DC v Heller - A Personal Perspective

03/21/08 | Pistolshot

[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.

[Hunble]

In my state's Federal circuit court, we have the Stewart Ruling -- United States v. Stewart (2003). In Stewart the 9th Circuit Court held that homemade machine guns can not be constitutionally regulated by the United States Congress under the Commerce Clause since they did not have a substantial effect on interstate commerce. The ruling was appealed to SCOTUS in 2005 and they vacated the Ninth Circuit's ruling, remanding the case back to the court for further consideration in light of its recent ruling in Gonzales v. Raich, 545 U.S. 2005.

Can we use the 2nd to invalidate the abuses of the "commerce clause?"

Trying to think ahead to the next step.

[umgud]

Also of note; If the DC residents are found to have the RKBA in their homes, shouldn’t that right also extend beyond their homes? Surely our forefathers didn’t write the 2A to be restricted only to the home. Did people lose the RKBA when they left their homes and mounted their horses or rode off in a buggy?

[Shooter 2.5]

It is not about NFA ‘34

It is not about GCA ’68.

I don’t know what Hughes is but the Supreme Court Justices were the ones who discussed the Machinegun tax and the GCA ‘68.
Read the transcripts.

[William Tell]

umgud said: "If the DC residents are found to have the RKBA in their homes, shouldn’t that right also extend beyond their homes?"

Everything the Court says about "keep" should equally apply to "bear".

Don't believe the lie that "bearing arms" only refers to military service. One argument I read or heard recently was that the British, prior to our Revolution, had forbidden the Scots from "bearing arms", rendering nonsense that it refers to military service. Inability to "bear arms" is to be DISARMED.

[Pistolshot]

That discussion concerned the use by Militia of handguns of all types or the framers not anticipating machine guns. One of the reasons Kennedy said..."Miller may be deficient".

Hughes was the amendment the forbid the importation of any machine guns after 1986. relegating all those in transferable category the only ones available, hence the enormous price for those.

[Pistolshot]

That discussion concerned the use by Militia of handguns of all types or the framers not anticipating machine guns. One of the reasons Kennedy said..."Miller may be deficient".

Hughes was the amendment the forbid the importation of any machine guns after 1986. relegating all those in transferable category the only ones available, hence the enormous price for those.

[William Tell]

Hunble asked: Can we use the 2nd to invalidate the abuses of the "commerce clause?"

In so far as the right to keep and bear arms is ruled an individual, fundamental right protected by the Second Amendment, no regulation of commerce should be permitted which infringes the right. But that won't necesarily stop a power-mad Supreme Court from trying.

[Hunble]

But that won't necesarily stop a power-mad Supreme Court from trying.

I was rather impressed, since you actually understood what I was talking about.

[An Old Man]

"this Court has repeatedly struck down... a person cannot be compelled ‘to purchase, through a license fee or a license tax, the privilege freely granted by the constitution.”

Sorry to be picky, but I thought that the feds simply protect rights not grant them. Except for maybe "the right to privacy".

Semper Fi
An Old Man

[An Old Man]

"OK, maybe a nuke is going too far - but I cannot buy into any restriction any weapon that can be carried by a single average soldier."

Can you please give me an answer to a nagging question I have about this "Bear" Part of the Constitution. Why are people fixated on what size of load a person can bear? Are not all arms equal?

I think there is sufficient evidence that Cannon were privately owned during the Revolution and that congress was authorized to hire privateers to go after the British with there private cannon. I haven't found the evidence to prove it yet, but I suspect that our artillerymen probably used beasts of burden to move their field guns.In recent times we have resorted to Motor trans[port to move all sorts of arms and ammunition throughout the battle zone.

The following picture shows a truck named by none other than the USMC as a "Weapons carrier" If I could use this truck to carry weapons I used while in service to thhis country, Why am I restricted now to only those weapons which I can carry?

