Posted on 02/04/2008 11:35:06 AM PST by ctdonath2
Today, attorneys challenging Washington, D.C’s 31-year-old gun prohibition laws filed their written arguments in the U.S. Supreme Court.
(Excerpt) Read more at dcguncase.com ...
It is now absolutely abundantly clear that you have not read the Heller brief.
As this thread is entirely about the Heller brief, and it is very clear that you haven't read it, I cordially invite you to cease and desist posting in this thread until you have actually read the brief.
To lay it out very clearly for you: this "gobbledygook" is quoted portions of the Heller brief which very neatly address, resolve, and refute your position. Along with being more eloquently and comprehensively worded answers to your posts, my at-length quotation thereof was a test to see if you recognized any of the material as being from the brief as a means to see if you had actually bothered to read it ... a test which you have rather profoundly failed.
It is a statement of a goal, or a primary reason for, the operative words/phrases which follow it...a NON-EXCLUSIVE goal or reason, as well understood by the drafters of the Constitution and the BOR.
That is, after all, the essence of your problem with the individual rights interpretation (i.e. the standard model) of the 2nd Amendment - you think the preamble is exclusive, and most on FR disagree with you.
Let's think about this - why would the drafters of the 2nd put into the BOR an amendment that only enables the government to determine who gets guns, in light of the then-recent history of the nation? After all, every single militia statute of the time assumed that the members of the militia would come bearing their own weapons - but no one EVER anticipated taking those weapons away when the militiaman got too old (for example, at age 45 if the militia in that state was all males at least 18 years old and under 45 years old). No one ever conceived of taking away the rifle of a 16-year-old, even though he was too young to officially be subject to call-up to the militia. Also, how was a militiaman to become familiar with, or even good at, using his firearm if the only time you could own a firearm was while serving in the militia (or while of militia age)? People then learned at a very young age how to use weapons. People then who were older than 45 taught their young kids or grandkids (both younger than and of militia age) how to use weapons - but if they were barred from owning weapons because they were too young or old, then how could they do this?
If you think that this last paragraph is entirely nonsensical, then think about what your interpretation of the 2nd Amendment would be if the Congress passed legislation, signed into law by the President, defining the militia as "all males between the age of 18 years and 18 years and 3 days of age who are not on active duty in the armed forces." I see no legal reason why the Congress and President couldn't pass such a law - as stupid as it sounds - and, thus, according to your view of the preamble's effect, NO ONE outside of that absurdly small age group would have any right to keep or bear any firearms. Couple that with a draft which is effective at at 18, and you will have completely eliminated all of the militia by the stroke of a pen. Do you seriously believe that this is what the drafters of the 2nd Amendment intended?
Just in case you don't follow the reasoning above, let's look at other preambles in the same document for guidance:
First, the Preamble to the Constitution itself. It sets out, in very general terms, the purpose of the Constitution. Yet, it has NEVER been considered to be a statement of any law - it is just some (very worthy) goals, which are fleshed out in the operative Articles following it. NOTHING in the Preamble will ever be used to invalidate or limit the operative text which follows.
Article 1, Section 8 - among the many powers of the Legislative Branch is the following:
"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;" [emphasis added]
"To promote the progress of science and useful arts..." is the preamble in this clause. It is more similar to the preamble of the 2nd Amendment than the Preamble to the Constitution, since it is part of the same sentence, but the effect and meaning is the same: to state a goal, a primary purpose. However, even if it could be argued successfully in court that a particular book or invention DIDN'T "promote the progress of science and useful arts," the power vested in Congress to grant copyrights and patents WOULD STILL EXIST. In other words, the preamble to this clause is not operative law, it is not capable of eliminating or limiting the powers which follow in the actual operative clause.
Such is also the case in the 2nd Amendment. In fact, I would argue that this is MORE the case with the specifically reserved rights spelled out in the BOR, since it is in keeping with the spirit of the Constitution (and its letter, see below) - which is to create the minimum government needed to avoid chaos, in order to maximize the liberties of the people.
Further, let's look at 2 other Amendments:
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment 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.
Amendment 9 seems very clear - the societal understanding of the times in which both it and the 2nd Amendment were written was that each person had the right to keep and bear arms. [Oh, BTW, don't give me your usual nonsense about non-whites and women not having the same rights - it is inapplicable here - if I, a white male, were a DC resident, I would currently be suffering under the handgun ban at issue in Heller]. The fact that it wasn't specifically delegated to the people in Amendment 2 doesn't mean that such rights could be denied or disparaged. Amendment 10 is also clear (even though it has been widely ignored - such a state of affairs is legally absurd, as all of the words in the Constitution are presumed to have meaning): Since the United States does not have the power delegated to it in the body of the Constitution to ban firearms (whether useful to the militia or not), then such power is reserved to the states or the people. The question of state bans on firearms (i.e. the incorporation of the 2nd Amendment via the 14th) is a question for another day - but as to the federal government, the answer is clear as day: no bans are permitted, period.
In post #57, I stated: “Where’s the answer to the proposition that a preamble cannot negate an operative provision of law? You didn’t answer that one, did you?”
In post #71, you stated: “Yes, I did.”
Here’s my response: NO, you didn’t. Let’s examine what you stated in your original post, #40:
“First of all, where’s the moron who would seriously contend that religion, morality, or knowledge were unnecessary for good government?
Idiotic supposition with a lamebrain conclusion.”
Calling something an “idiotic supposition” and claiming that it was a “lamebrain conclusion” are, clearly, your opinion (to which you are entitled). But those assertions of your opinion DO NOT demonstrate, either logically or legally, a response to the question of “Where’s the answer to the proposition that a preamble cannot negate an operative provision of law?”
