Why You Should Care About Parker v. District of Columbia

Townhall.com ^ | May 1, 2007 | Sandy Froman

[robertpaulsen]

In those six states, their individual RKBA is protected by state statutes, not the second amendment.

In California, for example, this was confirmed in Silveira v Lockyer.

[Dead Corpse]

Not surprising. Some people are heavily invested in the way the current legal system operates. If things were as they are written in the Constitution, their jobs probably wouldn’t exist.

[robertpaulsen]

"So you are saying that the states can pass laws restricting your speech"

That's the way the BOR was written, yes, and that's the way it was for 150 years.

Then activist courts started using the 14th amendment to incorporate some of the BOR and make them applicable to the states. The second amendment still has not been incorporated. Nor the third. Nor the seventh. Nor the grand jury clause of the fifth.

[Dead Corpse]

Silveira V Lockyer supposedly "confirmed" that there was no Individual Right. That is was a "collective" State "Right".

This is in direction contravention of what the Founders wrote and passed.

[robertpaulsen]

"but yet someone that claims to be conservative thinks it applies to states only."

I have posted that the vast majority of lower federal circuit court decisions have stated that the second amendment protects the ability of the states to form a Militia from federal infringement. So far, two have claimed it protects an individual right.

"RP thinks that the Miller decision backs him just because of all the militia references, even though they don’t say that it does apply to milita in the decision."

The Miller court backs no one. They remanded the case to the lower court, asking for clarification. The Miller court implied, however, that only Militia-type weapons are protected by the second amendment.

[Dead Corpse]

The Parker decision addresses Miller. It also points out where the 9th circuit was wrong in Silveira.

[looscnnn]

“The Miller court implied, however, that only Militia-type weapons are protected by the second amendment.”

Only in your mind.

[Bryan24]

IMO, here is one of the STRONGEST arguments for the individual right to keep and bear arms.

Amendments to the Constitution

CONSTITUTION OF THE UNITED STATES OF AMERICA, PROPOSED BY CONGRESS, AND RATIFIED BY THE LEGISLATURES OF THE SEVERAL STATES, PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL CONSTITUTION (See Note 12)

Article [I.]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article [II.]

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Article [III.]

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Article [IV.]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article [V.]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Article [VI.]

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Article [VII.]

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Article [VIII.]

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Article [IX.]

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article [X.]

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

[Bryan24]

I would like to see this argument explored and commented on....

The First and Fourth Amendments are recognized by the government as being nearly absolute. The only recognition of limitations is pretty much for safety of the populace as a whole (can’t yell “FIRE” in a crowded theatre, etc...)

Here in Alabama, there is a bill that has been introduced by a liberal lesbian legislator that would place a huge license tax on any firearm. Essentially, the move would be to tax guns out of ownership. WE expect this ball to fail spectacularly. But.....

Here’s my question - Can you tax a constitutional right?

Can the government erect a fence around a church and charge admission? No.

Can the government place muzzles on people and force them to pay in order to freely speak? No.

Can the government prohibit you from owning a firearm? If the Parker case gos to the SCOTUS and they say “No, it is an individual’s right”, then....

Can the government pass an exhorbitant tax that will deny you the right to own a firearm?

[William Terrell]

But if it does, what do you predict will happen AFTERwards?

Concealed carry is stripped away, state by state. Forced registration of guns next. Ban on all guns next, with grace periods for turn, probably sweetened with a small buyback. Then local LEO's sent to confiscate guns, legal house searches, possibly dynamic entry in the wee hours. Heavy prosecution of those who use guns held back for protection. Bans on cartridges and reloading equipment.

All the while emotionally captivating stories as movies and television episodes, novels and news/print media.

Once the legal bans and confiscation are finished, about two years, governmental programs will escalate, SS will be heavily regulated, confiscatory taxation or more than one kind. those who have the will to resist with weapons they retained will be dealt with.

Legalization of drugs, with calming type drugs being easy to get commercially.

Final merge into a governed region within a world government, steps taken thereto while above is happening.

It's the way I would do it, were I a tyrannical asshole assured in my heart of my rightness to rule and my benevolence toward the great mass who do not think and cannot take care of themselves.

[Freedom_Is_Not_Free]

I laugh at the raw ignorance of this kind of thinking, that the Constitution only limits federal power.

Even a child could tell you that the 13th Amendment means that no person can own a slave, not that only the federal government can’t own slaves.

Look at the 5th amendment. When someone like paulson ignorantly claims that the BoR only limits federal power, he conveniently ignores that fact that NO court can make you give incriminating testimony in a city, county or local court because the 5th Amendment to the US constitution protects that right. He would have us believe that only federal courts would be prohibited from making defendants self-incriminate, while local courts could require it.

Or that the ruling in Roe v. Wade only prevented the federal government from abolishing abortion, while cities, counties and states are entirely free to do so.

These deluded, ignorant people are clueless in their sad belief that the constitution limits federal power while the states, cities and counties can run rough-shod over our civil rights.

I grieve for the nation in light of such an uninformed electorate as paulson.

[Freedom_Is_Not_Free]

The individual right to own and carry guns identified in the 2nd Amendment is indisputable. It is just a matter of many in government, schools, the media and liberal institutions ignoring that inconvenient fact. Since so many have been screaming for so long that it is only a collective right, they have brainwashed many in the masses that must be so.

All one has to do is read a bit about the constitution and the framers and the fact is obvious. Your well documented example, comparing the individual rights listed in the various Amendments, is obvious to anyone who is impartial.

We can only hope that the courts will one day recognize the fact.

[Dead Corpse]

Well yeah... but according to Paulsen it was ok for Marshall to legislate from the bench and change the plain meaning of the Constitution in Marbury.

The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both. William Rawle 1829.

The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government. St. George Tucker. 1803

George Mason, the guy who WROTE the Bill or Rights had this to say as an Objection to the Constitution:

There is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several States, the Declarations of Rights in the separate States are no security. Nor are the people secured even in the enjoyment of the benefit of the common law. Mason. 1788.

Anyone denying that RKBA is an individual Right protected by the Second Amendment from infringement at any level of Government, is either a traitor or a moron on par with the Holocaust deniers.

[robertpaulsen]

"It also points out where the 9th circuit was wrong in Silveira."

I'm sure it does. Just as Silveira pointed out where the 5th Circuit was wrong in Emerson.

You got a point?

[Dead Corpse]

Parker also mentions Emerson and points out where the 5th didn't go far enough.

My point is the same it has always been. Any "infringement" of RKBA is unConstitutional. The idiot laws and legislation from the bench you keep parroting are all criminal actions as far as I'm concerned.

[robertpaulsen]

"Can the government pass an exhorbitant tax that will deny you the right to own a firearm?"

Can they pass a high tax on a particular firearm (or firearms) to discourage and limit possession? Yes. The did that with the 1934 National Firearms Act. It's still in force.

[robertpaulsen]

"Look at the 5th amendment."

All right. Let's look at the 5th amendment. It says (in part), "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ..." Which means, according to you, that states must indict via a grand jury for a capital crime.

"Although the Due Process Clause guarantees petitioner a fair trial, it does not require the States to observe the Fifth Amendment's provision for presentment or indictment by a grand jury."
-- ALEXANDER v. LOUISIANA, 405 U.S. 625 (1972)

Oh, I see no reason why you should be allowed to get away with your name calling. Especially when I'm right.

[Dead Corpse]

The NFA of ‘34 was only even “marginally” Constitutional when it was only a tax. Imposing the registration requirements, then outlawing registration of new machine guns, makes it a blatant “infringement”.