Posted on 03/21/2008 6:29:24 AM PDT by Pistolshot
I have spent a lot of time surfing some of the other discussion threads on the hearing before the US Supreme Court of DC v Heller. A lot of comments have been about the testimony about machine guns, rifles, Miller, and a host of zealousness that makes gun-owners look as bad as the most strident anti-gunner. It does NOT serve us well.
Heller is about handguns, and the ownership, use and ability to protect ones self in the home.
It is not about NFA ‘34
It is not about GCA ’68.
It is not about Hughes.
It is narrowly defined by the SCOTUS to handguns.
Now, there are pie-in-the-sky zealots who want everything put in order, the way it was, in one-shot. The bad news is that is NOT going to happen.
Now that we have gotten that out of the way, lets look at what we can get.
We get a definitive ruling that the restrictive law of DC is in direct violation of the individual right to own a firearm, specifically a handgun, and that the restrictive DC law is overturned, affirming the lower courts decision. The DC City Council will have to come up with something that will pass judicial muster. Most likely a complete reversal of the 'secure' weapons in the home provisions along with opening of registration of handguns in the city, as the law read before the Council banned all handguns.
We get the perception from the courts that they would like to correct Miller. Justice Kennedy – “Miller may be deficient.” The translation here is : “Bring us a case we can rule on.”
Heller opens this door.
What else do we get?
We get the chance to find the correct case to bring to the justices to roll back Hughes, which will roll back the restrictions on new machine guns.
We get the chance to bring the correct case to roll back GCA ’68 and the importation of surplus weapons
All of these are dependent on how the Supremes rule in Heller, but it will not signify that a total revolution in gun control and gun laws has taken place
It only means we have won one battle, and there are many, many more to come.
The right of ‘the people’ has been taken incrementally, a bit at a time. The only way will get that right completely restored is in the same fashion.
Incrementally, one piece at a time.
KK,
I think that what you are doing is looking to the wrong document for guidance.
The Declaration of Independence is our founding document, not the Constitution. The DoI boldly outlined the reasons for our separation from the Crown and the hows and whys for our desired manner and style of governance. In there you will find that we do have the right — and indeed the duty — to throw off an unjust government.
The Articles of Confederation was the first attempt at rules for the government to follow. When that proved ineffective, a new Constitution was written. It was intended as chains on the government. It didn’t grant rights. It didn’t get into philosophy. It simply delegated limited powers to the new central government. I’ve come to agree with the Federalists that the BoR was unncecessary and even a mistake.
We don’t need a penumbra or emanations from it. All rights are inherent in us as our birthright. A right need not be enumerated to be inalienably ours, but too many people have come to believe just that.
"...thought of your approach..."
"...you are asking for, a hundred thousand page manual of explicit orders down to the last degree..."
From my posts: "Can those currently in positions of leadership be expected to openly come out with such clarity if the Founders themselves were reluctant to clearly word the Amendment as follows:" (What followed is omitted for this post)
I have not claimed as mine any "approach" nor have I asked for "orders". I questioned whether current leadership can be expected to clearly state something when the Founders were reluctant to do so. I offered one example of what was not written because "the Founders themselves were reluctant" to do so. While I did not go into the reasons for that reluctance as you did, I did acknowledge it.
Whether or not "...those currently in positions of leadership (can) be expected to openly come out with such clarity if the Founders themselves were reluctant to..." has still not been addressed.
But that's not what I'm trying to do right now. I'm questioning "Whether or not "...those currently in positions of leadership (can) be expected to openly come out with such clarity if the Founders themselves were reluctant to..." (Posts 36 and 102)
That's in response to: semantic: "...we need to re-establish the concept that the People...have pre-existing rights to possess sufficient firepower...to challenge a potentially tyrannical government." (Post 7) and Leisler: "...the 2nd Amendment...is about the citizens having military weapons to attack and commit violence and killing upon tyrannical government forces." (Post 11) Nobody's addressing "those currently in positions of leadership". And note that I haven't come down on either side of the question. Also note that I'm not disagreeing with any of the rest of your Post 101.
You're right about CCW being a de facto type of registration depending on the state, but, this is also one of those areas that having a favorable ruling on Heller can help in addressing.
Wouldn't be an ultimate goal to have our CCW along the lines of Vermont?
Nowadays politicians do not have the requisite body parts to speak clearly lest they offend one side or the other of any issue.
What you think was unexpressed or not expressed clearly by the Founders was, at the time, not necessary to express. That’s why the Federalist’s opposed the Bill of Rights. Why tell the feds that they don’t have the power to do something that they were not given the power to do.
They wasn’t a reluctance to be clear. There was an understanding of what the words meant before lawyers got their hooks into them. Think about it — there were few or no challenges to our 2A rights in the 50 some years after the Constitution but the further away we got and the more the words ‘evolved’ and new meanings were attached to them is when the challenges proliferated.
I thought that one of the forms (4473?) contained that info but I could be wrong as it has been some time since I’ve had to complete those forms.
Yes, Vermont or Alaska style is the preferred way to go.
As to your original point, we will likely win back our rights just as we lost them, one step at a time, but that is no reason to stop calling for a complete restoration all at once. The (and I hate to use the word) extremes define the middle. As long as some of the grabbers are calling for a complete ban, for us not to call for a complete restoration would be fool hearty and even negligent.
I’m not terribly fixated on size (pun intended).
