Posted on 02/06/2008 5:22:32 PM PST by Bob Leibowitz
time to ...well...go hot!
Excellent update, thanks B.L.
This will really make the Solicitor-General look like a pile of snot, won't it?
I disagree with them though when they claim that most gun regulations are fine from a constitutional standpoint. I think 90% of them should be tossed on the plain reading of the 2nd.
Yeah, you can tell she's running for office. I've never noticed her being particularly concerned with the Constitution generally, or the Second Amendment specifically before.
“I say Heller loses 5-4 or 6-3 with awful consequences...”
Court rulings are only as effective to the point that someone else in government is willing to enforce their decrees. Are 800,000 LEOs going to disarm 80,000,000 gun owners? Even if 99% of those 80M gun owners turn in their firearms in some sort of mass confiscation, that still leaves 1% i.e. 800,000 gun owners who will probably choose to go down fighting...the ‘aweful consequences’ you noted will indeed be truly aweful.
“I say Heller loses 5-4 or 6-3 with awful consequences...”
Court rulings are only as effective to the point that someone else in government is willing to enforce their decrees. Are 800,000 LEOs going to disarm 80,000,000 gun owners? Even if 99% of those 80M gun owners turn in their firearms in some sort of mass confiscation, that still leaves 1% i.e. 800,000 gun owners who will probably choose to go down fighting...the ‘aweful consequences’ you noted will indeed be truly aweful.
I'm of the opinion that the Miller court also blew it - but not so badly as you may think. The fact is that it recognized an individual RKBA, simply by deciding the case on its merits instead of saying "cert. denied for lack of standing." That, in and of itself, gives you an idea that the "collective right" theory is a crock of sh...stuff.
2nd, the court actually DID recognize the right to keep arms (it didn't address "bear," just as that's not really before the Heller court). The analysis and ruling was to determine if the protections of the 2nd applied to guns regulated under the '34 NFA. Here, I think, is where they blew it - the NFA is, on its face, unconstitutional. That's what the District Court ruled, and the Supremes should have just affirmed and moved on. I could stomach a version of the NFA that required all owners of guns with a military use to register them, solely for the purpose of having an idea of how large the effective militia would be if the need for its use arose - but with no tax stamps or CLEO sign-offs required at all. Oh, and no registration fees, and a FIRM guarantee that the list wouldn't be used for purposes of later confiscation (...that's right, that's what the 2nd is for...never mind). Of course, with Miller being unrepresented, the feds were free to raise damned near any issue and lie about it, which they did. Lacking "judicial notice" of certain facts, and knowing damned well that Miller was dead and wouldn't be represented, remanding it back to the District Court was a cop-out.
Still, though, the decision offers lots of hope - if one can prove that a weapon meets the Miller standard, it should be free from regulation under the '34 NFA. I frankly don't understand why no one - even today - brings a case with an M16 or M4 on that very point, but loaded to the gills with lots of evidence about the weapon's utility, common use, etc.
I think Gura has also misread "common use".
For sure. Yes, indeed, it is true that the militiamen of the 1700's were expected to show up for training or duty with the weapons that they, themselves, privately owned. Miller is correct in that sense.
It is also clear that MGs are not now (if they ever have been) in "common use" by civilians. Partly due to the newness of MGs prior to the restrictions of the '34 NFA, and partly because of the '86 ban.
So it would SEEM that MGs don't fall within the protections of the 2nd Amendment as specified by the Miller Court.
HOWEVER, something that could and should be brought to the attention of THIS Court (or any future Court that would hear a case brought to repeal 922(o)) is the following fact (backed up by appropriate evidence, of course):
The arms in "common use" by civilians in the late 1700's - the time of the Revolution, the drafting and ratification of the 2nd Amendment and of the passage of the first Militia Act - were oftentimes the equal of OR EVEN SUPERIOR TO the arms of the regular army. To wit - the Kentucky rifles of the Revolutionary Era were superior arms to the "Brown Bess" muskets that were standard issue for British infantry of the time.
As such, it can be concluded that the drafters of the 2nd Amendment understood the term "arms" to include man-portable firearms that were at least equal to - and likely even superior to - the performance of arms typically issued to the regular armed forces OF WHATEVER TIME PERIOD IN THE FUTURE a 2nd Amendment case were to come before any court.
I think in context, the Miller court meant in common military use. Since that is the use to which the militiamen were expected to put the arms they were required to show up. with. The Miller court also used that phrase "in common use" from its discussion of what constituted a militia.
I agree, see above.
Two of the backers of Kelo, including the author, supported the majority in Verdugo-Urquidez, which described the Second Amendment among other individual constitutional rights, so I don’t think that Kelo is a good gauge of how this one is going to go.
An “public use” is open to more grammatical mischief than “the right of the people” and “shall not be infringed.”
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