NRA Appeals Seventh Circuit Ruling to the U.S. Supreme Court

NRA-ILA ^ | 06/04/09 | unk

[epow]

On Wednesday, June 3, the National Rifle Association filed a petition for certiorari to the U.S. Supreme Court in the case of NRA v. Chicago. The NRA strongly disagrees with yesterday's decision issued by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, holding that the Second Amendment does not apply to state and local governments

[RobRoy]

>>They are “government”
NOT federal government. NOT Congress.<<

I agree.

[itsahoot]

Mojave's concern is that if the feds are the ultimate and only authority on what RKBA means, then RKBA can be reduced, by Congress and SCOTUS, to an unrecognizable form -- and those clamoring for incorporation will bear the lion's share of the blame for that.

Well I think most people reading this thread assume that this has already happened. Why would it matter if the state, can already deny your RKBA?

Sad thing is when I was born this whole discussion would have been deemed insane.

[Mojave]

I suspect you are misinterpreting that statement, probably because it is long and complex.

So you say. Where the rest of the purportedly "long and complex" statement then?

[El Gato]

The language of the second amendment is broad enough to embrace both Federal and State governments--nor is there anything in its terms which restricts its meaning. The preamble which was prefixed to these amendments shows, that they originated in the fear that the powers of the general government were not sufficiently limited. Several of the States in their act of ratification recommended that further restrictive clauses should he added. And in the first session of the first Congress, ten of these amendments having been agreed to by that body, and afterwards sanctioned by three-fourths of the States, became a part of the Constitution. But admitting all this, does it follow that because the people refused to delegate to the general government the power to take from them the right to keep and bear arms, that they designed to rest it in the State governments? Is this a right reserved to the States or to themselves? Is it not an inalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is too dear to be confided to a republican legislature.

Questions under some of these amendments, it is true, can only arise under the laws and Constitution of the United States. But there are other provisions in them, which were never intended to be thus restricted, but were designed for the benefit of every citizen of the Union in all courts and in all places; and the people of the several States, in ratifying them in their respective State conventions, have virtually adopted them as beacon-lights to guide and control the action of their own legislatures, as well as that of Congress. If a well-regulated militia is necessary to the security of the State of Georgia and of the United States, is it competent for the General Assembly to take away this security, by disarming the people? What advantage would it be to tie up the hands of the national legislature, if it were in the power of the States to destroy this bulwark of defence ? In solemnly affirming that a well-regulated militia is necessary to the security of a free State, and that, in order to train properly that militia; the unlimited right of the people to keep and bear arms shall not be impaired, are not the sovereign people of the State committed by this pledge to preserve this right inviolate? Would they not be recreant to themselves, to free government, and false to their own vow, thus voluntarily taken, to suffer this right to be questioned? If they hesitate or falter, is it not to concede (themselves being judges) that the safety of the States is a matter of indifference?

Such, I apprehend, was never the meaning of the venerated statesman who recommended, nor of the people who adopted, this amendment.

The right of the people peaceably to assemble and petition the government for a redress of grievances; to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; in all criminal prosecutions, to be confronted with the witness against them; to be publicly tried by an impartial jury; and to have the assistance of counsel for their defence, is as perfect under the State as the national legislature, and cannot be violated by either.

Nor is the right involved in this discussion less comprehensive or valuable: "The right of the people to bear arms shall not be infringed;" The right of the whole people, old and young, men, women and boys, and not militia only, to keep and hear arms of every description, not merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans, plead eloquently for this interpretation! And the acquisition of Texas may be considered the full fruits of this great constitutional right.

Nunn v. State, 1 Kelly 243 (Ga. 1846)

-----

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government

Presser v. Illinois, 116 U.S. 252 (1886)

[Mojave]

No it united them, but denied them equal representation, and oppresses them to this day.

Through activist courts legislating from the bench?

[Cboldt]

-- Well I think most people reading this thread assume that this has already happened. Why would it matter if the state, can already deny your RKBA? --

Most states can't - their constitutions forbid it. Illinois state constitution does, for example. The fix isn't to go crying to pappa Fed when your state abrogates its contract with its people.

Said another way, there is more than on RKBA, but people don't take care to distinguish them in conversation because they all go by the same name. "Inherent RKBA," "RKBA noticed in a state constitution," and "RKBA noticed in the Fed constitution." So, if somebody says "RKBA in the fed constitution doesn't apply against the states," that doesn't make all three types of RKBA evaporate.

Even if a state constitution lacks an RKBA provision, the state can't deny your RKBA, even if the Fed RKBA (2nd amendment) is set aside. SCOTUS said so in Presser - if a state prohibits RKBA, it steps on the feds power to form a fed armed force.

