Posted on 05/08/2008 7:02:15 AM PDT by NewJerseyJoe
May 5th, 2008; Washington Township, NJ
FOR IMMEDIATE RELEASE
Media Contact: Robert Kreisler
In a stunning first-of-its-kind announcement, the New Jersey Coalition for Self Defense (NJCSD) predicts that the Supreme Court Of The United States (SCOTUS) will confirm an individual right interpretation of the 2nd Amendment in Heller vs. DC, foreshadowing an end to decades of acrimonious debate over the meaning of what is widely considered to be a core principle for many Americans.
Using an advanced market research method known as a KJ analysis (named after its creator, Kawakita Jiro) a team of five analysts independently reviewed the statements made by the Justices during testimony in the Heller vs. DC case to arrive at this conclusion. The KJ method was developed as a way to examine complex problems where differing interpretations may exist and has become popular in business for its effectiveness.
The project was conceived and led by Joe Ficalora of SBTI Inc., a Texas-based management consulting firm. This is the first known time such an analysis has been applied to a contemporary legal issue and represents a groundbreaking implementation of this method. “Though we've been painstaking in our analysis, there’s always the remote possibility we may be surprised,” said Ficalora. “However, my experience indicates that the Supreme Court will confirm an individual right interpretation. I’m willing to stake my reputation on this in public, and in front of my colleagues in this industry.”
For many years, anti-gun factions have argued that an earlier decision by the Supreme Court in US vs. Miller established that the 2nd Amendment implied a collective right, meaning that private citizens had no individual right to own or carry firearms for self-defense or home protection.
“We're relieved that the hard facts point to what we've known all along - that the Right to Keep and Bear Arms is a personal right guaranteed to the American people as our legacy of freedom, preserved for us by our Founders and does not apply solely to the military or National Guard as some mistakenly believe," said Robert Kreisler, President of the NJCSD. “While we don’t mean to be presumptuous by leading the Supreme Court with this announcement, it is important to give America hope that our nation has not swung hopelessly toward socialism and that there are still those who support a traditional view of our Constitution and the liberties it was intended to enshrine through all ages.”
Arthur Rosbury-Yoder, NJCSD’s Executive Director, added, "This is just one example of the out-of-the-box kind of thinking we try to do at the NJCSD. Our organization exists to overcome the fear and ignorance perpetuated by liberals and socialist zealots who appear determined to eliminate our natural rights and by a mass media by a liberal bias against core principles of liberty, especially when it comes to gun rights and self-defense. When was the last time you heard the media put out a positive gun story of any kind?”
The New Jersey Coalition for Self Defense is a not-for-profit organization which has a focus on self-defense and Second Amendment rights. For more information please visit www.njcsd.org or call 877-690-5460.
What I am immensely more concerned about is how they will interpret "shall not be infringed".
The courts have long held that our rights are subject to "reasonable restrictions", such as free speech not allowing for yelling fire in a crowded theater.
I suspect that few will argue that incarcerated felons have a right to keep and bear arms in their jail cells, but I suspect there will be a lot of disagreement over what restrictions can be placed on keeping and bearing arms by law abiding citizens.
Like you, I have always wondered what the phrase “shall not be infringed” means. The Second Amendment is the only place in the Constitution where that phrase appears so it would seem to have significant meaning for the Second Amendment only. Many would agree with reasonable restrictions on our rights, e.g, Freedom of Speech will not protect someone from libel or slander; age and residency requirements to vote, etc. But to me “shall not be infringed” has special meaning for the Second Amendment. But what does it mean? What is an arm? Is it a firearm only, not other weapons? I would guess that in this case the USSC will not address the “shall not be infringed” phrase.
Whoa! This IS stunning. I don't believe the NJCSD has ever been so bold!
Plus, Joe Ficalora of SBTI Inc. (yes, THAT Joe Ficalora) is staking his reputation on it. Doesn't he realize how much he, personally, has to lose making a statement like that if he's wrong?
