Hasta La Vista, 2nd Amendment

Liberty Belles ^ | Jennifer Freeman

[TERMINATTOR]

 

California Governor, Arnold Schwarzenegger, has recently reaffirmed his support for a federal ban on the private ownership of semi-automatic rifles, commonly known as the "Assault Weapons" ban. There was much debate and speculation about Schwarzenegger's position on firearms ownership prior to his being elected. This was primarily due to the fact that there was very little public information about his position on firearms. Californians were left to speculate about whether The Terminator -- the alpha male who made millions of dollars making movies in which characters used semi-automatic rifles to defend themselves -- was actually Mr. Shriver, a gun-banning politican towing the line for the Kennedy clan. Perhaps the Governor is neither an alpha male, nor a Kennedy wanna-be. Perhaps he is more like Bill Clinton in that he makes his decision based on what the polls say. And we know all how inaccurate polls can be. Whatever the reason, a person cannot support a ban on the private ownership of semi-automatic rifles and claim to uphold the Constitution. A politician cannot take away the rights of the citizens to protect themselves and claim to be for the people. A man cannot be judged as having good character, if his decisions are based on personal gain. And Californians cannot complain about gun rights while voting for a candidate who is questionable, at best, on the issue of firearm rights.

Say, "Hasta la vista" to the Second Amendment, baby!

[Ken H]

Agreed, insofar as it applies to state action. My point, however, was that this ruling eroded protections against actions by the federal government.

Yes, I agree.

From #451: Speaking of Terry's law, that case provides an excellent example of the dangers of "incorporation".

I missed your point the first time. Yes, the fact that the Fourth was incorporated is what got the case to the USSC in the first place. An unincorporated Fourth would have kept the status quo with the Feds.

So if the USSC incorporated the Second Amendment, a risk would be that they would have the opportunity to make an unfavorable ruling on a State gun case which otherwise would not have gotten before them. And with this ruling, it would not change State RKBA, but would give a green light to the Feds to infringe.

In practical terms, it seems Congress is not constrained by any Second Amendment considerations. The precedent has been set and the numerous Federal gun laws are proof. AFAIK, USSC has never struck down a Federal gun law on the basis of a Second Amendment violation.

I don't see any downside to taking the right gun case before the USSC. IMO, the ideal one would be to get a ruling on whether the Second Amendment protects the right of a citizen to have a gun in his own home and use it for self defense.

If USSC says it does, then it will have greatly enhanced the RKBA in the US.

If USSC says no, then they have basically nullified the Second Amendment.

States would be no worse off than they are now and the Feds would continue on as they have.

I happen to think it would send shock waves and galvanize supporters of the Second Amendment. What should happen next is a subject worthy of at least a thread or two.

[CBF]

Thank you for your clarification. My jibe was not aimed at you, I was merely being sarcastic on the general grounds that I can't stand these "common-sense" regulation folks.

Personally I believe it is already too late and we are on the downside of a slippery-slope. There are 3-5 mil. freedom loving people in this country that both have the means and the abiltity to stand up for those freedoms that have been so brazzenly stripped from us by Big Brother.

Have you read "Unintended Consequences" by John Ross -- a must read. If you haven't read it, find it, but it and read it.

[robertpaulsen]

"Agreed, insofar as it applies to state action. My point, however, was that this ruling eroded protections against actions by the federal government."

Yes, and erode protections from the states who choose to implement it.(ie., the citizens of the state no longer have the U.S. Constitution to turn to for relief)

Does this affect other states? No, not directly. But, my point to Ken H was, how long before other states start to implement this expanded interpretation, now that the USSC says it's OK?

[LexBaird]

A power is enforced by judicial process.

Any power includes the right to enforce it. If a state refused then armed force could be used.

A power is enacted through laws, applied through the judicial, and enforced through the executive functions.

In the end, a power is only enforced by threat of, or use of, force. Which brings us full circle as to why the powers of governments, at every level, need to be countered by the ability of the people to have some means of counter-force.

[LexBaird]

The President is charged in Art. II with protecting & defending the Constitution, and seeing that its Laws are faithfully executed.

If his administration were to establish that officials of the State of Ca are violating our 2nd Amendment, certainly he could charge those State officials with that infringement in Federal court, -- and, -- if they refused to obey a USSC order to cease, enforce an order to jail them for contempt, at the least.

Not so?

