Court. The Supreme Court is now considering if it will hear the case.

Lawyers speak to the Court through their briefs and last May 6 was the deadline for filing them. In a nutshell, attorneys for Emerson are petitioning the Court to hear the case. Attorneys representing the federal government do not want the Court to hear it.

Last year, in a letter to National Rifle Association, Attorney General John Ashcroft said that the Second Amendment confers the right to "keep and bear arms" to private citizens, and not just to the "well-regulated militia" mentioned in the Amendment's preamble. "While some have argued that the Second Amendment guarantees only a 'collective' right of the states to maintain militias, I believe the amendment's plain meaning and original intent prove otherwise," Ashcroft wrote.

It would be kind of hard to support our Constitution and the intent of the Founding Fathers without agreeing with that. So, Ashcroft's letter got a lot of hopes up around the country. But "saying" it and actually enforcing it are two different things. So, we waited. Meanwhile, people were still being arrested around the country for unconstitutional and archaic gun laws.

Finally, last week, the Attorney General, via two U.S. Supreme Court briefs filed by Solicitor General Theodore B. Olson, tied actions to his words. Sort of, anyway.

As Linda Greenhouse reported in The New York Times May 7: "The Justice Department, reversing decades of official government policy on the meaning of the Second Amendment, told the Supreme Court for the first time late Monday that the Constitution 'broadly protects the rights of individuals' to own firearms.

"The position, expressed in a footnote in each of two briefs filed by Solicitor General Theodore B. Olson, incorporated the view that Attorney General John Ashcroft expressed a year ago in a letter to the National Rifle Association. Mr. Ashcroft said that in contrast to the view that the amendment protected only a collective right of the states to organize and maintain militias, he 'unequivocally' believed that 'the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms.'"

Linda Greenhouse was exactly correct. That is what was filed in both Emerson and another case. Unfortunately, "unequivocally" is not exactly what Ashcroft or Olsen intended. Unequivocal would mean that they support the words "shall not be infringed" in the Second Amendment with "no doubt or misunderstanding" and the meaning is "clear and unambiguous."

The words "shall not be infringed" are unequivocal to many of us. "Shall not" is rather clear and needs no explanation to anyone outside of a government office. However, public officials want tight control over the people. Therefore, the Justice Department does not think of our right to keep and bear arms as a "right." Rather, to them it is an inconvenient "privilege" that must be strictly regulated by capricious bureaucrats.

Justice does not want Emerson to be heard by the Supreme Court simply because they know the Court is going to take a very dim view of many gun laws and may wipe our hundreds in one opinion. One only need read Justice Thomas's opinion concurring with the majority in the 1995 U.S. v. Lopez(2) case for a hint. We are sure the Justice Department knows Lopez quite well. Congress tried to regulate guns via the Commerce Clause. But, the Supreme Court did not buy it.

Justice Thomas wrote: "While the principal dissent concedes that there are limits to federal power, the sweeping nature of our current test enables the dissent to argue that Congress can regulate gun possession. But it seems to me that the power to regulate 'commerce' can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States. Our Constitution quite properly leaves such matters to the individual States, notwithstanding these activities' effects on interstate commerce. Any interpretation of the Commerce Clause that even suggests that Congress could regulate such matters is in need of reexamination."

With that in mind, let's examine some of the Solicitor General's argument filed in Emerson:

"In its brief to the court of appeals, the government argued that the Second Amendment protects only such acts of firearm possession as are reasonably related to the preservation or efficiency of the militia. The current position of the United States, however, is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse."

That's ten steps in the correct direction, to be sure. But, it most certainly is not "unequivocal" support of the Second Amendment. The Amendment clearly says "shall not." That is greatly different than restricting "possession of types of firearms" as the government wants to continue.

So, saying that the Emerson Appeals Court decision reflected the kind of narrowly tailored restrictions by which that right could reasonably be limited, the Solicitor General requested the Supreme Court to turn down the appeal.

