Posted on 07/30/2004 8:17:31 AM PDT by Hillary's Lovely Legs
No ruling? Lower courts have certainly cited it incorrectly but not because there was no ruling. WE know that there was no defense, but the lower courts have never acknowledge that weakness of Miller that I am aware of.
Or to put your position more candidly-- The RKBA is a fundamental right that States may infringe.
Excluding the recent 5th Circuit ruling in Emerson, find for me one second amendment ruling where any court did not tie the RKBA to a militia.
My claim stands. You still can't tell the difference between fact and opinion, huh?
There was a ruling? Oh, please let the class know just what that ruling was.
Are you referring to Gitlow? The Supreme Court ruled in his favor, you know.
Or to put my position more truthfully-- The RKBA is a fundamental right that state legislators may or may not infringe, depending on their state constitution.
If you disagree with that statement, please show me where that has not happened.
Your unsubstantiated "claim", if that's what it was, was that my claim, that the Second Amendment differed in no distinctive way from the First and thus is incorporated by virtue of the Fourteenth, is untrue.
How do you ask that your "claim" stand when you failed to provide the distinction which such a "claim" would require for justification?
When your opinions are shown to be baseless and self-contradictory, you trot out the many anti-gun decisions which suffer the same lack of logic.
Then you accuse others of mixing opinion and fact.
The FACT that the courts have allowed infringements of the Second Amendment is challenged by nobody on this thread. What is challenged is the nonsense that passes for justification.
You have agreed to the fact that the Miller decision was flawed and that the grammar of the Second Amendment does not justify their constraint of the right by the dependent clause.
When challenged to justify the non-incorporation of the Second Amendment by virtue of the Fourteenth, you have provided NOTHING. Erroneous court decisions are not justifications. If you wish to use the arguments of such erroneous court cases, then you must adopt their "reasoning" no matter how shallow and illogical or provide reasoning of your own.
Otherwise, it will be you once again who confuses opinion with fact.
Yours is a truly Orwellian view of the role of government and what limitations are imposed through the consent of the governed.
Your view would seem to be that anything which is not forbidden to government is permitted. This turns the notion of limited government on its head and requires the people at every turn to actively constrain government despite the lack of any explicit authority on their part to act.
Yours, unfortunately, is a common view and necessary for the adoption of socialism. Without the power to act in any matter whatever, the government would find itself unable to control events and constrain freedom.
Legislators who infringe the right to keep and bear arms without the explicit power to do so are tyrants. A Constitution which would permit such infringement is an instrument of tyranny.
There was no Miller decision.
"and that the grammar of the Second Amendment does not justify their constraint of the right by the dependent clause."
I said it was different. Hey, maybe those other decisions were "flawed".
"The FACT that the courts have allowed infringements of the Second Amendment is challenged by nobody on this thread."
I see. I cite case after case after case, and you just sit there and type, "flawed, flawed, flawed". That's the sum total of your debate.
Well, if that's the very best you can come up with, then maybe the courts are right and you're wrong. That possibility ever occur to you? It sure has to me, I'll tell you.
My "claim" is that the courts (excl. the 5th) have ruled that the RKBA in the second amendment is tied to a militia. It has nothing to do with incorporation. Keep it straight.
I have stated that it was not incorporated. I have cited the process of incorporation. I have stated why I believe the second amendment should remain unincorporated.
But I was never "challenged" to justify why the second amendment wasn't incorporated. Write a letter to the USSC and ask them why they haven't incorporated it. I certainly don't know, and without knowing, how can I possibly justify that decision?
Challenged to justify, indeed. Just like you to ask such a question.
This is the function of a state constitution. Then we have a legislature where bills are voted on by representatives of the people. The bill is then signed by the Governor and made law. The law must survive court challenges. What is your problem with that?
I bet you're in favor of the FSP, right? Oh yeah, I bet you are.
I bet you're a big believer in the right of a group of similarly-minded individuals getting together in one state to decide how they will live. If they live the way you want, that is.
But if they decide they want to live in a state without machine guns, oh, watch out. That's not allowed. They must allow that.
I bet you'd like to make it a law that people must own guns. Not that you'd admit it.
Freedom is a real problem for you, I guess.
Are you suggesting that it would be permissible to re-enslave black people if a simple majority of the people decide to do that?