The Dodge M37 (G-741) was a ¾ ton four-wheel drive truck. It superseded the Dodge WC-51 and WC-52 trucks in US service and was used extensively by the United States armed forces during the Korean war.

Semper Fi
An Old Man

[Still Thinking]

SCOTUS of the last several decades have been very loathe to issue broad rulings.

SCOTI? SCOTUM?

[Leisler]

They did. There was a reason that they didn’t ‘word up’ the general statements. There are no exceptions. The right is not qualified. It is not even hinted at having limits.

That is why they made such short, clear, absolutist laws.

[RKV]

Understood. I’d still beat the gun-grabbers over the head with it.

[KrisKrinkle]

So, my post 36 was:

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:

The Right of the People to alter or to abolish a Government and to institute new Government, being necessary to the security of a free State, the right of the people to keep and bear Arms necessary to do so shall not be infringed.

And your response was:

They did.

And my response to that is:

Excellent!!!  But I can't quite find some of the words (like "abolish" and "institute new Government" and some of the others) that "they did" clearly word in the Amendment.  I'd really like to know where they are at.  Not prenumbra or emanations; the actual words.

[wastedyears]

I could do something like the Knob Creek Machine Gun Shoot once a month.

:)

[wku man]

Is that clear enough?

Uh, not really. I'm saying that if I disagreed with a law enough to disobey it, and was punished for that civil disobedience, I wouldn't just accept that punishment as legitimate, and would probably get the living sh** kicked out of me for resisting arrest. Bad law = bad punishment for disobeying bad law.

If you're speaking specifically about Heller case, well, that remains to be seen. I sure hope it doesn't come to that, but that's why the RKBA was included in the BoR in the first place, right?

Scouts Out! Cavalry Ho!

[wku man]

"Now if the SCOTUS makes the wrong choice, and if the people decide to react, then the people will use all possible arms against them."

So here's the (rhetorical) $64K question: what if "the people", or more likely "the sheeple", decide not to react at all? What if 99% of us simply decide it would be easier to meekly comply, and "turn 'em in". What if the sheeple decided we/they could live with prohibitively high taxes on ammo, or microstamping, etc? What would the remaining 1% do? Grab the torches and pitchforks and burn down the chieftain's hut? Or bury 'em and wait for some unforseen line in the sand to be crossed in the future?

Not that I'm looking for an answer here and now, it's just something that we all have to think about and wrestle with on our own. When all's said and done, we're all going to have to decide for ourselves when the camel's back has broken from one too many straws. Dear Lord, please don't let it come to that.

Scouts Out! Cavalry Ho!

[Leisler]

You have to read up on the reason for the style of language used in The Bill.

The idea and fact was that all, all powers are derived not from the government, nor any document, or statement but from the people and from God. So it wasn't necessary to inform those that held that power, what their powers would be. Further the writers of The Bill of Rights thought of your approach and felt that if they got into that, that anything they didn't say, then people would assume that what was left out wasn't a popular right, but that it was, maybe, a govenmental right. So, they wanted to avoid that, both in language style and explicitly in the Tenth and the then last amendment.

"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."

This notion on non enumerated powers is now unknown in our lawyer, document and word rich legal culture. But, that is our present problem. And that is what you are asking for, a hundred thousand page manual of explicit orders down to the last degree, or as that Yale lawyer President said, and reflecting our present legal culture to include, ‘what is is.’

[Pistolshot]

Thank you all for your comments. I see we have some that still are adamanet about the 2nd Amendment. Thank you. Believe me, I am with you in your fervor, however, I am also a realist in what we can get, and what we will get from Heller.

It is a begining and as with the CCW laws across the country, improvement in our situation will only come in increments.

But we must constantly remind the congresscritters that there is a real power they should listen to, and fear.

[Harvey105]

The expansion of concealed carry is a double edged sword. While I like the idea that more people understand the need and the right, we are giving the government what we are so adamantly against — a defacto registration.

We aren’t telling telling exactly which guns we have (we already did that with the Instant Check) but that we have and intend to carry them.