If the government keeps control over our "right" to keep and bear arms, that right, then, becomes degraded to but a privilege.

It was the intent of the Founding Fathers that the American people shall have the unequivocal right to keep and bear arms and that government "shall not" interfere with that right. That intent was for personal arms one may "bear." Not cannon, howitzers, Apache helicopters, or tanks. Small arms only. Therefore, for small arms made to carry, there should be no restriction by government whatsoever.

To do otherwise is to violate the Constitution, as written. Because, restrictions would violate what Ashcroft called "the amendment's plain meaning and original intent" of the Founding Fathers. What the words "shall not" mean is that the right to keep and bear arms is an absolute right that government may not violate for any reason. As inconvenient as that may seem to our socialist tainted minds nowadays, that was the intent.

The Justice Department wants to have it both ways. That is why we expect the Supreme Court to seriously consider hearing Emerson -- and we hope they do.

-----------------------------

1. http://laws.findlaw.com/5th/9910331cr0.html

2. http://laws.findlaw.com/us/000/u10287.html

 

 END


TOPICS: Activism/Chapters; Constitution/Conservatism; Culture/Society; Editorial; Government
KEYWORDS: 1shallnotmeans; 2unequivocally; 3notprivilege; archaicgunlaws; banglist; billofrights; guncontrol; interpretation; lopez; originalintent; secondamendment; supcrtemerson; viewfedgov; viewpeople
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In U.S. v. Emerson the federal trial court judge wrote one of the finest decisions ever to come out of a federal criminal court -- which tracked perfectly with the original intent of all of the Founding Fathers when they approved the Constitution and later the Bill of Rights.

The words "shall not be infringed" are unequivocal to many of us. "Shall not" is rather clear and needs no explanation to anyone outside of a government office. However, public officials want tight control over the people. Therefore, the Justice Department does not think of our right to keep and bear arms as a "right." Rather, to them it is an inconvenient "privilege" that must be strictly regulated by capricious bureaucrats.

The Justice Department wants to have it both ways. That is why we expect the Supreme Court to seriously consider hearing Emerson -- and we hope they do.

1 posted on 05/11/2002 10:23:17 AM PDT by forest
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To: *Bang_list
Check the Bump List folders for articles related to and descriptions of the above topic(s) or for other topics of interest.
2 posted on 05/11/2002 10:25:54 AM PDT by Free the USA
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To: forest
"That intent was for personal arms one may "bear.""

If the courts rule this way, it would open the right to bear machine guns. And why not? Maybe not for concealed carry, but ownership. And, maybe? Or am I going a little overboard here?


3 posted on 05/11/2002 10:47:43 AM PDT by robertpaulsen
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To: forest
Here, in a nutshell, is the hypocrisy of the 'Ashcroft decision':

-- the Solicitor General requested the Supreme Court to turn down the appeal.
If the government keeps control over our "right" to keep and bear arms, that right, then, becomes degraded to but a privilege.
It was the intent of the Founding Fathers that the American people shall have the unequivocal right to keep and bear arms and that government "shall not" interfere with that right.

Thus, we see that the Bush administration IS attempting to 'interfere', by urging the USSC to ignore the Emerson appeal.

Incredibly, many here at FR are swallowing this 'line', as a great stand on principle. -- It is not. -- It is a political ploy, a call for 'business as usual'. - With a sugar tit coating of platitudes for us gun nuts.

4 posted on 05/11/2002 10:59:26 AM PDT by tpaine
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To: forest
http://www.freerepublic.com/forum/a3b55b0ec0b93.htm

The Unabridged Second Amendment

Published: September 13, 1991 Author: J. Neil Schulman

If you wanted to know all about the Big Bang, you'd ring up Carl Sagan, right? And if you wanted to know about desert warfare, the man to call would be Norman Schwartzkopf, no question about it. But who would you call if you wanted the top expert on American usage, to tell you the meaning of the Second Amendment to the United States Constitution?

