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 ...
Not my reasoning. The poster in #63 had it right.
couldn't stand the heat?
typical, you lose the argument and whine.
Moderator, that post wasn't that bad and I edited the vulgarity so it wouldn't pulled.
The writers of the brief were obligated to defend the DC Court's decision in the context of the Miller decison if it was possible to do so. It would be a mistake to ask the Supreme Court to overturn Miller if it was not necessary to deciding Heller.
The brief DOES make the case that the pre-existing right of the people to keep and bear arms is a FUNDAMENTAL, INDIVIDUAL right that should be subject to STRICT SCRUTINY.
Further, in the case of machineguns, the government is never going to get away with claiming that machineguns are not in common use and thus not protected, since that very government has been prohibiting their common use for 75 years and prohibiting their manufacture for common use for half that time.
If the laws prohibiting ownership of machineguns were repealed, the sales would be in the millions of units.
But they did not present that argument - so it will not be heard in this case.
Although I could live with that being the NEXT case. ;)
A. Preambles Cannot Negate Operative Text.By its own terms, the rationale of the Second Amendment’s preamble is not exclusive. The operative rights-securing clause is grammatically and logically independent of the preamble. Skilled diplomacy, a powerful army, or adherence to the constitution may sufficiently provide for “the security of a free state,” and still the people would enjoy their right to arms. Most critically, the preamble cannot contradict or render meaningless the operative text.
As Petitioners note, preambles are examined only “[i]f words happen to still be dubious.” Pet. Br. 17 (quotation and citation omitted). “[B]ut when the words of the enacting clause are clear and positive, recourse must not be had to the preamble.” James Kent, 1 COMMENTARIES ON AMERICAN LAW 516 (9th ed. 1858). “The preamble can neither limit nor extend the meaning of a statute which is clear. Similarly, it cannot be used to create doubt or uncertainty.” Norman Singer, 2A SUTHERLAND ON STATUTORY CONSTRUCTION § 47.04, at 295 (7th ed. 2007).
The Framers were familiar with these rules of construction. One influential English precedent held:
I can by no means allow of the notion that the preamble shall restrain the operation of the enacting clause; and that, because the preamble is too narrow or defective, therefore the enacting clause, which has general words, shall be restrained from its full latitude, and from doing that good which the words would otherwise, and of themselves, import; which (with some heat) his Lordship said was a ridiculous notion.
Copeman v. Gallant, 1 P. Wms. 314, 320 (Ch. 1716); see also Edward Wilberforce, STATUTE LAW: THE PRINCIPLES WHICH GOVERN THE CONSTRUCTION AND OPERATION OF STATUTES 288-89 (1881).
[G]eneral words in the enacting part, shall never be restrained by any words introducing that part; for it is no rule in the exposition of statutes to confine the general words of the enacting part to any particular words either introducing it, or to any such words even in the preamble itself.
King v. Athos, 8 Mod. Rep. 136, 144 (K.B. 1723); see also Mace v. Cadell, 1 Cowp. 232, 233 (K.B. 1774) (“if the statute meant to comprehend nothing more than is contained in the preamble, it means nothing at all”).
Preambles are “properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the preamble.” 1 Joseph Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 326-27 (2d ed. 1851). Accordingly, the Constitution’s other preambles are given no weight. “Although that [opening] Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power. . . .” Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905).
The Copyright and Patent Clause preamble would arguably possess greater operative force than that of the Second Amendment, as it begins with the infinitive that introduces most powers of Congress. The power “[t]o promote the Progress of Science and the useful Arts,” U.S. CONST. art. I, § 8, cl. 8, viewed with the same breadth as the power “[t]o regulate Commerce,” U.S. CONST. art. I, § 8, cl. 3, could stand alone absent the text that follows. In contrast, the Second Amendment’s preamble merely declares a concept. Yet “Congress need not ‘require that each copyrighted work be shown to promote the useful arts.’ ” Schnapper v. Foley, 667 F.2d 102, 112 (D.C. Cir. 1981) (citations omitted). And this Court does not question whether copyright and patent laws serve the preambular purpose of promoting progress, though some laws might fail such examination. Eldred v. Ashcroft, 537 U.S. 186, 212 (2003).
That the Second Amendment contained a declaration of purpose was not unusual for its day. But such declarative language was never given the transformative effect urged by Petitioners. E.g., Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U.L. Rev. 793, 794-95 (1998). The same Congress that passed the Second Amendment also reauthorized the Northwest Ordinance of 1787, containing this language: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Act of Aug. 7, 1789, ch. 8, 1 Stat. 50, 52. But nobody would seriously contend that were religion, morality, or knowledge one day found unnecessary for good government, schools should no longer be encouraged in the states of the former Northwest Territory.
