A verbis ad verbera
Posted on 06/29/2009 12:49:38 PM PDT by neverdem
For the sake of argument, let's say that a second American Revolution succeeds. What protections would have to be in place for the right to keep and bear arms? We know that the present version of the Second Amendment hasn't done the job. What will?
Just as our Founders felt bound to express what their purposes were, those who take up arms against our present government should feel bound to describe what the improved situation will be.
Circular logic at it's worst. The only reason they aren't more common is because of the unConstitutional Federal over-reach in bloody well "infringing" our Right to own them.
Bootstrapping an unconstitutional infringement into constitutional, brought to you by Justices Scalia, Roberts, Alito, Thomas and Kennedy. Enforced by a host of District and Circuit Courts, on a dim-witted and weak public.
The federal Court jurisprudence on the second amendment is illegitimate. It's fabricated from falsehood and lies. But they have the big guns, and might makes right. Government of men, not laws.
Destroy the premise upon which our Nation was predicated, you've destroyed the legitimacy of the Nations power brokers.
Next up, Claire Wolf and Henry Bowman do a duet.
Will this mean that the President can’t own a gun?
It's not that the laws aren't in effect. It's that the Courts have fabricated the basis for legitimizing many gun laws, against their OWN precedent. The people follow (or not) at the risk of confrontation, imprisonment, and death.
-- Destroy the premise upon which our Nation was predicated, you've destroyed the legitimacy of the Nations power brokers. --
As for the nation's power brokers and the 2nd amendment, I figured out, conclusively to my satisfaction, about 10 years ago, that the feds are completely off the constitutional reservation. Totally illegitimate, corrupt. I see the Heller decision as having the legitimacy of the Dred Scot decision. It is an abomination. And yet, it is the law of the land, and heralded with a cheer of success from the NRA! Hooray! We won!
Screw it. I give up.
If those charged with making, ruling on, and enforcing those same laws no longer follow the Constitutional basis for them, then the social Contract is dead and with it the legitimacy of those laws.
Screw it. I give up.
Welcome to my world.
Next up, Armageddon. Get your tickets while good seating is still available. I can hear the band queuing up now.
To quote Nicholson again (from "The DEPARTED") slightly modified:
Terrorists or Federal agents, when you've got a gun pointed at you, what does it really matter?
You'd think so, wouldn't you? But in the past a lot of egregious cases have slipped into the USSC based on the Fourth Amendment and when they should have been tossed on those same terms, a different result came in a dilution of the rules on evidence. Exceptions to the "Fruit of the Poisonous Tree" aka the exclusionary rule. Don't bet that more of the same and worse could be in the offing.
That was a lengthy discussion and I have not re-read all of it. I don't think it was I who said, "Your concern is unwarranted", but I did address why I think it is very possible to be too pessimistic about the outcome of future decisions.
It seems a fact of life that injustices will occur between decisions and that some people will spend time in prison unjustly.
But my prior argument was that there was plenty of room for Scalia to DISAGREE with Miller later on. Most of his comments are framed as being those of somebody who is obligated to recognize Miller if there is no reason to throw it out.
Scalia RIGHTLY points out that one need not dispose of Miller completely if one EXTENDS Miller to include self-defense in the home. Self-defense with weapons that are commonly owned and not unusual or dangerous preserves Miller and satisfies Heller.
Was Sotomayer involved in the case of the New Yorker charged with possessing nunchucks? I don't think it can be denied that such a weapon is relatively "unusual" and perhaps few of our Founders would have known what they were.
Will the Scalia Court let stand a ban on two sticks tied together with a short piece of chain simply because such a thing is not commonly owned?
You are correct. That was Beelzebubba. My mixup, and I apologize.
-- my prior argument was that there was plenty of room for Scalia to DISAGREE with Miller later on. Most of his comments are framed as being those of somebody who is obligated to recognize Miller if there is no reason to throw it out. --
Two points. First, he did recognize Miller, in the Heller case. My complaint is that his "recognition" is a corruption of fact, logic, and law. He "agreed" with his erroneous summary of Miller, not with what the Miller case actually says. Second, the Fincher case was an opportunity to "disagree with Miller" (exactly what you mean by that is unclear to me -- while I may be incorrect, for now I'll take it as an implication that Scalia could correct what's bugging me about his treatment of Miller in the Heller case), and SCOTUS denied cert, as I predicted it would.
-- Was Sotomayer involved in the case of the New Yorker charged with possessing nunchucks? --
Yes. The Maloney case. It follows the Bach v. Pataki, 408 F.3d 75 (2nd Cir 2005) precedent in Circuit, and holds that the 2nd is not incorporated, "see Presser." This is also a corruption of precedent, but not the Miller precedent.