That was the question I asked Mr. A.C. Brocki, Editorial Coordinator of the Los Angeles Unified School District and formerly senior editor at Houghton Mifflin Publishers -- who himself had been recommended to me as the foremost expert on English usage in the Los Angeles school system. Mr. Brocki told me to get in touch with Roy Copperud, a retired professor of journalism at the University of Southern California and the author of "American Usage and Style: The Consensus".

A little research lent support to Brocki's opinion of Professor Copperud's expertise.

Roy Copperud was a newspaper writer on major dailies for over three decades before embarking on a distinguished seventeen-year career teaching journalism at USC. Since 1952, Copperud has been writing a column dealing with the professional aspects of journalism for "Editor and Publisher", a weekly magazine focusing on the journalism field.

He's on the usage panel of the American Heritage Dictionary, and Merriam Webster's Usage Dictionary frequently cites him as an expert. Copperud's fifth book on usage, "American Usage and Style: The Consensus", has been in continuous print from Van Nostrand Reinhold since 1981, and is the winner of the Association of American Publishers' Humanities Award.

That sounds like an expert to me.

After a brief telephone call to Professor Copperud in which I introduced myself but did "not" give him any indication of why I was interested, I sent the following letter:

*** "July 26, 1991

"Dear Professor Copperud:

"I am writing you to ask you for your professional opinion as an expert in English usage, to analyze the text of the Second Amendment to the United States Constitution, and extract the intent from the text.

"The text of the Second Amendment is, 'A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.'

"The debate over this amendment has been whether the first part of the sentence, "A well-regulated Militia, being necessary to the security of a free State," is a restrictive clause or a subordinate clause, with respect to the independent clause containing the subject of the sentence, "the right of the people to keep and bear Arms, shall not be infringed."

"I would request that your analysis of this sentence not take into consideration issues of political impact or public policy, but be restricted entirely to a linguistic analysis of its meaning and intent. Further, since your professional analysis will likely become part of litigation regarding the consequences of the Second Amendment, I ask that whatever analysis you make be a professional opinion that you would be willing to stand behind with your reputation, and even be willing to testify under oath to support, if necessary."

My letter framed several questions about the text of the Second Amendment, then concluded:

"I realize that I am asking you to take on a major responsibility and task with this letter. I am doing so because, as a citizen, I believe it is vitally important to extract the actual meaning of the Second Amendment. While I ask that your analysis not be affected by the political importance of its results, I ask that you do this because of that importance.

"Sincerely,

"J. Neil Schulman"

***

After several more letters and phone calls, in which we discussed terms for his doing such an analysis, but in which we never discussed either of our opinions regarding the Second Amendment, gun control, or any other political subject, Professor Copperud sent me the following analysis (into which I've inserted my questions for the sake of clarity):

***

[Copperud:] The words "A well-regulated militia, being necessary to the security of a free state," contrary to the interpretation cited in your letter of July 26, 1991, constitute a present participle, rather than a clause. It is used as an adjective, modifying "militia," which is followed by the main clause of the sentence (subject "the right," verb "shall"). The right to keep and bear arms is asserted as essential for maintaining a militia.

In reply to your numbered questions:

[Schulman: (1) Can the sentence be interpreted to grant the right to keep and bear arms "solely" to "a well-regulated militia"?;]

[Copperud:] (1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people.

[Schulman: (2) Is "the right of the people to keep and bear arms" "granted" by the words of the Second Amendment, or does the Second Amendment assume a preexisting right of the people to keep and bear arms, and merely state that such right "shall not be infringed"?;]

[Copperud:] (2) The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia.

[Schulman: (3) Is the right of the people to keep and bear arms conditioned upon whether or not a well-regulated militia is, in fact, necessary to the security of a free State, and if that condition is not existing, is the statement "the right of the people to keep and bear Arms, shall not be infringed" null and void?;]

[Copperud:] (3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence.

