Posted on 09/15/2005 7:12:34 PM PDT by Dan from Michigan
FEINGOLD: Let's go to something else then. I'd like to hear your views about the Second Amendment, the right to bear arms. This is an amendment where there's a real shortage of jurisprudence.
You mentioned the Third Amendment where there's even less jurisprudence, but the Second Amendment's close. So I think you can maybe help us understand your approach to interpreting the Constitution by saying a bit about it.
The Second Amendment raises interesting questions about a constitutional interpretation. I read the Second Amendment as providing an individual right to keep and bear arms as opposed to only a collective right. Individual Americans have a constitutional right to own and use guns. And there are a number of actions that legislatures should not take in my view to restrict gun ownership.
FEINGOLD: The modern Supreme Court has only heard one case interpreting the Second Amendment. That case is U.S. v. Miller. It was heard back in 1939. And the court indicated that it saw the right to bear arms as a collective right.
In a second case, in U.S. v. Emerson, the court denied cert and let stand the lower court opinion that upheld the statute banning gun possession by individuals subject to a restraining order against a second amendment challenge.
The appeals court viewed the right to bear arms as an individual right. The Supreme Court declined to review the Appeals Court decision.
So what is your view of the Second Amendment? Do you support one of the other views of the views of what was intended by that amendment?
(Excerpt) Read more at washingtonpost.com ...
...I can't believe an elected official had the gall to say that in public...
I groaned when I read that too. If that wasn't an invitation for the court to step in, I don't know what is.
The funny thing is I agree with him. The Court should get involved and throw out every $%^#$ gun restriction law on the books.
But that is not where Fiengold was going here. He is suggesting the court should look at the collective vs indivdual argument, which is a non starter to anyone who understands what the 2nd Amendment is there for. It could not be any clearer.
Here we disagree completely. The court discussed "who is the Militia" and found no reason to exclude Miller. They could have refused to consider the case on "standing" which I believe is one of the first tests that a case must pass.
The court will refuse to hear cases from parties which lack standing because they do not wish to make rulings based on the circumstances of parties who are not affected by their decisions. The prosecutors who appealed the lower court decision could have counseled the Supreme Court to deny cert on standing grounds, but I see no indication that they did so.
Fair enough, but could you explain for me how registration or training would violate the 4th or 5th amendment?
The 4th protects you from unreasonable search and seizure of property, and the requirement for warrants for search and seizure. So for registration or training to violate the 4th, you would have to define them to be unreasonable, it would seem. I fail to see that registration or training would be unreasonable. You still would have the right to own a gun, and its not being taken from you, so it doesn't appear to be a violation of the constitution. Now using registration records to seize guns is *clearly* unconstitutional unless you have probable cause to believe that weapon was used in a crime.
As for the 5th, the only portion I see that could remotely be used to argue against registration or training would be the clauses requiring due process of law and preventing private property from being taken for public use without compensation. Again, the arguments seem to fall short, for registration and training can easily fall within due process, as that can be defined as "legal judgement of peers" - which if the peers decide registration and training are required, you are afforded. Furthermore, registration and training does not result in the taking of private property for public use, so that falls flat.
I still don't see how either registration or training would violate the 4th or 5th amendment. Note that I'm not arguing that they are necessarily effective or needed - just that they don't appear to be unconstitutional.
And I certainly agreed with your point on peoples' abilities to drive safely (I said as much in the previous post). I nearly got into a wreck yesterday when someone turned left from the far right lane at a stop light, clear across 3 lanes of traffic, with not so much as a signal.
"Honestly, registration has always lead to confiscation. "
Which is exactly the point people should be making to argue against gun control (though I do get tired of everything being a "slippery slope"). The fact a law may be useless or lead to bad results further down the line does not make it unconstitutional....
I think that you narrow the protection needlessly. I see no indication whatever that our Founders meant to limit the arms protected. Private individuals could and did own the equivalent of warships at the time of our nations founding and the Constitution includes mechanisms for permitting the use of such arms during time of war.
The "arms" used to expel the government's navy from Boston Harbor were "stolen" from Fort Ticonderoga, a government stronghold, by the "militia" consisting of non-government rebels, and were dragged through the winter snows to surround Boston. To suggest that future generations would have no protection for owning such arms and would have to steal government arms is to misunderstand completely what our Founders had to accomplish.
It may be reasonable today to limit the arms, but it should require a Constitutional amendment to create such limitations.
I hope you keep on posting on this site.
I'm tired of the folks who wait for the US Supreme Court to tell them which rights they have been granted.
The US Constitution limits the power of the government. It does not grant us rights. Our alienable rights were granted by a Higher Power when we were created.
