DC Circuit strikes down DC gun law

How Appealing Blog ^ | 03/08/2007 | Howard Bashman

[the OlLine Rebel]

Going along with this idea, "well-regulated" not meaning "ruled" as liberals want to see it, but "equipped/armed".

[Dead Corpse]

It isn't a debate when one side is intentionally dishonest, and is deliberately attempting to alter the meaning.

Yep. On web forums, that's called "trolling". Which is about all there is to Bobby...

[ctdonath2]

Nope, it's still all available ('cept post-'86 MGs). You can get the go-boom stuff, it's just that you have to pay the $200 tax on each round. Ok, so that turns in to a practical ban...which was the point of NFA in the first place (ex.: $200 tax on a $5 MG in 1935). Only reason we tolerate NFA now is that inflation over 70+ years has brought the value of $200 down to a tolerable tax on good quality stuff (and comparably, the taxed stuff has risen in quality to warrant such prices - suppressors shouldn't be $1000, but if you're going to pay $200 tax on one you might as well get something really quiet and indestructable). If the tax had been indexed to inflation, we'd have gotten a case to SCOTUS overturning NFA already.

[Dead Corpse]

It isn't the tax that is onerous. It's the fact that there is such a small pool, relatively, of NFA weapons that a $400 rifle is going for $12000 before you start paying government fees.

Also, I need to make a correction to part of my earlier statement. Taking a look around, it turns out the Remington 870MKS is considered an AOW (All Other Weapons) and only requires a Form 4 and a $5 tax. However, it's expensive and Knights Armament won't sell 'em to just anyone. I've only found one person for far that says they were able to purchase one.

[ctdonath2]

The debate has been going on so long as some insist on redefining plain terms, in an attempt to make the sentence say something other than what it plainly says.

[ctdonath2]

You're blurring subcategories and laws.
AOWs require a $5 tax. New ones may be made.
Non-AOW, non-MG items require a $200 tax. New ones may be made.
MGs require a $200 tax. New ones may NOT be made for civvies.

NFA per se is decreasingly onerous. The tax, $5 or $200, is by inflation falling from practically prohibitive to merely obnoxious.

922(o) - often confused with NFA - bans post-'86 MGs altogether. It is ONLY full-auto things that have the limited supply, and thus are costly per high demand.

(FWIW: I have 3 NFA items.)

[zeugma]

The Brady type mind is infected with PC socialism.

True.

We have a surplus of nanny/police state supporters on this site as well. 

[KeyesPlease]

The text of 14A most certainly does not "incorporate" the BOR as applying against the states. Any such incorporation ("selective incorporation") was achieved via judicial activism and findings of "substantive due process" - yet another fiction.

My understanding of the original intent of 14A was to force states to treat citizens equally (blacks and whites for example) - even in a state's appication and enforcement of seemingly unfair state law (no person shall hold office unless he believes in God for example).

[LifeOrGoods?]

Someone with intestinal fortitude and money needs to openly bring a 'prohibited' weapon into D.C. today with the attitude of 'Go ahead. Charge me'.

I wouldn't worry about that. Plenty of the peeps on the street are already pack'n.

[NY.SS-Bar9]

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

Help me here...

I understand the BOR to be a limitation on federal government.

How would natural rights, enumerated in the constitution, be subject to violation by other government entities?

Wouldn't the "privileges or immunities" clause explicitly extend the protection of the constitution?

[robertpaulsen]

"Wouldn't the "privileges or immunities" clause explicitly extend the protection of the constitution?"

That was the thinking at the time -- the "privileges or immunities" clause would encompass the rights of the people and the states would then be obligated to protect those rights under the 14th.

That was shot down by the U.S. Supreme Court the very first time it was tried in the Slaughterhouse Cases of 1873.

"How would natural rights, enumerated in the constitution, be subject to violation by other government entities?"

As you said, the BOR only applied to the federal government. The feds couldn't prohibit free speech, for example, but states could (if it wasn't protected by the state constitution).

This is called federalism. Or, I should say, it was called federalism.

[Ken H]

Q: Wouldn't the "privileges or immunities" clause explicitly extend the protection of the constitution?

rp: That was the thinking at the time -- the "privileges or immunities" clause would encompass the rights of the people and the states would then be obligated to protect those rights under the 14th.

Agreed. That was what the 14th was understood to mean at the time it was promulgated.

That was shot down by the U.S. Supreme Court the very first time it was tried in the Slaughterhouse Cases of 1873.

IOW, the Court ruled against the original understanding.

[robertpaulsen]

"That was what the 14th was understood to mean at the time it was promulgated."

Understood by who? That wasn't the understanding of the majority of those who voted for it.

"IOW, the Court ruled against the original understanding."

Turns out they didn't.

[tpaine]

Rights, Responsibilities, and Communitarianism
Address:http://www.friesian.com/rights.htm

Here's an interesting [anti-communitarian] take on privileges & immunities from the above site:

"-- as the 14th Amendment forbids the States from passing laws "which shall abridge the privileges or immunities of citizens of the United States."
The unamended Constitution itself says (Article IV, Section 2):  "The Citizens of each State shall be entitled to all Privileges and Immunities of citizens in the several States."
"Privilege" could to be interchangeable with "liberty" or "power." The great English jurist, William Blackstone (1723-1780), whose Commentaries on the Laws of England formed the basis of American understanding of English Common Law, defines the terms thus:

The rights themselves, thus defined by these several statutes, consist in a number of private immunities; which will appear to be indeed no other, than either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals.


Thus, "immunities" tends to cover natural rights that are retained pretty much in their original form.

The right to self defense would belong in that category. On the other hand, "privileges" are rights (as powers) that substitute in a civil form for certain other natural rights which are not retained in their original form.