[Schulman: (4) Does the clause "A well-regulated Militia, being necessary to the security of a free State," grant a right to the government to place conditions on the "right of the people to keep and bear arms," or is such right deemed unconditional by the meaning of the entire sentence?;]

[Copperud:] (4) The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia.

[Schulman: (5) Which of the following does the phrase "well-regulated militia" mean: "well-equipped," "well-organized," "well-drilled," "well-educated," or "subject to regulations of a superior authority"?]

[Copperud:] (5) The phrase means "subject to regulations of a superior authority"; this accords with the desire of the writers for civilian control over the military.

[Schulman: If at all possible, I would ask you to take into account the changed meanings of words, or usage, since that sentence was written two-hundred years ago, but not to take into account historical interpretations of the intents of the authors, unless those issues can be clearly separated.]

[Copperud:] To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: "Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged."

[Schulman: As a "scientific control" on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence, "A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."

My questions for the usage analysis of this sentence would be,

(1) Is the grammatical structure and usage of this sentence, and the way the words modify each other, identical to the Second Amendment's sentence?; and

(2) Could this sentence be interpreted to restrict "the right of the people to keep and read Books" "only" to "a well-educated electorate" -- for example, registered voters with a high-school diploma?]

[Copperud:] (1) Your "scientific control" sentence precisely parallels the amendment in grammatical structure.

(2) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation.

***

Professor Copperud had only one additional comment, which he placed in his cover letter: "With well-known human curiosity, I made some speculative efforts to decide how the material might be used, but was unable to reach any conclusion."

So now we have been told by one of the top experts on American usage what many knew all along: the Constitution of the United States unconditionally protects the people's right to keep and bear arms, forbidding all government formed under the Constitution from abridging that right.


I love the well schooled-electorate analogy. I have used it several times with gun control nuts and have shut them down time and time again!

5 posted on 05/11/2002 11:01:33 AM PDT by Bommer
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To: robertpaulsen
We have always had the right to bear automatic weapons. -- It was infringed by unconstitutional 'regulations'.
6 posted on 05/11/2002 11:03:48 AM PDT by tpaine
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To: robertpaulsen
Naw, if it's a firearm and you can carry it, I think it's protected under the 2nd!
7 posted on 05/11/2002 11:17:32 AM PDT by M. T. Cicero II
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To: forest
Justice Thomas wrote: "While the principal dissent concedes that there are limits to federal power, the sweeping nature of our current test enables the dissent to argue that Congress can regulate gun possession. But it seems to me that the power to regulate 'commerce' can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States. Our Constitution quite properly leaves such matters to the individual States, notwithstanding these activities' effects on interstate commerce. Any interpretation of the Commerce Clause that even suggests that Congress could regulate such matters is in need of reexamination."

Good point.

8 posted on 05/11/2002 11:19:30 AM PDT by Roscoe
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To: tpaine
A test of the government's sincerity is probably the regulations concerning pilots and screening of passengers. Gun laws also involve natural law and the ability of self- preservation.

Power and the ability to lose that power due to an armed, aroused, citizenry has more bearing on your average politician than any rights involved.

The street gangs have helped create the conditions for gun control in the cities, but it is the personal responsibility for individuals to protect themselves instead of leaving that duty to law enforcement.

9 posted on 05/11/2002 11:22:44 AM PDT by meenie
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To: forest
bookmark
10 posted on 05/11/2002 11:39:11 AM PDT by IronJack
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To: Bommer
Great post! Now, let's assume that SCOTUS agrees (which is what we all would like). Exactly what weapons would qualify? Given the underlying intent of the Second Amendment (taking back the government), wouldn't this open the argument for comparable weaponry? What about concealed carry?

Here's my point. When presented with such a list, whatever it looks like, what will be the reaction of the 21st century American public? A public which has been conditioned over the years to ban even drawings of guns in schools? If SCOTUS comes down with a decision giving us what we want, gun owners will be treated like smokers and taxed/regulated into obscurity. For example, high license fees, high taxes on bullets (or powder, primers, etc), shutting down practice ranges, or increasing lawsuit activity.