Yes, but this is not explicitly laid out in the Constitution as the method to be used for enforcement. The President is charged to "take care" that the laws are executed. By what means he achieves this is not specified.

This all comes back to mrsmith's contention that lack of explicit powers granted to the Feds to enforce the BoR somehow means that they don't apply to the States. There are other things in the Constitution that the States are held to which are not explicitly spelled out as to who should enforce them. Thus, we get into the whole sticky mess of implied powers, which is where governments always seem to pound the boundaries.

[robertpaulsen]

"the denial of the federal right too would allow judicial and legislative restrictions to be forced upon the states."

OK. I understand the "how". What about the "why"? Power grab?

[inquest]

I don't see any downside to taking the right gun case before the USSC. IMO, the ideal one would be to get a ruling on whether the Second Amendment protects the right of a citizen to have a gun in his own home and use it for self defense.

If the second amendment - and only the second amendment - were incorporated, then I could probably see your point. But that's not going to happen without incorporating the entire BOR, which could lead to the types of problems I described.

Another example would be the first amendment, and the way SCOTUS has applied it to such things as nude bars. They've claimed that the 1st protects them, but at the same time, towns may zone them. The upshot is that free speech can be "zoned" and subject to other types of regulations based on the (supposedly protected) content of the speech. That puts genuine free speech in extreme danger.

What I think would be more productive with regards to the 2nd, is to push the issue when it comes to federal law, with the goal of striking down all federal gun control statutes (which truly have no constitutional basis, even without the second amendment). This will make state-based gun control much less effective.

[tpaine]

This all comes back to mrsmith's contention that lack of explicit powers granted to the Feds to enforce the BoR somehow means that they don't apply to the States.
There are other things in the Constitution that the States are held to which are not explicitly spelled out as to who should enforce them. Thus, we get into the whole sticky mess of implied powers, which is where governments always seem to pound the boundaries.

Yep. We always "get back" to mrsmiths, paulsens, [or any other 'States Rights' goofball at FR], contentions that any power in our Constitution not specifically prohibited to the States is theirs to wield; ---- irregardless of every principle of individual liberty this Country stands upon.

To their messy minds, the authoritarian, majority rule State is always right. - It's a "sticky mess", - because to them, - that mess is a political advantage. -- It advances their cause.

FR's States Rights crowd loves it when anyone implies that our Constitution is not explicit as to its principles. It's those principles that they really hate.

[Dead Corpse]

It's those principles that they really hate.

It gets in their way. Kinda hard to subjegate a populace if they think, and act, like they are free.

These same people agree with WJC that the Founders wrotes up a system that allowed a "radical amount of freedom", and they agree with him that this is not a good thing.

[tpaine]

Ken H wrote:
I don't see any downside to taking the right gun case before the USSC. IMO, the ideal one would be to get a ruling on whether the Second Amendment protects the right of a citizen to have a gun in his own home and use it for self defense.

If the second amendment - and only the second amendment - were incorporated, then I could probably see your point.

Kens point on an individual RKBA's is valid whether the 2nd is incorporated or not.

But that's not going to happen without incorporating the entire BOR, which could lead to the types of problems I described.

I just searched in vain for your clear reasoning on why the 2nd needs to be "incorporated"; -- or for that matter, any of our rights. Can you explain?

Another example would be the first amendment, and the way SCOTUS has applied it to such things as nude bars. They've claimed that the 1st protects them, but at the same time, towns may zone them. The upshot is that free speech can be "zoned" and subject to other types of regulations based on the (supposedly protected) content of the speech.

Alright, nudie bars can be 'zoned':

-- That puts genuine free speech in extreme danger.

No, zoning nude dancing does not put my free speech in danger. -- But I would like to see you explain how you imagine it does.. Can you?

[tpaine]

FR's States Rights crowd loves it when anyone implies that our Constitution is not explicit as to its principles. It's those principles that they really hate.

It gets in their way. Kinda hard to subjegate a populace if they think, and act, like they are free.
These same people agree with WJC that the Founders wrote up a system that allowed a "radical amount of freedom", and they agree with him that this is not a good thing.

Exactly. -- Our real problem on arguing this issue on these threads is letting these clowns bog us down in the 'messy' details of legal 'reasoning'..
Much of what passes for legal reason is why we are in this mess to begin with.