At least finally we see that you are a "majority rules" guy and that arguing for limitations on government control are not to be tolerated. If a legislature passes a law and the courts allow it then that is a good thing.
The serious question which remains is; why are you on FreeRepublic? Who here, besides you, agrees with that philosophy of government which suggests that anything desired by the majority is to be allowed?
What really seems to set you apart is your willingness to tolerate the incorrect ruling of the Miller court despite your own understanding of the grammar of the Second Amendment. You don't seem to know what you think until some court decision tells you what to think.
You have expressed surprise that I might find virtually every court decision flawed regarding the right to keep and bear arms. Why don't you tell us what court decisions you find flawed? Have there been any? Or are you just fine with all decisions, even those in conflict?
You recently agreed that the Miller court SHOULD NOT have constrained the right to keep and bear arms based upon the dependent clause. Don't you see any consequences to the court having ruled in error? Would it not have been preferable for them not to have ruled in error? Would it not be preferable for the present court to correct that error?
I would prefer that tyranny to that which we have.
You asked my opinion. I said that the USSC in Miller questioning the weapons relationship to a milita seemed to indicate that the USSC was tying the two clauses together. We'll never know since there was no ruling. I said that if they were, that this was inconsistent with other similar non-second amendment cases.
Forget about Miller. It clarifies nothing. One would still have to explain why every federal lower court (save the 5th) has tied the two clauses together.
"Why don't you tell us what court decisions you find flawed?"
Why don't you want to stay on topic?
I've found quite a few decisions flawed, even calling for the impeachment of judges, much to the consternation of some FReepers on this board. You have no idea what you're talking about.
" Who here, besides you, agrees with that philosophy of government which suggests that anything desired by the majority is to be allowed?"
Gotta lie to make your point?
Anything desired? No, it must be constitutional. By the majority? No, we live in representative republic. Our lawmakers vote, and the majority rules.
Have you got a better idea? Maybe we should make you King?
No, you said more than that.
Post 462 by robertpaulsen: "You are correct, it shouldn't."
The lower courts tying the RKBA to militias cite Miller and interpret it improperly to the extent that some require militia membership. Even Miller did not suggest that there was any "judicial notice" missing other than the usefulness of the weapon.
The entire house of cards built by anti-gunners revolves around Miller. Even you, robertpaulsen, provided no distinction which would prevent a correct reading of the Second Amendment from being incorporated via the Fourteenth. Then you wave your hands as if Miller doesn't matter.
Your recent claim that there was no "ruling" in Miller is quite laughable. Please consult your legal experts on the possibility of a remand without a ruling. A remand is an order for a lower court to rule again. To do so without guidance is to suggest that the same ruling would be possible. Please cite any other remand in the history of the republic without a ruling.
The convenient error in Miller must be sustained by the Supreme Court in order to prevent the collapse of the house of cards. They can only do this by denying cert. They dare not attempt to "interpret" the Second Amendment the way Miller did.
Then it must be of extreme importance for the courts to rule according to the Constitution. And when the Supreme Court and lower courts improperly constrain the RKBA due to the dependent clause in the Second Amendment, as you have agreed they shouldn't, then it has consequences for rule by constitution.
I don't have to be king to want the courts to correct errors which both of us admit they have made.
Today, federal law forbids the manufacture of some rifles due to inclusion of a bayonet lug, a solid piece of metal weighing about an ounce. Such is the expected consequence of unConstitutional decisions.
Your repeated claim that people like myself only have to accomplish a Constitutional amendment to set things aright is nonsense if the courts are free to rule despite the constitutional provisions which already constrain them.
It is a personal weapon. The second amendment gives law abiding citizens the right to own them. The second amendment is not about hunting or shooting skeet.
As far as what most people use them for. The answer is long range recreational target shooting.
Well, what was the ruling? This is like the second or third time I've asked.
Well, what was the ruling? This is like the second or third time I've asked.
"You are correct, it shouldn't."
You left out my explanation. "You are correct, it shouldn't (because) in other non-second-amendment cases, the courts have ruled that these clauses do not limit the meaning. For some reason, the courts are treating the militia clause of the second amendment as limiting (ie., the individual RKBA is dependent on an association with a militia)(post #490)."
What is that reason William Tell? I don't know, but I'd like to find out.
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