11 posted on 05/11/2002 12:17:01 PM PDT by robertpaulsen
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To: robertpaulsen
My personal opinion.
A submachine gun or machine gun is a regular infantry type weapon, and should be available to any citizen of the U.S..
Likewise, an M-60, or 50 cal should be available.
I would even include the right to use silencers, and ownership of sawed off shotguns, which, historically were modified and used since their inception.
Sawed off shotguns were included with machine guns in Miller (39) because it was not a "military" weapon as defined by the courts.
Evidence was not included showing the use of such shotguns as "trench brooms" during WW1.
Likewise, the advent of the machine gun occured just after WW1, and was not used as a military weapon until WW2, and was therefore not included as a military weapon.
It's also interesting to note that Miller was about interstate transport and taxes, and that the 2nd amendment was actually a secondary issue. ( Attacking the 2nd amendment through the "back door", so to speak. )

Just my opinion.

12 posted on 05/11/2002 1:01:53 PM PDT by Drammach
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To: Drammach
I concur, and that's probably a reasonable list (I don't know about the silencers, though).

Now, here's where it gets dicey. When the Brady bunch holds up, or demonstrates, these weapons to the American public, what will be the reaction?

13 posted on 05/11/2002 1:11:11 PM PDT by robertpaulsen
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To: Roscoe
Our Constitution quite properly leaves such matters to the individual States,..

I would disagree as to this being a good point, with the exception of the opinion concerning the commerce clause.
Justice Thomas concludes, (or infers) that it is the provence of the individual states to determine what rights are given to citizens concerning the right to keep and bear arms.

The 2nd amendment simply (and rightly ) states, "shall not be infringed".
Take a look at the 1st amendment. " Congress shall not..."
Or, several articles of the constitution itself, " the states are prohibited ", "congress is prohibited", etc.
Likewise, the 9th and 10th amendments.

It is clear, that when a power is granted or prohibited, the party granted said power, or prohibited from exercising said power, is Expressly Specified.
In the case of the 2nd amendment, the prohibition of infringement is ALL ENCOMPASSING.
Neither Congress, Judiciary, Executive branch, The States, nor EVEN THE PEOPLE, can infringe upon the right to keep and bear arms.

14 posted on 05/11/2002 1:21:26 PM PDT by Drammach
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To: robertpaulsen
What will she hold up in her hands that won't get her locked up for violating a current law? [snicker. No reply necessary]
15 posted on 05/11/2002 1:27:11 PM PDT by Shooter 2.5
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To: robertpaulsen
Why don't we, the Gun Rights defenders do it first?
With OUR SLANT on these guns?
Let's hold them up, and demonstrate them first, and show how they can be used properly, in defense of self, home, country, and beat them to the punch?

Gun Rights Defenders are as bad as the Israelis vs. the Palestinians, ( Republicans vs. Democraps ) when it comes to public relations.

I see interviews on the Talking Head Shows debating gun rights, and it seems the chosen gun defender is always a bumbling fool, that is totally unprepared for the debate, and never challenges obvious lies and twisting of facts from the opposition.
The spokesman for the Brady bunch invariably makes the Gun Rights spokesman look like a fool.

We need a good Public Relations firm to take hold of the issue, and put prepared, informed spokesmen out there to present the case for Gun rights.

16 posted on 05/11/2002 1:31:11 PM PDT by Drammach
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To: Bommer
Vary interesting - thanks.
17 posted on 05/11/2002 1:35:30 PM PDT by patton
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To: Roscoe
Thomas said:

---- "seems to me that the power to regulate 'commerce' can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States. Our Constitution quite properly leaves such matters to the individual States", ---

Leaving unsaid, of course, the obvious fact that states are required to conform to constitutional basics when regulating 'such matters'. -- It would not occur to Thomas that weirdos like you, roscoe, --- would think otherwise.