-- Will the Scalia Court let stand a ban on two sticks tied together with a short piece of chain simply because such a thing is not commonly owned? --
My prediction is "yes," they will let the ban stand. Cert denied. SCOTUS won't give a reason, so "because not commonly owned" would be pure speculation.
SCOTUS denied cert in the Bach case, and that one was on NYS refusal to permit a non-resident/non-in-state-worker to obtain a permit to possess a handgun. Denying cert to a nunchucks case is a no-brainer.
It's possible to recoup legal fees in certain circumstances. Unfortunately, it's possible for the government to create impediments to one's exercise of one's rights without infringing them so severely as to merit compensation or reimbursement of legal expenses.
I am not an expert on Supreme Court personalities, but I can't rule out the possibility that Heller is what it is because that is all Kennedy would agree to.
If that is the case, then Scalia, Roberts, Thomas, and Alito are serving us as best they can by DENYING cert whenever Kennedy is unlikely to go along. Scalia is not permitted to author and publish a majority opinion unless Kennedy signs on.
As for the "erroneous" reading of Miller, that too could be a sop to Kennedy, for all I know. If Kennedy is relying on the erroneous reading of Miller that the short-barreled shotgun is known to be unacceptable, then allowing Kennedy to join a majority in such a mis-reading simply makes it easier later on to reverse that part of the decision.
The point is simply that the majority decision is just that, and it is not the decision of Scalia.
The Heller decision mandates that self-defense is protected by the Second Amendment using an unlocked handgun in the home. All the comments that are not critical to arriving at that decision are suitable for reversing, explaining, or elaborating in later decisions.
The very wording, "nothing in our opinion should be taken to cast doubt on ..." is about as weak a statement as could be made. If it was Kennedy's insistence that such a clarification be made, then it represents a limitation of the present Court more than a limitation of the Second Amendment.
We covered this and other points of disagreement in the previous thread. My point in noting the Fincher case to you and Beezelbubba was to put a concrete instance into view, of how Heller is being used by the Circuits.
The misbehavior of the Circuit courts will hasten the time when the Supreme Court will have to accept a case.
I was very surprised that the Ninth Circuit ruled for incorporation (though they permit the county to prohibit guns on county property).
I wish that the Supreme Court had established that there is an individual right years ago, but given that Heller is just barely a year old, there are many cases already at the Supreme Court and heading there.
The last twenty years have seen a dramatic shift in favor of concealed carry laws. This has happened incrementally as one state after another has recognized that there is no threat from law-abiding citizens.
I see many of the gun rights issues being solved the same way; incrementally. Before asking the Supreme Court to rule that machine guns are legal, let's have a few decisions addressing whether rifles can be outlawed because they have pistol grips, or whether a handgun can be banned because of its color.
How about a decision that a "machine gun" that fires at only sixty rounds per minute is equivalent to a semi-automatic in effect and therefor cannot be banned? This can be followed by a challenge for a firing rate of 120 rounds per minute.
Similar arguments can be made for magazine capacity. If there is a right to keep and bear a ten-round magazine, how can it be possible to outlaw an eleven-round magazine?
ROTFL. SCOTUS sat by for 70+ years as Circuits misconstrued Miller, and then it amplified that misconstruction. SCOTUS doesn't have to be intellectually honest, and neither do the Circuits. They run a kangaroo court system, complete with arms to enforce their rulings.
-- The last twenty years have seen a dramatic shift in favor of concealed carry laws. --
Yes. And I see the states as the most likely vector for revealing the duplicity of the feds. If only a state would get enough balls to actually defend its citizens, with force of arms if need be, against federal corruption and encroachment.
That didn't work out too well last time it was tried. Do you see us fracturing like the Soviet Union?
No. If anything, I see the reverse, where states "merge" into regions, and those regions answer to a central government.
I see the passage of laws that purport to keep the feds out of an area of law (e.g., the "Made in Montana Gun Act") as mere political puffery. The states aren't going to insert themselves between the feds and a state citizen, when the feds file fed charges. They won't even send lawyers, let alone guns and money.
My "if only" comment reflects a low likelihood event (maybe one chance in a million) that a state vector would cause feds to back off on gun legislation. Still, that is more likely than the feds backing off on their own.
The NRA celebrated because we won the first battle of the Second Amendment not because we won the war. The NRA and every single Second Amendment group EXCEPT ONE had asked for a broad ruling on Heller because it would have completely dissolved 20,000 gun laws in one sweep. Even small groups like the Second Amendment Sisters had asked for a broad ruling except that one group.
Now, the NRA and the Second Amendment Foundation are busy suing based on Heller. Except, of course the one group that asked for the narrow view. They have yet to file a single lawsuit.
By the way, when Heller was Parker, the NRA did not want Levy to go through with his lawsuit because at the time, we would have lost. It was before Roberts and Alito.
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