-- Sad thing is when I was born this whole discussion would have been deemed insane. --

The quality of that generation is history. The USA is dead and gone, but for finishing the crying in our beer.

[Mojave]

Nunn v. State, 1 Kelly 243 (Ga. 1846) was a state court decision that was based entirely on rationalizations. It openly admitted being contrary to the other prior federal and state court decisions. It has no precedent value in either the state or federal spheres. It isn't even precedent in Georgia. And it contended, bizarrely, that concealed carry bans were permitted under the Second Amendment.

You cite Presser, carefully leaving out its explicit determination that the Second Amendment does NOT apply to the states. The "rightful resource for maintaining the public security" that it references is the Article 1, Section 8, grant of power to the federal government to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions", not the Second Amendment.

[savedbygrace]

Huh? Care to rephrase?

[Mojave]

You say the actual quote is long and complex. Post it.

[El Gato]

One more reason for all State Constitutions to protect the peoples right to keep and bear arms....

Most do, but in many cases their state Courts won't enforce those provisions. For example, the citizens of the state of Nebraska amended their state constitution, around 1986, IIRC, to provide

All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof.

With the part in italics being the part added. Since then, the State Supreme Court has not overturned a single gun control law based on that provision. Even those which clearly infringe upon the right, declaring such laws to be Constitutional as "valid exercise of the State's police power in reasonable regulation of certain firearms" and "reasonable regulation by statute if the statute does not frustrate the guarantee of the constitutional provision."

IOW, they declared that provision, enacted by the people, to be null and void whenever the legislature intones the magic words "reasonable regulation". Hardly the actions of a republican form of government.

[savedbygrace]

More here:

http://www.minnesotamajority.org/OurPrinciples/RighttoBearArms/tabid/162/Default.aspx

[savedbygrace]

You posted it yourself, in #424.

[El Gato]

Illinois, like most states, provides some level of state constitutional protections guaranteeing a right to keep and bear arms.

Which their courts will not enforce. Hardly the action of a republican form of government, is it?

[Mojave]

Most do, but in many cases their state Courts won't enforce those provisions.

And you think that federal district court judges acting as state overseers will?

I mentioned earlier in the the thread that the Second Amendment has NEVER overturned a firearms restriction in this state. But when Diane Feinstein, then the mayor of San Francisco county, imposed a handgun ban and demanded that all such weapons be turned in, our state courts overturned her ban based on our state preemption laws.

[Mojave]

More here:

All of them 1788 or prior. Check your dates.

[Mojave]

You posted it yourself, in #424.

That's not "long and complex."

[Mojave]

Which their courts will not enforce

Which their courts do enforce

[El Gato]

And the NRA said "Whoopie! We won!"

The NRA wasn't a party, except as amicus, to Heller. In fact they opposed the whole thing from the beginning, preferring legislative solutions. Right up until the end they tried to get Congress to overturn the DC gun laws so as to make Heller moot.

Of course they were also apprehensive that the Court would declare against a "right of the people" in favor of a "power of the states". So would Eric Holder, his associate Jamie Gorelick (she of the wall of separation tha got nearly 3,000 people killed) and their old boss Janet Reno, who argued, or signed on to a brief which argued

Properly understood, the Second Amendment does not prohibit a legislature from enacting a law that has neither the purpose nor the effect of interfering with a State’s operation of its militia in accordance with state and federal law.

Sounds a lot like the argument Mojave is making, doesn't it?

[El Gato]

How does confirming the right of the people to keep and bear arms, to be free from infringement by both federal and state laws “centralize power”? It seems to me it disperses some very real power.

[Mojave]

How does confirming the right of the people to keep and bear arms, to be free from infringement by both federal and state laws “centralize power”?

Look at the history of the incorporation of the 1st Amendment. Local libraries forced to allow perverts to view pornography on their internet terminals by federal order, townships forced to remove crucifixes from public lands and nativity scenes from their town squares, prayers in the local public schools silenced, the Ten Commandments ripped out of local courthouses by order of federal district court judges, etc.

Let's assume that the newly reinterpreted 2nd Amendment gets treated as it was by the Nunn decision you posted. The federal courts decide that concealed carry isn't covered by the 2nd Amendment and that it is somehow antithetical to whatever they decide is valid gun ownership as they create new law from the bench. All of the state "no carry" and "concealed carry" state laws could be voided in favor of the one size fits all 2nd Amendment jurisprudence evolves into, consistent with the ban speech in order to protect it precedents of 1st Amendment incorporation.