18 posted on 05/11/2002 1:36:53 PM PDT by tpaine
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To: Drammach
The 2nd amendment simply (and rightly ) states, "shall not be infringed"

"The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress." -- US Supreme Court, U.S. v. Cruikshank, 92 U.S. 542 (1875), Presser v. State of Illinois, 116 U.S. 252 (1886)

19 posted on 05/11/2002 2:54:54 PM PDT by Roscoe
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To: Drammach
"Likewise, an M-60, or 50 cal should be available."

Possibly not since these are crew served, not individual, weapons. Almost all "machine guns" are crew served. But, not all fully automatic weapons are "machine guns".

If you're going to argue for an "individual right" then it could be argued that right protects individual, not crew served, weapons.

20 posted on 05/11/2002 3:02:46 PM PDT by DugwayDuke
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To: Roscoe
The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress." -- US Supreme Court, U.S. v. Cruikshank, 92 U.S. 542 (1875), Presser v. State of Illinois, 116 U.S. 252 (1886)

The above antiquated, statist view of the RTKBA's is exactly the one so elegantly rebuked by 'Emerson'.
--- Which the current administration does NOT want argued for some strange reason.

-- Why do you approve of our state governments having the capability to infringe the 2nd, Roscoe?

21 posted on 05/11/2002 3:55:16 PM PDT by tpaine
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To: DugwayDuke
If you're going to argue for an "individual right" then it could be argued that right protects individual, not crew served, weapons.

Sure, you could argue that point. -- But why do you want to?

-- There are, & always have been, many privately owned cannons, for instance. Why would you argue to prohibit their ownership?

22 posted on 05/11/2002 4:03:07 PM PDT by tpaine
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To: tpaine
rebuked by 'Emerson'

Quoteless. Sourceless. Citeless. False.

Naturally.

23 posted on 05/11/2002 4:03:14 PM PDT by Roscoe
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To: Roscoe
'Emerson' is available to read on the web.

You have my permission to do so.

24 posted on 05/11/2002 4:15:45 PM PDT by tpaine
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To: tpaine
'Emerson' is available to read on the web.

Yet you can't find anything there to support your position. Why do you suppose that is?

25 posted on 05/11/2002 4:19:00 PM PDT by Roscoe
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To: Roscoe
Oh, you 'forgot', naturally, to answer this question. -- Or is it that you can't? ---

-- "Why do you approve of our state governments having the capability to infringe the 2nd, Roscoe"? - #21

26 posted on 05/11/2002 4:20:27 PM PDT by tpaine
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To: tpaine
"The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress." -- US Supreme Court, U.S. v. Cruikshank, 92 U.S. 542 (1875), Presser v. State of Illinois, 116 U.S. 252 (1886)

Read and learn.

27 posted on 05/11/2002 4:22:22 PM PDT by Roscoe
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To: Roscoe
Remember roscoe, - you have the strange position that the 2nd can be infringed, not I.

Emerson clearly holds, and the amendment itself clearly says that the peoples right shall not be infringed. - Period.

By ANY form of government. -- Get that fact through you gun-grabbing brain.

28 posted on 05/11/2002 4:28:02 PM PDT by tpaine
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To: tpaine
Emerson clearly holds...

...nothing contrary to Presser or Cruikshank, which is why, as always, you can't find any quote in support.

29 posted on 05/11/2002 4:32:52 PM PDT by Roscoe
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To: Roscoe
Emerson clearly holds, and the amendment itself clearly says that the peoples right shall not be infringed. - Period. -- By ANY form of government.

...nothing contrary to Presser or Cruikshank, which is why, as always, you can't find any quote in support.

You own silly quote says that ONLY congress is forbidden to infringe. How lame.

30 posted on 05/11/2002 4:40:10 PM PDT by tpaine
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To: tpaine
Emerson clearly holds, and the amendment itself clearly says that the peoples right shall not be infringed. - Period. -- By ANY form of government.

No quote, naturally.