I’m just thinking about what kind of a standard the Court could swallow in the next case, assuming that we win in Heller. There’s no way that they’ll rule that any weapon can be owned by individuals, so nukes and other WMDs are out (even if, theoretically, they shouldn’t be). I’m also aware that anyone who can buy a full auto can also buy a howitzer, tank, etc. (depending on local law)...though they aren’t sold to the civilian marketplace, and the government would likely refuse to do business with any company that even attempted to sell to the public, so it ain’t gonna happen.
I agree with you about cannon. That’s what the Letters of Marque and Reprisal in Article 1, Section 8 depend on - how else could a Congressionally-licensed privateer hope to take on the HMS Arrogant Limey (or similar ships)?
Kennedy is the key; its a nail-biter.
Also, an individual right ruling without strict scrutiny will essentially mean that the 2nd is without teeth.
Here in the once-great Golden State, we have a total ban on AR's and an unconstitutional registration of those possessed before 1991. The 9th Circuit ruled against the challenge to those laws (in Sylveira) stating that the 2nd "does not refer to an individual right." I also hope to hell that Heller comes down without major reference to the "militia".
Every gun bought from an FFL is recorded as part of the "permanent record" of the FFL. When the FFL finally goes out of businesses, those records are turned over to the BATFE.
Every gun bought from an FFL can be traced from the manufacturer to the first purchaser, and, in places like Kalifornia, to every later purchaser, unless the purchaser violates the law.
There's more than enough information to drive an initial wave of confiscations and it is likely that the vast majority of people who own even one gun have bought at least one through an FFL. This number will only increase with time.
The actual words are in the Declaration of Independence - the type of document which prevails when a constitution no longer does/should.
SCOTUS = Supreme Court Of The United States
Hughes = 922(o) = post-’86 MG ban.
Thank you for the info. As I thought, they have enough info to qualify it as registration and CCW list tends to confirm to ‘them’ which of us are armed.
Yes, I’m aware of that, but you used it where a plural was called for, so I was proposing some candidates for the plural form.
“The actual words are in the Declaration of Independence - the type of document which prevails when a constitution no longer does/should.”
Bearing in mind I’m questioning “Whether or not “...those currently in positions of leadership (can) be expected to openly come out with such clarity if the Founders themselves were reluctant to...” (Post 101, I infer your response is that they can’t be expected to because because it’s already been stated and doesn’t need to be restated.
I appreciate your responding to what I was questioning. I kind of choke on equating "politicians" with "leadership", but let's let that pass.
"What you think was unexpressed or not expressed clearly by the Founders was, at the time, not necessary to express."
"There was an understanding of what the words meant before lawyers got their hooks into them."
Yet some State Constitutions of the time did express the following (emphasis added): The Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts in the Constitution of Massachusetts 1780 states: Art. XVII. The people have a right to keep and to bear arms for the common defence. The Declaration of Rights in the Constitution of Connecticut (1818) states: Sec. 17. Every citizen has a right to bear arms in defence of himself and the state. The Declaration Of Rights in the Constitution of North Carolina : December 18, 1776, states: XVII. That the people have a right to bear arms, for the defence of the State; The Declaration Of The Rights Of The Inhabitants of the Commonwealth Or State Of Pennsylvania in the Constitution of Pennsylvania - September 28, 1776 states: XIII. That the people have a right to bear arms for the defence of themselves and the state;
The Declaration Of The Rights Of The Inhabitants Of The State Of Vermont in the Constitution of Vermont - July 8, 1777 states: XV. That the people have a right to bear arms for the defence of themselves and the State;
The Ohio 1802 Constitution states: sec 20. That the people have a right to bear arms for the defense of themselves and the State;
The Declaration of Rights of the 1796 Constitution of the State of Tennessee states: XXVI. That the freemen of this state have a right to keep and to bear arms for their common defence.
Article I of the Constitution of the Indiana Constitution of 1816 states: Sect. 20. That the people have a right to bear arms for the defence of themselves, and the state;
Article I of the 1817 Constitution of the State of Mississippi states: Section 23. Every citizen has a right to bear arms in defence of himself and the State.
When they wrote what became the Second Amendment they understood that people might again find it necessary to "alter or to abolish" and "to institute new Government" and that arms might be necessary to do so. I think they did not want to offer an option of constraint posed by words like "defence of themselves, and the state" and so forth. But it would have been kind of self-defeating to include words like "so the people can alter or abolish the government established by this Consititution and institute a new one as necessary".
So they left us the words they left us.
And my response to what I'm questioning is: We cannot expect those currently in official positions of leadership to openly and officially come out with such clarity. (They might but we shouldn't expect it.) However, we can expect it unofficially and should expect it from those who are not in official positions of leadership. And folks like us, need to keep the idea alive.
I apologize for creating the impression that I thought that ‘politicians’ and ‘leadership’ were one in the same. They surely and demonstrably are not.
I understand your position but I still think (although I may be wrong) was that within the colonies/states, they were explicit because the States have a wider latitude to act. Otoh, the Federal government was only given limited powers. To say (in the BoR) then that the feds could not act when they were never given the power to act was unnecessary. That is why I (of late) believe the BoR was a mistake. Rather than clarifying and protecting our rights, it has done more to obfuscate and diminish the rights that were not enumerated.
I apologize for creating the impression that I thought that ‘politicians’ and ‘leadership’ were one in the same. They surely and demonstrably are not.
I understand your position but I still think (although I may be wrong) was that within the colonies/states, they were explicit because the States have a wider latitude to act. Otoh, the Federal government was only given limited powers. To say (in the BoR) then that the feds could not act when they were never given the power to act was unnecessary. That is why I (of late) believe the BoR was a mistake. Rather than clarifying and protecting our rights, it has done more to obfuscate and diminish the rights that were not enumerated.
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