I'm .... speechless. I'm going to go lie down.
LOL
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
They can uphold it and gut it at the same time. Easy as taxidermy.
Anybody who LISTENED to the judges comments could have told you that. Didn't take any 'advance market research' to figure this out.
Taken as it is written without modifiers it means that everyone is free to keep and bear arms. There can be no interference- by any entity- of that right to possess and carry brass knuckles, tasers, pistols, or thermonuclear devices. Historically that has included any available arms during the first century of the republic and individual citizens did, indeed, own cannons.
If he is wrong we all lose a lot and it will cause considerable contention and strife in the fairly near future.
there should be no restrictions on the type and amount of firearms a private citizen should keep ( note i did not say can keep, but should keep ) the second amendment was written to allow citizens to be able to overthrow a rogue government gone astray. That means that any weapon our military uses, it is our duty to possess also. see tagline
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Legally, does abridged mean the same as infringed? An argument for lawyers but common sense tells me they mean essentially the same, the basic right cannot be abridged, limited, infringed, etc., but some restrictions are allowed, e.g. libel, slander, etc. If that is the case what common sense restrictions would apply to the Second Amendment?
What my gut tells me is that a law abiding person has the right to own a firearm; pistol, rifle, shotgun. Like the Right to Vote, certain persons, like felons, give up their rights based upon certain actions. Not very clear with a lot of gray area. For instance, the Right to Vote has an age limitation. Should such a limitation apply to the Second Amendment and still not be an infringement?
Legally, does abridged mean the same as infringed? An argument for lawyers but common sense tells me they mean essentially the same, the basic right cannot be abridged, limited, infringed, etc., but some restrictions are allowed, e.g. libel, slander, etc. If that is the case what common sense restrictions would apply to the Second Amendment?
What my gut tells me is that a law abiding person has the right to own a firearm; pistol, rifle, shotgun. Like the Right to Vote, certain persons, like felons, give up their rights based upon certain actions. Not very clear with a lot of gray area. For instance, the Right to Vote has an age limitation. Should such a limitation apply to the Second Amendment and still not be an infringement?
Does your tagline refer to the Green Bay Packers?
If he is wrong, everything goes back to the way it was before the lawsuit.
Granted, some residents of Washington, DC won't be too happy, but they can always elect another City Council who will vote their way -- if they have the numbers.
The Court's ruling will be very interesting. I listened to the oral arguments online (I am an attorney, but not a 2nd Amendment expert), and they spent some time pondering whether "keep and bear" is two things or one, and what the phrase means. No attorney responded, as I would have, that "keep" means retain ownership of, and "bear" means carry. Both are essential to the right, as each one alone is empty and meaningless. If I can own a firearm but never use it, what good is the right? And, if I can use a forearm, but cannot own one, I can't even fathom how that would work.
One thing the justices seemed to agree upon was that the "arms" contemplated by the Second Amendment pertained to muskets and pistols, but not canon or other heavier weapons. Who knows how they will apply it to 21st Century firearms? I am betting this will form the basis for an argument against "automatic weapons" being covered by the right. And you can forget about RPGs, tanks, jet fighters, bombs, nukes, etc.
Status quo ante is way to optimistic if the Court gives the green light to the antigunners and we get a Democrat government in November.
Yes, but only through individual due process in a court of law. The fifth amendment reads, "No person shall be deprived ..." We may find a man guilty and take away his fundamental right to liberty by locking him up, but we may not lock up "all those under 18" or "all males".
Also, neither the federal government nor any state government currently recognizes the right to keep and bear arms as a fundamental right. That may change with this ruling.
And for just as many years, it has been argued quite persuasively (from facts on the record, not 'opinions'), that the US vs Miller decision was based entirely on fraud on the prosecutions' part.
Well, I do.
And I'm not a lawyer.