I disagree completely. The wording of the decision makes it quite clear that "every male physically capable of acting in concert for the common defense" was expected to appear carrying his own arms. That very clearly included Miller. The "collective right" was invented as a smokescreen by lower courts to hide the facts of the ruling, but the ruling is not badly worded. I believe that later courts wanted to support the "collective rights" interpretation but there was no way to rule on a relevant case without revealing the lies of the lower court.
What was badly decided by the Miller court, was that the Second Amendment includes some implied limitation based on the Militia clause.
A well-educated electorate being necessary to the continuance of a free country, the right of the people to keep and read books shall not be infringed.
The sentence above does NOT suggest that there is only one reason for the right, and it does not suggest that the government gets to decide which books are protected and which aren't, and it does not suggest that only voters are protected. The Supreme Court invented a "use" test but all they really needed was a definition of "arms" and "people".
Excellent post. Welcome to FR.
Exactly. It is perfect as written and should not be open for interpretation.
As for all the $%^#$ gun restriction law on the books....all I can say is..."What part of 'shall not be infringed' is unclear?"
The courts have invented tests which they apply to regulatory schemes based on the area being regulated. Driving a car, or its Founding era equivalent of driving a cart or piloting a ship, is an activity which can reasonably benefit from regulation without infringing a protected right.
The lowest level of "test" only requires the slightest possibility that a regulation might be useful. The regulation needs to be unambiguous and needs to pass, probably, some degree of due process so that people can understand the law and obey it. There are not many laws which fail to meet this test.
When examining a law which attempts to regulate a protected right, the courts will use a "strict scrutiny" test. This, I believe, is the most restrictive test. When this test is applied, the regulations must meet several criteria. One is that the regulation must be the least intrusive. If there is some other less intrusive way to accomplish the purpose, then the regulation cannot stand. Most importantly, the purpose of the law must be met by the law. It IS the burden of the government to demonstrate that there is value to the law.
Most of these judicial processes were worked out during the civil rights era and applied to such things as poll taxes and poll tests. Any benefit that such regulations might achieve were found to be completely outweighed by the right of people to elect their own representatives.
Here in the People's Republic of Kalifornia, I have helped with an initiative drive attempting to add a "right to keep and bear arms" to the Kalifornia Constitution. At the time of Kalifornia's founding, the people "in charge" had little desire to mandate that people of spanish or native American descent have an enforceable right to keep and bear arms.
The language of the proposed amendment spells out that every limitation to the right must meet the criteria of "strict scrutiny". It just isn't practical to list every hare-brained anti-gun law on the books or attempt to exclude every possible future law. The term "strict scrutiny" requires the government to prove the usefulness and limited invasiveness of every gun law.
What about my question regarding the registration of your books. There might be some usefulness to such a thing, you know. The Patriot Act includes the ability to search library records, I believe. We are already on the slippery slope. Have a nice ride.
You do know what a Right is don't you? A simple litmus test is, if you don't have to ask anyone else's permission, it's a Right.
As for how the 4th and 5th apply... My papers, including licenses, are MY property. Admitting that the government has a just power to control my Right to Keep and Bear Arms violates self incrimination. Do reporters need to be licensed for free speech? Do you need training to worship your God?
Get real...
I look to Tench Coxe as the person who wrote the best interpretation on the subject,
I'd just love to have a pair of colt six-shooters on my hips...just like when I was a kid.
He can say it, he is just to smart to say it during the confirmation hearings.
Well...sinkspur and all. Careful there.
I can't speak for collectivist countries that hand out collectivist rights and wrongs at their collectives.
You are correct but if you read the Miller case, the wording suggests that the basis of the individual right to the 2nd Amendment is based on "weapons of the type of military service." This leaves out quite a large group of firearms types but ironically includes the guns that Congress in it's infinite lack of wisdom decided to ban in 1986. Go figure.
Mike
Yes, and I think that this aspect of Miller is entirely wrong for the reason I stated.
What would be interesting to know is what the "remand" in Miller actually did. This would appear to be a direction to the court of initial jurisdiction to try the case rather than dismiss on Second Amendment grounds.
Then it would appear that the prosecution, not the defense, would have the burden of proving that one element of the crime, that is possessing a weapon that is NOT of use to the Militia, had been committed. I don't see how the burden could fall on the defense.
That's an excellent point. The onus of proof is supposed to be on the accuser not the defendant. Can this possibly be reviewed by the USSC again since that the decision is somewhat confusing to some and for the reason that the defense had no representation?
Mike
Howard Dean of all people supports gun rights. I haven't seen his position recently but back when he was running for the nomination he seemed to be fairly strong on 2nd A rights. Extrememly strong for a damned democrat.
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