Petitioners argue that the preamble should be given controlling weight because “ ‘it cannot be presumed that any clause in the constitution is intended to be without effect.’ ” Pet. Br. 17 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803)). But their citation to Marbury is incomplete—the passage concludes: “unless the words require it.” Marbury, 5 U.S. (1 Cranch) at 174. Because Petitioners urge an interpretation of the preamble inconsistent with the plain meaning of the operative text, and considering the established rules of construction governing preambular language, the “presumption” urged by Petitioners is rebutted. Notwithstanding Marbury, the Court did not give force to the opening preamble in Jacobson or to the Copyright preamble in Eldred.
No doubts or ambiguities arise from the words “the right of the people to keep and bear arms shall not be infringed.” The words cannot be rendered meaningless by resort to their preamble. Any preamble- based interpretive rationale demanding an advanced degree in linguistics for its explication is especially suspect in this context. “A bill of rights may be considered, not only as intended to give law, and assign limits to government . . . , but as giving information to the people [so that] every man of the meanest capacity and understanding may learn his own rights, and know when they are violated. . . .” 1 St. George Tucker, BLACKSTONE’S COMMENTARIES, app. 308 (1803)
Well, that settles that.
Pulling was fair.
Point made, though.
Actually, ready the brief, it builds exactly that argument - since MG’s have been restricted for 75 years, they are no longer in common use, and hence are subject to unlimited restriction.
Which is why I have reservations.
Before page 44, it is brilliant - after that, it is expedient, at best.
Ah, well. Strategy, vs. tactics.
But since the Founders considered a well regulate Militia (rather than an armed populace) necessary to the security of a free state, they decided to be a little more specific.
If that was the case then they should have written it as,
“....,the right of the militia to keep and bear arms shall not be infringed.”
We are speaking here of a “...Right of the PEOPLE...”, those same PEOPLE mentioned in the other amendments as indicating an individual right.
Of course, there is always the chance that the Court will rule against the 2nd Amdt. More likely the ruling will be very narrow and turn on whether a preposition was spelled wrong in the original filing and will decide nothing substantial.
My impression is that a ruling on this will NOT be all inclusive on the legitimacy of the Second Ammendment. Maybe I'm missing something, but if appears that the brief is very narrowly defined only as to the right to legally possess a firearm in the HOME:
"Respondent Dick Anthony Heller successfully challenged the Nation’s three most draconian infringements of Second Amendment rights. D.C. Code section 7-2502.02(a)(4) forbids registration of handguns, thereby effecting a ban on the possession of handguns within the home.
Respondent challenges this provision only as it relates to his home".
Am I missing something??? Care to 'splain?
repealing egregious violations of the BOR through SCOTUS works via baby steps
Brown v BOE never would have happened without the Plessy case, which resulted from a couple of other cases that escape me right now.
the history of Brown is an interesting read and gives good insight on how you crack the door before you blast it wide open...
SCOTUS isn’t the only party interested in keeping this very narrow. Mr. Heller et al goes to great length to keep this whole thing down to a single issue: he wants to keep a loaded, assembled, unlocked handgun in his home for self defense - PERIOD. All the other related issues only serve to obfuscate the issue at this point, which is why I believe we haven’t seen any other case get this far (if the case gets too broad and/or has too many overlapping technically-unrelated issues, SCOTUS doesn’t want to get involved as it’s already hard enough to get a clean verdict on a simple case).
The case is brought to refute the idea that no one has the right to a functional firearm at all: if it is won, we can then argue where one has that right.
DC law prevents the right to a functional firearm in your own home.
Hence, the case argues that this most restrictive standard, if upheld, means that the 2A means nothing.
...in which case, the constitution means nothing...
...in which case, the government has no legitimate authority...
I said it was "a clarification" previously and you pooh-poohed that. You say it's "explanatory". Fine. We'll use yours. I'm not in the mood.
So we agree. Just not on what it explains. I contend it explains when the right is protected.
You say it explains just one (of many) reasons to protect the right. Would you allow the U.S. Supreme Court such latitude? "Yes, we know it says interstate commerce, but that's only one of many types of commerce that Congress can regulate."
Hmmmm ... seems you missed some of it. See #85 for the rest (it's a bit longer than two words).
Having lunch with the moron who seriously contends that ordinary citizens are not the militia.
Idiotic supposition with a lamebrain conclusion.
In other words, the conclusion doesn't fit your agenda.
That wasn't my question, but thank you anyways.
How you doing? Hope you and yours are well.
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