If the 5th amendment was intended to allow "due process" (as vague and arbitrary a phrase as can be invented) to cancel out all the other amendments, including itself, I can only quote Oliver Hardy and repeat, "What a revolting development this is!"
Every time I see this, I am reminded of the bulletproof wording of this Constitutional restriction. It allows NO qualifications whatsoever.
Yet, several instances of the federal government's gross violation of this right have occured, without challenge, where the feds allow the state court to try a crime and, if the verdict is "un-PC", to try the same crime, albeit it under a fraudulent different name in federal courts.
Maybe the definition has changed over the decades, but I thought "keep" originally meant "upkeep" or "maintain" and "bear" originally meant "to carry into battle".
Also, I thought that "keep and bear" was a phrase like "cruel and unusual" or "necessary and proper", and was not meant to have separate meaning. Maybe it does today.
Exactly, I do not think that “shall not be infringed” refers to a type of weapon, like a grenade or bomb, but rather to the right in itself.
While I grew up in South Carolina and have never been to Wisconsin, I have loved the Packers since I was a small boy. It has always been my dream to go to Lambeau for a homegame. I would love to see the Pack play the Bears sometime around the 2nd or 3rd Sunday in October. That would be heaven! Problem is, I don’t think I could ever afford the tickets. So what I will probably do is get tickets for an exhibition game instead. Still, it will Lambeau and the Pack!!
Well, that's the sort of verbal legerdemain that the anti-gun hysterics employ.
I believe no such thing.
THAT’s The way I see it. Plain and simple. Don’t need a lawyer or judge to interpret any part of the 2nd
>I AM a huge Packers fan —<
Unless you’re over 250 pounds, I’d say that you’re an average fan. Huge would need to be somewhere over 400 lbs.
The Founding Fathers qualified many of the rights in the Constitution for a reason. Read it. There are conditions under which Habeas Corpus can be suspended. They can take private property for public use with compensation. They can deprive a person of life, liberty, or property with due process. It's a product of compromise and a pragmatic understanding of how governments work, not the magical libertarian document of absolutes that many people imagine it to be.
Even fundamental rights, like speech, may be reasonably regulated by Congress. The right to keep and bear arms is no exception.
Is there a reason why you think an exception for this right above all others should be made?
See the 2nd A. in the middle column of the following page from the Congressional Globe, a precursor to the Congressional Record.
http://tinyurl.com/y3ne4nThe page referenced above is one of Bingham's discussions of the 14th A., Bingham being the main author of Sec. 1 of that amendment.
Given that the USSC actually decides DC v. Heller in favor of DC, then the USSC is due, actually long overdue, for a peaceful overthrow. Lincoln put it this way.
"We the People are the rightful master of both congress and the courts - not to overthrow the Constitution, but to overthrow the men who pervert the Constitution." --Abraham Lincoln (Political debates between Lincoln and Douglas), 1858.
I understand your point, but to be precisely true:
Fundamental rights are subject to a strict scrutiny standard, not just a reasonable standard. This means [from Wiki]:
To pass strict scrutiny, the law or policy must satisfy three prongs:
1. First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.
2. Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (over-inclusive) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.
3. Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this ‘least restrictive means’ requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.
I would be very, very happy—would probably jump for joy—if the SC held that the right to keep and bear arms is a fundamental right [which it should do].
Correct. The founders wanted to protect the state Militia from federal infringement in no uncertain terms. There are no limitations or restrictions in the second amendment and none are necessary.
However, if one interprets the second amendment as protecting an individual right outside of the Militia, well, that leads to the discovery of limitations and restrictions on arms and keeping and bearing that I don't see.
I agree with you. The second amendment should be formally amended if, for example, "arms" are to be limited to semi-auto rifles, shotguns and hanguns.
If they did, then they'd probably incorporate it and make it applicable to the states -- something we might regret.
Once incorporated, the SC interprets it for all states. For example, the first amendment is incorporated. The SC said nude dancing is "speech" and is therefore protected. All states must honor that interpretation. Ditto abortion -- allowed. Flag burning -- allowed. Under God -- nope. Nativity scenes at Christmas Winter Festival - nope.
