Posted on 07/16/2007 8:03:08 AM PDT by ctdonath2
Local government officials in Washington, D.C., decided on Monday to appeal to the Supreme Court in a major test case on the meaning of the Second Amendment. The key issue in the coming petition will be whether the Amendment protects an individual right to have guns in one's home.
Is there any reason to expect the Supreme Court to do anything other than write a very narrow decision dealing with some very specific details of the case at hand? My expectation would be that the Supreme Court will provide that DC must acknowledge the application of the plaintiff who had applied for a permit and was denied, but will find that the other plaintiffs lack standing.
The collective right argument makes no sense against the states. Would they prohibit themselves from arming their own militia?
Many states have constitutional language similar or identical to the second amendment's language. They can't possibly be protecting their own right to arm their militia against their own infringement.
OTOH, if the second amendment is shown to protect an individual right, then those state constitutional provisions must also protect an individual right.
Actually, it didn't find that it wasn't suitable--merely that it could not presume it was suitable without a trial court making a finding of fact on the matter. The bottom line on U.S. v. Miller is that the case was remanded to trial court for further proceedings; had the case actually been brought to trial Miller/Layton could have presented evidence there.
Not even that. They ruled that the lower court should not have ruled the National Firearms Act, as applied to short barreled shotguns, without taking evidence that they were militarily useful. The case was remanded to the lower court for "further proceedings", which were never held, since Miller was dead by then, and his co-defendant accepted a plea bargain which resulted in probation only.
It's really too bad Miller and Layton didn't have an unregistered BAR. Even the Supreme Court could not have, with a straight face, ruled that taking judicial notice that those were military/militia weapons, since they were standard issue at the time.
I find it most amusing that the Brady group and other anti-gun orgs DO NOT WANT this decision appealed. Apparently they believe that the DC gun ban is so poorly written that it is indefensible, and that an appeal to SCOTUS will result in a broad 2nd amendment opinion that strikes down most gun control laws.
However, the DC government is not know for its intellect, hence the story.
I love watching liberals flambe!
Was made, in a backhanded way, by the first circuit court of appeals in Cases v. U.S., 131 F.2d 916 (1st Cir. 1942).
It stated the reason for its result on page 178 of the opinion in 307 U.S., on page 818 of 59 S.Ct., 83 L.Ed. 1206, as follows: "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable re- lationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantee's the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."
Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia. However, we do not feet that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go. At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities, -almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,-is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result.
Thus they substituted their own preferences for the ruling of the Supreme Court and the clear words of the Constitution itself.
Maybe so, but there will be Amicus briefs, and you can bet George Soros money will be funding several of them.
A prohibitive ruling by the SCOTUS would provide ample opportunity for citizens to demonstrate the military expediency of the short barreled shotgun.
http://www.law.harvard.edu/alumni/bulletin/2007/summer/feature_3.php
a great article on this subject
I just don't share your optimism about the supremes. They have avoided the 2nd amend for decades - probably because they don't want to strengthen individual rights.
But it will be easy to find an individual right, and it would be a pathetic embarrassment to the dissenters to argue otherwise
Remember this is the court that handed down the "pathetic and embarrassing" Kelo decision, apparently without feeling in the least bit embarrassed, so what is totally clear to us may not be so clear to as capricious and arbitrary body as the the supremes.
No. But the courts have ruled that certain speech is not protected -- libel, slander, fighting words, hate speech, inciting to riot, swearing over the airwaves, shouting "fire" in a theater, etc.
Similarly, the U.S. Supreme Court in Miller ruled (implied) that non-Militia-type weapons are not protected by the second amendment.
This case is huge.
It is also tricky. The court can appear to come down on the side of good by ruling that weapons can be kept in homes.
However, it will be forever interpreted that the ruling of Scotus was that weapons can “ONLY” be kept in homes.
This is a dangerous case.
And individuals in the Revolutionary era did have their own cannon.
I received this post from you by mistake. Did you mean to direct it to NY.SS-Bar9, the poster who originally brought it up in post #128?
"Suffice to say there is reasonable doubt as to whether Miller’s gun was “militia suitable” or not."
I agree. But that doesn't change the fact that the U.S. Supreme Court in Miller implied that only Militia-type arms were protected by the second amendment.
"Let’s focus on the Parker appeal here."
Ah. You mean the appeal to the U.S. Supreme Court? The U.S. Supreme Court which may look at past rulings, like Miller, to make their decision? But Miller can't be mentioned in this thread?
What a maroon.
It means your analogy sucks.
A well-supplied public library, being necessary to the security of a free State, the right of the people to keep and read books, shall not be infringed by the federal government.
Given that the individual right to keep and bear books is protected by each state's constitution, what is the above sentence protecting?
I agree. The court is going hard left if Hillary is nominating supremes.
Trolling? You mean supplying facts that run counter to your ignorant beliefs? Not my definition of "trolling". I call it "debating".
"Precedent", yes. Honest jurisprudence, no."
Ah. Now I get it. You're looking for an activist U.S. Supreme Court that will ignore 100 years of precedent and rule "honestly" (the definition of "honestly" being the way MileHi would rule if he sat on the court).
Hey, that's certainly possible. We can only hope they do. Because if they rule on that biased and racist precedent, we are screwed, blued, and tattooed.
We are not ready for this to go to the U.S. Supreme Court.
Is there any reason to expect the Supreme Court to do anything other than write a very narrow decision dealing with some very specific details of the case at hand? My expectation would be that the Supreme Court will provide that DC must acknowledge the application of the plaintiff who had applied for a permit and was denied, but will find that the other plaintiffs lack standing.
I hope they go further than to just rule that you have a right to keep a firearm in your home. To rule so narrowly would be to ignore the part that says we can keep AND bear arms.
Be patient.
The Winchester Model 1897 was the predecessor to the Winchester Model 1912. Similar, but had a larger stock and an exposed hammer. It also could be fired by holding the trigger down and racking the pump.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.