Justice Thomas wrote: "While the principal dissent concedes that there are limits to federal power, the sweeping nature of our current test enables the dissent to argue that Congress can regulate gun possession. But it seems to me that the power to regulate 'commerce' can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States. Our Constitution quite properly leaves such matters to the individual States, notwithstanding these activities' effects on interstate commerce. Any interpretation of the Commerce Clause that even suggests that Congress could regulate such matters is in need of reexamination."

31 posted on 05/11/2002 4:43:45 PM PDT by Roscoe
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To: Roscoe
>>>>>>>Round we go<<<<<<<<

Thomas said:

---- "seems to me that the power to regulate 'commerce' can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States. Our Constitution quite properly leaves such matters to the individual States", ---

Leaving unsaid, of course, the obvious fact that states are required to conform to constitutional basics when regulating 'such matters'. -- It would not occur to Thomas that weirdos like you, roscoe, --- would think otherwise. - #18

32 posted on 05/11/2002 4:50:50 PM PDT by tpaine
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To: Roscoe
Yeah and isn't it clever the way the founders spelled out the second amendment then in the tenth amendment left the rest to the states.

Bill of Rights, know what it means??? Doubt it.

No quote needed.

33 posted on 05/11/2002 4:54:45 PM PDT by snooker
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To: snooker
Bill of Rights, know what it means???

Restrictions on the powers delegated to the federal government by the Constitution.

That was easy.

34 posted on 05/11/2002 5:03:26 PM PDT by Roscoe
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To: snooker
You're gonna need a bigger club than a snooker stick to beat any sense into roscoes thick head.

But thanks for trying. - I need all the help I can get with this clown.

35 posted on 05/11/2002 5:03:59 PM PDT by tpaine
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To: tpaine
states are required to conform to constitutional basics

A basic Constitutional law is consistent and clear on the point.

"The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress." -- US Supreme Court, U.S. v. Cruikshank, 92 U.S. 542 (1875), Presser v. State of Illinois, 116 U.S. 252 (1886)

36 posted on 05/11/2002 5:05:28 PM PDT by Roscoe
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To: Roscoe
Your 'record' has a crack in it. -- Spare us your mania.
37 posted on 05/11/2002 5:10:13 PM PDT by tpaine
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To: tpaine
Hysterical ignorance is poor courtroom strategy.
38 posted on 05/11/2002 5:12:16 PM PDT by Roscoe
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To: Roscoe
What is your position on state laws regulating firearm ownership?
39 posted on 05/11/2002 5:22:32 PM PDT by timm22
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To: timm22
"To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws." -- John Adams
40 posted on 05/11/2002 5:26:07 PM PDT by Roscoe
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To: timm22
What is your position on state laws regulating firearm ownership?

----------------------

As you can see, roscoe is in favor of ALL laws so 'regulating'.

41 posted on 05/11/2002 5:49:35 PM PDT by tpaine
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To: DugwayDuke
WRONG-O, mate. Individually carried a M-60 for years, as a paratrooper. Weighed 23.8 pounds, plus 7 lb./hundred rounds.

Carried all by my wittle self.

Me, an' my Machine-Gun...

42 posted on 05/11/2002 7:09:48 PM PDT by patton
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To: Roscoe
Ever read the 14th? If the fed can't infringe, neither can the states.
43 posted on 05/11/2002 7:15:12 PM PDT by patton
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To: tpaine; Roscoe; snooker
Unfortunately, Roscoe was correct. Originally, the Bill of Rights applied to the federal government only. All the States had their own Bill of Rights.

Later, things changed. The 14th Amendment was passed and a whole slew of Supreme Court cases began to impose the federal Bill of Rights on the States. The last memorable such case was Roe v. Wade where the 9th Amendment's right to privacy became enforceable in all States equally.

We will not argue that here but, suffice to say, the Federal Bill of Rights now apply within all States equally.

We can assume the Second Amendment part to be true just by the attitude taken by the Attorney General in this matter. Why in the world would he even speak on the matter if his rules only applied on federal lands? That would be a complete waste of time on his part. No, there's more to this than just that. A LOT more!

