California Assault Rifle Case May Move To USSC. (A rather well thought out legal analysis)

UPI ^ | MICHAEL KIRKLAND (UPI Lawyer)

[Desmond]

Every able-bodied male aged from 18 to 45 is, by federal law, a member of the militia. That has been the case since 1792.

"Militia," from Merriam-Webster: "4 : the whole body of able-bodied male citizens declared by law as being subject to call to military service"

Furthermore, you can't use "a well-regulated militia" to limit "the right of the people." It's incorrect English.

"A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."

Similarily, you cannot use the above sentence to restrict the reading of books to registered voters only.

The well-regulated part means the government has a responsibility to ensure uniform order, methods, and armament (as opposed to an unorganized (read unregulated) ragtag and less effective militia).

[ought-six]

The Miller case DID NOT say the 2nd Amendment was collective and not individual. The Miller case just said sawed-off shotguns are not usual military weapons, and thus were not protected by the 2nd Amendment. The Miller lie is predicated upon the hope and belief that the average American is too dim to understand the ruling. And since the average American gets his or her "facts" from the liberal media, which wants to ban the private ownership of firearms, they take it as gospel.

[Atlas Sneezed]

Prediction:

IF the USSC takes the case, they will find that there is an individual right, remand it to California state courts to determine if the law is a "reasonable restriction" (like our buddy Ashcroft advocates). The CA courts, including on appeal, will find that the law does not unreasonably restrict the RKBA, and the USSC will not hear an appeal on that issue, since there is no conflict among the circuits.

[PhilipNolan95126]

With all due respect, this article's interpretation of the Miller case is all wrong. The issue of private versus collective right was not the issue in the Miller case and I do not see that a fair reading of Miller argues for a "collective" right. (See http://www.fedworld.gov/cgi-bin/waisgate?waisdocid=9008359860+0+0+0&waisaction=retrieve )


Even so, the argument for a "collective" right is just plain stupid. The word "people" means "people". Do we not think that if the drafters of the Bill of Rights had meant to say "states" they would have used that word?


Why does the word "people" in the second amendment mean "the states" but in every other amendment the word "people" means people? Look at every other amendment in the Bill of Rights, from First to Ninth. Who's rights are being identified and protected? The peoples', not the states. And in the Tenth Amendment the drafters were able to distinquish between the people and the states, and they say so.


The Second amendment guarantees the rights of people (i.e. individuals) to keep and bear arms notwithstanding what nine nincompoops in black robes might say.


To paraphrase Sir Thomas More (at least the screenwriter of "A Man for All Seasons") "Some men think the earth is round, others think it flat. It is a matter capable of question. But if it is flat, will the courts's decision make it round? And if it is round, will the court's decision flatten it?"

[45Auto]

Briefs Filed in Support of Silveira v. Lockyer

Defendant Does Not Oppose Petition for Hearing

August 12, 2003 KeepAndBearArms.com --

Several gun rights organizations met the August 7 deadline for filing an amicus brief in support of the Silveira v. Lockyer lawsuit. The organizations who filed "friend of the court" briefs

in support of the case include:

• Women Against Gun Control

• Second Amendment Sisters

• Doctors for Sensible Gun Laws

• Pink Pistols

• Jews for the Preservation of Firearms Ownership

• National Rifle Association

There is no record on the Supreme Court docket of any anti-gun groups filing in opposition -- but it can take a few days to get listed. The most surprising among the above list was the NRA. NRA's "Chief Attorney" had earlier attempted to have the case dismissed. After he failed to have the case dismissed, he later threatened to file a brief in opposition to the case when it was appealed to the Supreme Court.

Gary Gorski, lead attorney for the plaintiffs, said the law firm NRA had chosen to file the brief contacted him last week and congratulated him on a quality Certiorari Petition to the Supreme Court. According to Gorski, the firm's representative informed him that NRA's brief would be in support and would be filed by the deadline. Gorski has since received a copy of their brief. This is a welcome redirection of NRA's resources.