Now, imagine 5 liberal justices on some future SC stating that "arms" don't include handguns. Or "bear" doesn't include concealed carry. Or "keep" means in a state armory.
Hey, if they can find abortion in a penumbra of an emanation, they can find anything.
It clearly does. Not with "the citizens". Not with "all persons".
"I think it's hard to read "people" as anything but an individual right."
Let's accept that. Then how do you read "arms" for these individuals? I see no limitation.
“Abridged” deals with words.
“Infringed” deals with actions.
Arms = anything and everything
Small arms fire = squad machine guns, crew-served weapons, rocket propelled grenades.
Basically everything
If the right to bear arms is not absolute, then government will try anything and everything they can to make it harder to own arms. And I’m talking about an anti-aircraft gun on your roof if you so desire (and can afford it).
If the citizen militia was to "execute the Laws of the Union, suppress Insurrections and repel Invasions", you feel they could do this with arms limited to those which a person could bear?
I guess I don't understand what you're saying. Does the second amendment protect an individual right for self defense or was it written to protect the right of the citizens, collectively, to form a well regulated (organized and armed) state militia?
It seems like you want to say it does both, but then you're forced to come up with a definition of "arms" that I don't see in the second amendment. Perhaps if it said "firearms" I might agree with your interpretation.
To me, a reasonable regulation of a fundamental right is a law which passes a strict scutiny test. A reasonable regulation of a non-fundamental right is a law which passes a rational basis review.
I think it's intended to do both because (A) the distinction between the two was not as large as it is today and (B) the Constitution before the 14th Amendment did not bind states in the same way that it did after the 14th Amendment, thus allowing states to work out the distinctions we are trying to work out at a federal level.
One page I looked at, since you are demanding specifics, says that "bearing arms" was often a euphemism for going to war. That suggests a militia interpretation with local control. Remember that the Constitution also requires that Congress reauthorize the Army every 2 years because it opposed the idea of a central standing army. In fact, the Virginia Declaration of Rights in 1776 (a predecessor of the Bill of Rights) states, "That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."
But the 2nd Amendment also protects a person's right to keep arms, which suggests allowing people to take arms home with them. From a pragmatic standpoint, I would argue that during the period when this was written, it would be assumed that a person would take a firearm home with them and hang it over the mantle but not keep a canon in their barn.
And I suppose I should point out, again, that the Constitution opposed the idea of a standing army. I don't think the Founders intended people to take canons (or tanks or bombers) home to fight the government but expected the government to not have a large standing army with canons (or tanks or bombers) that the people would have to fight if they needed to go after the government. It's not practical to allow private citizens to own weapons that can do the sort of damage required to overcome a modern army but as the Founders designed the Constitution, there shouldn't be a modern standing army for them to have to overcome.
If so, then it's awkward to define "arms" without going through some contortions and finding some hidden definition in the second amendment that just isn't there (eg., "arms" are weapons that are carried).
"the Constitution before the 14th Amendment did not bind states in the same way that it did after the 14th Amendment"
While it's true that some amendments in the Bill of Rights were "incorporated" under the 14th, the second amendment was not.
"But the 2nd Amendment also protects a person's right to keep arms, which suggests allowing people to take arms home with them."
It protects the right of "the people" to keep arms, yes.
"I don't think the Founders intended people to take canons (or tanks or bombers) home to fight the government but expected the government to not have a large standing army with canons (or tanks or bombers) that the people would have to fight if they needed to go after the government"
True. But the people were expected to "repel invasions", and an invading army would have them. The second amendment had to protect large weapons also.
Correct. The plan was to have well regulated state Militias -- they were deemed "necessary to the security of a free state".
But that changed after the War of 1812 when is was found that the concept was a failure -- most militia members showed up unarmed and untrained.
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