"...along with instructions..."
Posted on 05/06/2003 3:45:03 PM PDT by Plainsman
Edited on 04/13/2004 2:42:25 AM PDT by Jim Robinson. [history]
A divided federal appeals court on Tuesday declined to reconsider its December ruling that the Second Amendment affords Americans no personal right to own firearms.
The December decision by the 9th U.S. Circuit Court of Appeals upheld California's law banning certain assault weapons and revived the national gun ownership debate. With Tuesday's action, the nation's largest federal appeals court cleared the way for an appeal to the U.S. Supreme Court, which has never squarely ruled on the issue.
(Excerpt) Read more at sfgate.com ...
There is none. Other than to pressure your CongressCritters do the job. They hold the power of impeachment and removal from office over federal judges. They don't exercise it much, and when they do, it's not for violating their oath to "support and defend", but rather for having their hands in the cookie jar, or being caught in bed with an intern of the same sex, or somesuch as that. Constitution? Most of the CongressCritters themselves haven't read it since they took office. They certainly don't evidence any particular reluctance to pass legislation in the face of clear Constitutional prohibition against and/or lack of delegated authority in various schemes.
1939. 1934 was the year the National Firearms Act was passed which the Miller case was challenging.
The juxt of the Fed's case was that a citizen could only own arms which had military purpose.
Close -- arms which were militarily useful. That is, arms which could be useful *if* you chose to use them in a military context. Your version sounds too much like a requirement that the arms be *employed* for a military purpose before they are protected, which is not the case.
Miller's sawed-off shotgun, at the time, was argued as not meeting military use.
Actually, it wasn't. Nor was it argued as *meeting* military use. This was the problem in the Miller ruling -- because the Justices came to the conclusion that the weapon's military usefulness was the key issue *after* both sides had argued their cases (the Supreme Court listens to arguments, *then* goes to consider the case in chambers), neither side had known to provide any evidence on that issue at *all*.
Miller failed to show, and the judgement was defaulted.
No, actually. His lawyer still argued the case, and a sensible verdict was made. See below.
Hence the stupid rule about a minimum of 18" on a barrel of a shotgun.
Actually, that issue was left hanging, although a lot of people mistakenly read the Miller case as saying that sawed-off shotguns *weren't* militarily useful.
In point of fact, here's the ruling from the Miller decision:
IN THE ABSENCE OF ANY EVIDENCE TENDING TO SHOW THAT POSSESSION OR USE OF A "SHOTGUN HAVING A BARREL OF LESS THAN EIGHTEEN INCHES IN LENGTH" AT THIS TIME HAS SOME REASONABLE RELATIONSHIP TO THE PRESERVATION OR EFFICIENCY OF A WELL REGULATED MILITIA, WE CANNOT SAY THAT THE SECOND AMENDMENT GUARANTEES THE RIGHT TO KEEP AND BEAR SUCH AN INSTRUMENT. CERTAINLY IT IS NOT WITHIN JUDICIAL NOTICE THAT THIS WEAPON IS ANY PART OF THE ORDINARY MILITARY EQUIPMENT OR THAT ITS USE COULD CONTRIBUTE TO THE COMMON DEFENSE.Some mistakenly read this as, "since there's no evidence that this weapon is militarily useful, we decide that it's not". That's quite incorrect.
Translated from the legalese, this actually plainly says, "since no evidence was presented (either way) on the suitability of the firearm for militia use, and since that's not a matter that's so obvious this Court can simply presume an answer on the matter ('not within judicial notice'), then we literally 'can not say' one way or the other whether it meets such a test".
In short, they said, "we dunno", and they remanded that question back down to the lower court for a determination (which never took place).
Fast forward to today. According to the last (Miller) SCOTUS ruling, if the military uses it, so can we. And yes, today, they have shotguns with barells shorter than 18 inches.
Correct. And not only whether the military *does* actively use it, but whether they *could* use it effectively if they so chose.
All that Waco proved is that barricade is a bad idea. The fact remains that no politcian can maintain a 300 yard perimeter forever. IT gets eve ntougher for every hundred yards you extend that perimeter. Even an old sob like me can bust milk jugs at 400 yards with an old bolt action Enfield with iron sights. There are those who are way better than I am.
And the only reason any F-Troopers got out alive when they ran out of ammo was because the Davidians voluntarily observed a cease-fire.
Even if only one tenth of 1% of gunowners become "active", that is still nearly 100,000 Patriots. Not only that, but many folks who don't "actively participate" will lend support to those who do through various means. It can be as overt as providing food or water, or as covert as playing "gee Officer, I didn't see what direction he went in".
Either way, Americans will resist any unlawful or unconstitutional edicts. It's in our nature.
I am no spring chicken, but I'm not sure just how much I am prepared to lose or how far I am willing to go should some SOB actually pass a total ban/confiscation scheme.
Different folks will make different decisions for different reasons. A husband responsible for his wife and 5 kids may decide one way, and a grandfather who was just been given 3 months to live by his doctor may decide another way.
Until the day comes, it's hard to say how anyone will react. Some of today's most outspoken patriots will be among the first to lick the jackboot and surrender their guns. On the other hand, there will be those who are apathetic today, who will rise to the occasion.
And of course, there will be those who 'stay the course' on the side of Freedom the entire way through.
1. That a small group of armed individuals can and did stop a direct attack by government agents cold in it's tracks.
2. That once the attack has been stopped, it is not a good idea to stand around and negotiate.
10th Amendment (my personal favorite):
"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."
Now, this is beautifully ambiguous like so much of the Constitution, but what it clarifies is the Constitution is Exclusionary meaning that anything the Govt. can't think of is OK. This is the most critical part of our system of government.
Now that my little lecture is done, I completely agree with your (and most right thinker's) analysis of the 2nd Amendment. It is clear that the Founding Fathers (especially, God bless 'im, T. Jefferson) wanted to make sure the government should never be more powerful than the collective might of the people. A very realistic portrayal can be seen in the movie Red Dawn.
"...along with instructions..."
The point is not to debate the question of a "right to die." The point is the Constitution is silent on this issue as it is on the abortion issue and a million other issues left to the legislatures. The Constitution puts the decision of policy questions like this in the hands of elected representatives of the people, not unelected judges. Oregon's right to die law is constitutional, just as is Colorado's prohibition against assisted suicide.
The distinction between the "right to die" issue and the right to keep and bear arms is that, like the other rights in the Bill of Rights, the Founders viewed the right as so fundamental to republican government that they chose to write it into the Constitution, to make sure no future legislature would attempt to take that right away.
What most people don't get is that activist judges don't just create rights, they also take them away, as the Ninth Circuit is attempting to do with the Second Amendment
Actually it was even less than that. The Court ruled that the lower court should not have ruled that possesion of a sawed off shotgun was constitutionally protected absent some evidence to that effect, they only suggested that military utility was one such criteria for such protection. Hoever, a few years later the first circuit in Cases stated that almost any firearm would have some military use, pointing to the underground and guerilla movements by then active in Europe opposing the Nazies. So they said that the SC must not have meant that the "no military/militia use" was the only valid test for Constitutionality of legal restrictions on arms possesion.
This same arguement could have been made, along with various documented examples of regular US troops using short barrelled shotguns, if Miller hadn't been dead and his co-defendent hadn't already plead guilty in return for a reduction in sentence to time served.
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