Each of the other organizations listed above was already expected to file in support of the Silveira plaintiffs. Gorski worked with their respective representatives to help them through the process as needed, and they got the job done. Kudos to each of them -- and to the many people involved -- for standing up for the Second Amendment in what could be the first pure Second Amendment case to be heard by the Supreme Court since 1939.

The Justices return to the High Court the first week in October. They are expected to announce some time in their first week or two whether or not they will hear the Silveira case. Attorneys for the Silveira plaintiffs are working on the plaintiffs' brief in anticipation of the case being heard. They believe the chances for the case being heard are "better than 90%." A recent action -- or inaction -- by California attorney general Bill Lockyer, a defendant in the case, might be another indicator of the case's potential for hearing. The State of California and Mr. Lockyer have chosen not to file a brief in opposition to the Petition filed by the plaintiffs. Typically, one would expect vehement opposition from defendants in such a high profile and potentially volatile case.

[45Auto]

The NRA has climbed on the bandwagon in this case; initially they were opposed for a number of reasons, most of which really did not make much sense. Their Amicus brief can be found here:

NRA Brief

[45Auto]

The NRA amicus brief makes a strong argument for incorporating the 2nd under the 14th, much as has been done over the last century with most of the Bill of Rights amendents. If "incorporated" and thus, applied to states, then places like California would have a much higher burden of proof to surmount before any more rotten gun laws could be passed.

[PhilipNolan95126]

One other thing, just who or what is the militia? Let's look at federal law.

TITLE 10 USCA Sec. 311.

Sec. 311. - Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are -

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia

In other words the "people" are the militia. It is indisputable by anyone with a modicum of intelligence that the founders intended there to be a well armed populace (i.e. the militia) and that is why it was necessary to preserve the right of individuals to have arms.

Neither despotics actions by state governments nor the whims of the judiciary can change the meaning of the Second Amendment (although, since they have superior fire power and a well demonstrated propensity to use it against the people - they may have the power to amend the Constitution any way they like)

[TERMINATTOR]

It said they were not presented with evidence that a sawed off shotgun was a militia weapon. It did NOT say that it was illegal, or not protected by the 2A. It also strongly implies that the NFA '34 is unconstitutional. It clearly says that the RKBA is an individual right.

Molon Labe!

[alwaysconservative]

You guys, and all the FReepers on this thread, just ROCK!! I learn more from the good folks at FR than anywhere else. Thanks!!!!!

[TERMINATTOR]

It's significant that the court recognized Miller was part of the militia, even though he had not joined any specific militia group.

Militia - Got Liberty?

[LoneRangerMassachusetts]

The Second Amendment, in its entirety, says, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

Some elements to the argument to get straight:

1. The Constitution uses every individual when referring to people. It’s all the people and not some of the people. It doesn’t specify government people only.

2. The founders were as aware as the ancients that the enemy arose from within as well as striking from across the borders.

3. It takes a militia to fight the enemy. This can be a militia of oppressed citizens fighting a Tyranny from within as well as militia soldiers drafted from the citizenry fighting for the Republic against a foreign power. The second amendment does not distinguish one or the other type of militia.

4. The second amendment says only things but says them clearly. First, it takes a militia to keep the state free. One man cannot do the job himself. The enemy will dictate which type of militia to do the job. Second, All of the people have the right to keep and bear arms. This is necessary for the militia of the first kind (the citizens) to guard against the militia of the second (the despot’s enforcers).

How could the Founders been more clear?

Why do the collectivists strip relevant historical context and understandings from the constitution to arrive at argument to their own end. Why of course, the collectivists want all the guns so they can impose their brand of Tyranny.

[pierrem15]

What I understand is that the reasoning in Miller means you have the right to own the arms of an infantryman, i.e., an assault weapon, because it is useful for military purposes while a sawed-off shotgun is (supposedly) not.