If I wished to do a few hours research, I could probably make a good argument for both sides of this matter. However, based on many Supreme Court cases (Lopez and Printz are the latest) that included firearms in one aspect or another, it becomes obvious that the Court realizes that the Second Amendment applies equally in all areas of the country.

Or, if they do not, they are going to have to do some damn fancy writing to work around past decisions.

Personally, I think that if this Court (in its present configuration) does hear Emerson, Justice Thomas will be charged with writing the 5-4 majority opinion. His excellent concurring opinions in the Tenth Amendment, Commerce and gun rights cases are already historic and leave little doubt what the outcome will be.

Which means, to keep a majority, we will probably not get everything we want. But, the right to keep and bear arms will be enforced equally throughout the nation for all law abiding citizens. Problem is, there is no telling what Congress will do about limiting that "right" afterwards.

44 posted on 05/11/2002 7:17:22 PM PDT by Doug Fiedor
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To: Doug Fiedor
We will not argue that here but, suffice to say, the Federal Bill of Rights now apply within all States equally.

Incorporation has been limited and selective.

45 posted on 05/11/2002 7:20:37 PM PDT by Roscoe
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To: patton
Ever read the 14th?

Ever been to traffic court?

46 posted on 05/11/2002 7:21:45 PM PDT by Roscoe
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To: Roscoe
No.
47 posted on 05/11/2002 7:24:03 PM PDT by patton
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To: patton
If you ever go, ask for a jury trial on a parking ticket.
48 posted on 05/11/2002 7:26:34 PM PDT by Roscoe
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To: Roscoe
So John Adams wanted us to be armed as individuals for self defense but not to form our own militias. That is easy to understand.

If you're looking for another source to back up your assertion that the states can regulate firearms as per their constitutions check with Don Kates via his website. He is a pre-eminent 2nd ammendment lawyer and a criminologist and he agrees with you. I don't agree with him because the Bill of Rights lists natural rights of the people (10th includes states as well as individuals) that are guaranteed to everyone. I think (last time I checked) everyone includes all the people in all the states. As an example, I don't think the states can pass a law that abridges or violates the 1st ammendment inre. the freedom of speech as per the 14th ammendment.

I can disagree with you without calling you names though.LOL

I believe that once the SCOTUS rules in favor of Emerson's view of the 2nd ammendment, or even a broader interpretation of individual rights our side can then use the Equal Protection clause to keep the states from starting to walk all over gun owners.

This is from Don Kates' website donkates.com I normally begin presentations like this with two points, one of which is denounced by the NRA, the other by Handgun Control. The first point is that the Second Amendment permits many kinds of gun control, including some that as a criminologist I think are useless. I spent 20+ pages of an article in the MICHIGAN LAW REVIEW on this point[1], which the NRA has described as "Orwellian Newspeak."[2] (I am not going to further discuss it today, except to admit that there are highly credible constitutional scholars who think I overstate how much gun control the Amendment allows.[3])

My second point is that what the Amendment does guarantee is the right of every law abiding, responsible adult to possess arms. Now you are doubtless familiar with claims that the Amendment does not guarantee individuals anything, but only guarantees states the right to have armed militias. Such claims are not just wrong; they are so patently wrong that they would not be publishable except that they support results many very influential people want, regardless of truth. One proof of this is to just look at the authors. Without exception, every published opponent of the individual right view is an anti-gun advocate, most of them being employed by anti-gun groups. In contrast, many of the scholars who accept the individual right position do so solely because it is historically correct even though they themselves have never owned a gun, don't like guns and would prefer a disarmed society.[4]

49 posted on 05/11/2002 7:42:36 PM PDT by TheErnFormerlyKnownAsBig
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To: big ern
Doesn't Emerson deal with an alleged violation of 18 U.S.C. § 922(g)(8)(C)(ii)?
50 posted on 05/11/2002 7:46:13 PM PDT by Roscoe
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