[Ken H]

If the second amendment - and only the second amendment - were incorporated, then I could probably see your point. But that's not going to happen without incorporating the entire BOR, which could lead to the types of problems I described.

I thought that only the Second and Seventh remain unincorporated.

What I think would be more productive with regards to the 2nd, is to push the issue when it comes to federal law, with the goal of striking down all federal gun control statutes (which truly have no constitutional basis, even without the second amendment). This will make state-based gun control much less effective.

I am all for striking down Federal gun control laws, but I see no good reason not to go after State and local violations of the Second Amendment if a good opportunity arises.

[Dead Corpse]

Much of what passes for legal reason is why we are in this mess to begin with.

Dick the Butcher: THE FIRST THING WE DO, LET'S KILL ALL THE LAWYERS.
-Shakespeare HENRY VI Part 2, act iv: scene ii

[tpaine]

I am all for striking down Federal gun control laws, but I see no good reason not to go after State and local violations of the Second Amendment if a good opportunity arises.
472 Ken

Inquest & his cohorts will be unable to find a 'good' reason, -- but rest assured many others will be forthcoming, - in due time.

[inquest]

My point was in regards to the dangers of incorporation in general, not of any specific strategy.

[inquest]

Our real problem on arguing this issue on these threads is letting these clowns bog us down in the 'messy' details of legal 'reasoning'

Yeah, using logic on you gets you all messed up, doesn't it?

[William Tell]

Ken H said: "AFAIK, USSC has never struck down a Federal gun law on the basis of a Second Amendment violation. "

A proper reading of US vs Miller would seem to be that there is an individual right to keep and bear arms, that taxation aimed just at bearing arms is disallowed, that there is no necessity for an individual to be a member of an organized militia to have such a right, and that this right exists unless the prosecution can prove that the particular weapon is unsuited to use by a militia.

The last item is an invention of the Supreme Court as the language of the Second Amendment does not suggest that any such infringement based on suitability of arms was intended.

I am not specifically acquainted with Supreme Court decisions regarding the Second Amendment since Miller. I believe that there may not be any such decisions. The Miller decision was clear enough that I believe the court has had to decline every appeal since then or risk eliminating virtually all federal gun laws.

I would be interested to hear of any other Second Amendment case by the Supreme Court.

[tpaine]

I am all for striking down Federal gun control laws, but I see no good reason not to go after State and local violations of the Second Amendment if a good opportunity arises.
472 Ken

______________________________________

Inquest & his cohorts will be unable to find a 'good' reason, -- but rest assured many others will be forthcoming, - in due time.

Our real problem on arguing this issue on these threads is letting these clowns bog us down in the 'messy' details of legal 'reasoning'

--- [inquest] -- Yeah, using logic on you gets you all messed up, doesn't it?

What you call "logic"? -- Yes indeed, - bozo logic is REAL messy.
Get a life, and stop trying to pass yourself off as a pro gun constitutional conservative.

[robertpaulsen]

The USSC made reference to the second amendment in Adams v. Williams, 407 U.S. 143 (1972).

Refer to the comments under: "MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MARSHALL concurs, dissenting."

[William Tell]

Thanks for pointing out Adams v. Williams,407 U.S. 143 (1972).

In dissent, Marshall finds himself joining Douglas, who had been the only dissenter in the precedent setting Terry case (as in a "Terry search" for weapons) and had warned that such decisions would water down our rights.

Since Connecticut at the time of Adams v. Williams permitted carrying of firearms, Marshall and Douglas found themselves having to recognize that the discovery of a firearm on a citizen was not an indication that a crime had been committed and thus should not have been used to justify a search of a vehicle. The officer never even asked if the suspect had a permit.

At the same time, Marshall and Douglas make known their belief that the Second Amendment creates no constraint on Connecticut passing anti-gun laws even to the extent of outlawing handguns altogether. Surprisingly, they acknowledge that others would view that as watering down the Second Amendment and state: "But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment.

I would hope for Supreme Court judges who would find a way to water down none of our rights.

I find the reference to Miller erroneous in that Marshall refers to it saying:The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia".

The "lack of judicial notice" regarding the usefulness of a short-barreled shotgun caused the case to be REMANDED, not affirmed or reversed. Perhaps some first-year law student should have proof-read Marshall's dissent. My understanding is that the burden of proof would have been on the prosecution. Otherwise one would find the case right back on the Supreme Court steps with no judicial notice. That can't be what the decision meant.