So, what’s the logical and/or legal response to my question?
Put another way:
The operative clause protects the right to individually-owned arms.
The preamble answers the common question “does that include military-specific arms like full-auto and howitzers?” with “yes, the right includes everything a well-functioning militia needs to protect the country.”
Are you insinuating that muskets were not in common usage? That they were later replaced by rifles?
Or are you trying to argue now that muskets are the only firearms protected by the Second because of their mention in the 1792 Militia Act?
You do know you've tried that before and gotten spanked for it...
“Heck there wouldn’t even need to be such a thing as “Class 3 Dealer”, just your friendly gun or hardware store, like before 1934.”
Amen to that.
I find it curious that my grandfathers could have (but didn’t, DAMN IT) walked into their local hardware stores and bought (for example) a Colt Monitor or a Thompson Submachine Gun - for cash, no ID required, no background check, no $200 tax stamp, no permission from their mommies - uh, excuse me, the local chief LEO. They could then have slung the gun over their shoulder, ammo cans in hand, and walked out the door without a problem, walked to their car without a problem and then used it in every manner but to hurt innocent human beings or destroy their property - without a problem.
But I cannot do so, despite being as law-abiding a person as them. I cannot even buy a full auto that is less than about 21 2/3 years old with all of the checks, permission and taxes, and if I buy one older it will cost a small (or not so small) fortune - because the supply is limited by government fiat.
So much for being able to exercise a “right.” Clearly, my right (and those of virtually everyone else in this country) are being infringed upon. I am sick of it. I sincerely hope that the SC sees the light and sustains the DC Circuit’s ruling without so many caveats and loopholes as to render it (and our rights) meaningless.
“I agree with your assessment, but NFA rules won’t be changed without a lot of kicking and screaming from the left...”
Let the kicking and screaming commence.
I volunteer to help make a leftie scream...as will almost certainly be the case the first time that I manage to take one to the range and pull out my AR-15 with a newly installed “happy switch.”
Keep in mind that Class 3 includes suppressors and SBRs, which are not restricted by 1986
You still have to ask local & government permission for ‘em, pay $200 (more than some should be worth), be scrutinized (allowing for “fishing expeditions”), and wait considerable time. All this for things that at best are safety devices (hearing protection) and at worst equivalent to other legal things.
Oh, and even the slightest paperwork “violation” can get you in the slammer for 10 years and a $25,000 fine.
In an effort to help, I sent the following to Gura & Possessky:
“I read with great interest your brief in the “Heller” case. I think that it is a magnificent document, shredding the arguments of the District of Columbia.
There is, however, one point that I don’t think you made regarding the issue of the preamble. I hope that if you find my statement below to be helpful, you can supplement your brief or otherwise get this information before the Court. At the very least, it will give you an additional arrow in your quiver at the time of the hearing before the Court this Spring.
Please note that what follows clearly isn’t itself suitable for submission, but the idea conveyed should be sufficient to determine its worth (or lack thereof).
___________________________________
Advocates of the preamble as operative law make the assertion that only people actually in the militia have a right to arms, and then only in the performance of their militia duties. OK, fine, let’s take that to its logical extreme.
Presently, U.S.C. Title 10, Section 311 states that the militia is composed of “all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.” Section 311 goes on to indicate that the National Guard and the Naval Militia compose the organized militia, and all other militia members are in the unorganized militia.
Let’s now propose a hypothetical situation: Congress ratifies a bill, and the President signs it into law, the substance of which changes the definition of the militia to “...all able-bodied males at least 18 years of age and, except as provided in section 313 of title 32, under 19 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.”
Is this highly limiting change in the definition of the militia sufficient to deprive every other citizen of the right to keep and bear arms? According to the logic of those who view the preamble as operative law, the answer would be “yes.” Such would be, however, absurd on its face to the drafters and ratifiers of the 2nd Amendment. It would be akin to the initial, rejected, text of what is now the 2nd Amendment, wherein the Congress could have declared all persons to be religiously scrupulous - and thus deprived of arms because they couldn’t be part of the militia.
Let us take this one step further: What if, in conjunction with the change of the definition of the militia, Congress and the President enacted a draft, forcing all males to report for 2 years of service on the day when they turn age 18. The result would be that NO ONE would be part of the unorganized militia, a plainly absurd, and constitutionally improper, result.
Is that what the drafters and ratifiers of the 2nd Amendment intended?
________________________________________
Again, I hope that this information will be of use to you. I don’t require any thanks or attribution, but I will be available for any consultation (for no fee) that you may need or desire.”
Very truly yours,
Etc.
Oops, a triple tap!
Please remove 2 of the 3 identical posts. This occurred because of server problems (imagine, FR’s servers busy on Super-Duper Tuesday...what’s the world coming to?).
Methinks the issue was suitably addressed in the section reviewing revolutionary history. At that point, militias were flatly illegal and actively prosecuted - the ultimate end to your concern. Nonetheless, the Founding Fathers engaged in their natural right to RKBA, formed militias, and acted against an oppressive tyrrany. Heller then goes on later to address the “strict scrutiny” view, reaching a conclusion that naturally precludes the scenario you submit: whatever standard of review applied must not be suceptable to “tweaking” into oblivion, and must not be subject to remanding back to lower courts for more “findings”.
If you read the Heller brief, you’d know.
Go ahead, quote the section that concerns you - and show us objectively why it’s wrong.
(If you haven’t read the brief, why are you posting on this thread?)
Nope, these are specifically listed as “transferable machine guns”. NOT all NFA classes combined.
I think the BATFE is up to their eyeballs in trouble.
Mike
I'm simply saying you wouldn't ever let the U.S. Supeme Court get away with such a rereading of the text. And you know you wouldn't.
We clear?
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