As a matter of law Miller effectively supports an individual right; as a matter of fact, it found the sawed-off shotgun not to be covered.

That's it in a nutshell, and all the bloviating about a "collective right" (which the states or fed gov already had historically or via other parts of the constition) is a complete fabrication.

However, I have absolutely no doubt that, after the affirmative action and sodomy cases, we will lose every single 2nd amendment case 6-3 that comes before the SCOTUS, probably on the basis of a "collective rights" interpretation.

[GhostofWCooper]

They won't take the case.

The state can't have this decision. They have devoted their efforts to disarming most Americans. Since the Constitution clearly guarantees the right of individuals to keep and bare (carry!) arms, the Court would have to find yet another penumbra or emanation to forbid it. It is much easier and safer to just be obstinate and not hear it.

The way they have been liberalizin' lately, I'd rather they didn't hear it myself. They're liable to cowtow to the press and the powers that be...

[GhostofWCooper]

bare = bear...

=)

[Congressman Billybob]

I agree with you that the Miller case does not justify either its own conclusion, or the later decisions that courts have hung on this peg. My point was that this is a relatively fair article because it reveals the weakness in the Miller decision itself. And, yes, I am well aware of the long list of quotes from the Framers making it quite clear that the "right to bear arms" is a personal, self-protective right of the highest order.

Don't assume that because I appreciate the article that I have any use for the Miller decision. A weather report that says "a hurricane is about to hit," is a GOOD weather report if a hurricane IS about to hit and it gives you sufficient warning to get your windows boarded up. Few reporters have the ability or the incentive to go into the facts of a Supreme Court case and show what it's made of. This one did.

Congressman Billybob

[marktwain]

The Supreme Court has NOT been silent about the 2nd Amendment.

There is a timely book out by Alan Korwin, who is the foremost publisher of firearms law books available.

It is titled something like "2nd Amendment decisions of the Supreme Court" The decisitons are overwhelmingly pro individual right, I have been told. I haven't got my copy of the book yet.

[CHICAGOFARMER]

What I understand is that the reasoning in Miller means you have the right to own the arms of an infantryman, i.e., an assault weapon, because it is useful for military purposes while a sawed-off shotgun is (supposedly) not.
As a matter of law Miller effectively supports an individual right; as a matter of fact, it found the sawed-off shotgun not to be covered.

That's it in a nutshell, and all the bloviating about a "collective right" (which the states or fed gov already had historically or via other parts of the constition) is a complete fabrication.

However, I have absolutely no doubt that, after the affirmative action and sodomy cases, we will lose every single 2nd amendment case 6-3 that comes before the SCOTUS, probably on the basis of a "collective rights" interpretation.


xxxxxxxxxxxxxxxxxxxxxxxx

I agree with paragraph 1 and 2.

However, the collective rights approach is the liberal anti gunner approach put forth by every politican, liberal judge, anti gun group in the nation. The 6-3 you talk about I have no comment.

Go to http://www.keepandbeararms.com/

for the best data on the subject.

[pierrem15]

Thanks for the link!

I had forgotten the execrable Presser v. Illinois, where the Federal courts refused to consider the 2nd Amendment to be an incorporated right.

Amazing how they can decide which rights are incorporated and which are not, isn't it? I hope someone reminds the SCOTUS of Condi Rice's father when they consider whether or not the 2nd is incorporated!

[William Tell]

pierrem15 said: "...as a matter of fact, it found the sawed-off shotgun not to be covered."

Not exactly. They said that they had no evidence that such a weapon would be useful to a militia. The case was remanded to a lower court (which I am not sure), but it is still unclear to me who had the burden of proving that the shotgun did or did not have usefulness to a militia.

I would presume that the government had the burden to prove that the shotgun was not useful. Certainly there is no indication that our Founders intended some burden on the people in this matter.