An example of that would be a natural right to retribution through revenge, which is surrendered for a civil power, or privilege, to seek redress for wrongs and retribution through judical proceedings.
Punishments for wrongdoing are then applied by a presumably dispassionate authority, whose judgment will not be distorted by personal grievance.
A fairly clear boundary can then be drawn between just retribution and revenge, where in the state of nature that would be very difficult.

Today "privilege" is usually contrasted with any kind of "right," in the sense that rights are natural and inalienable while privileges are granted, contingent, and revocable, as most States say that a driver's license is a "privilege, not a right"; but we see James Fenimore Cooper, in his The American Democrat, using the expression "inalienable privilege," which shows that our contrast between "rights" and "privileges" is quite recent. --"

[Ken H]

Understood by who?

The ones who were doing that "thinking at the time".

[tpaine]

"-- We have a surplus of nanny/police state supporters on this site as well. --"


Otherwise know as Communitarians.  



Rights, Responsibilities, and Communitarianism
Address:http://www.friesian.com/rights.htm


"--- A whole movement exists, billing itself as "Communitarianism," that promotes an effort to restore the notion of responsibility and to establish a balance both between rights and responsibilities and between individuality and community.

The movement is spearheaded by sociology professors Robert Bellah, in Habits of the Heart, and Amitai Etzioni, in The Spirit of Community.
Their viewpoint is shared by many others, including historian Garry Wills; and it is reflected in the title of Hillary Clinton's book on the responsibilities of government in child rearing, It Takes a Village.

Communitarians, however, promote a certain view of rights and responsibilities that is quite different from that of John Locke, Thomas Jefferson, James Madison, etc.

It is more in the tradition of G.W.F. Hegel, where the community, or the state, is more real than the individual and the individual who does not fit in with the social norms or the law is objectively irrational.

Hegel has been regarded, justly, as the father of modern totalitarianism.
How different these attitudes are comes out in the Communitarian treatment of things like seat-belt and motorcycle helmet laws. Etzioni would deny to the automobile or motorcycle rider the right to decide for themselves whether to wear seat-belts or motorcycle helmets because, if they are injured, the public is liable to end up paying for their injuries. Thus the riders have a duty to protect themselves in such a way as to not impose a burden on the public through their injuries.

This is interesting reasoning, for the denial of the right of choice about seat-belts and motorcycle helmets is really predicated on the concession of another right: that the injured riders have the right to be treated at public expense. The claim of that right is then used to deny the other [3].

The question is not even asked: do those who don't want to use seat-belts or motorcycle helmets really want their liberty curtailed for the privilege of their injuries being treated at public expense?

The consequence, then, is not that Communitarians want to balance rights and responsibilities; it is that they want to deny certain rights in favor of certain other ones, without asking whether that is the particular choice other people really want to make. ---"

[Ken H]

Justice Clarence Thomas on Privileges, Immunities, and the 14th Amendment:

[Justice Washington in Corfield, 1825] endorsed the colonial-era conception of the terms "privileges" and "immunities," concluding that Article IV encompassed only fundamental rights that belong to all citizens of the United States.4 Id., at 552.    

 Justice Washington's opinion in Corfield indisputably influenced the Members of Congress who enacted the Fourteenth Amendment. When Congress gathered to debate the Fourteenth Amendment, members frequently, if not as a matter of course, appealed to Corfield, arguing that the Amendment was necessary to guarantee the fundamental rights that Justice Washington identified in his opinion.

See Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1418 (1992) (referring to a Member's "obligatory quotation from Corfield"). For just one example, in a speech introducing the Amendment to the Senate, Senator Howard explained the Privileges or Immunities Clause by quoting at length from Corfield.5 Cong. Globe, 39th Cong., 1st Sess., 2765 (1866).

Furthermore, it appears that no Member of Congress refuted the notion that Washington's analysis in Corfield undergirded the meaning of the Privileges or Immunities Clause.

J. Thomas, Saenz v Roe, dissenting.

_______________________________

Robert Bork: [The P&I] Clause is inscrutable and should be treated as if it had been obliterated by an ink blot. --The Tempting of America 166

[tpaine]

Well, there you have it; -- imho, Justice Thomas will go down in history as one of the finest; -- and Bork will go down as one of the biggest jokes.

[robertpaulsen]

"The ones who were doing that "thinking at the time".

Both of them?

I'm saying that those who thought the 14th applied the BOR to the states thought the P&I Clause would be the vehicle for doing so. Those who thought that way were a) in the distinct minority (a handful) and b) wrong.

The overwhelming majority of those who passed the 14th did not think it applied the BOR to the states in any way, shape, manner, or form. This was confirmed by legislation they attempted to pass subsequent to the 14th (legislation that would have been unnecessary if the BOR applied to the states), the U.S. Supreme Court ruling in the Slaughterhouse Cases a mere five years after ratification (which the Congress then did nothing about), and subsequent court rulings for the next 60 years.

It was only then that activist courts starting using the Due Process Clause of the 14th (NOT the P&I Clause) to selectively incorporate the BOR. Parts of the BOR are STILL not incorporated.

[robertpaulsen]

"concluding that Article IV encompassed only fundamental rights that belong to all citizens of the United States"

Why would he conclude that? Article IV says very clearly, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

It essentially says that a state cannot treat a citizen of another state differently than their own. Guess what? The slaves were not citizens of any state. They had no privileges and immunities. And after they were freed, the states treated them exactly that way.

The 14th was passed (as part of a trilogy of amendments) to give the slaves some basic privileges and immunities -- they were declared "citizens of the United States" and were entitled to those privileges and immunities that were part of the national government.