Title of address Judge Reinhardt gave the Harvard Law School Forum: "The Supreme Court and You: Birth, Death and the Quality of Life."
Posted on 12/05/2002 2:34:24 PM PST by Sender
Opinion regarding California AW ban:
...Because the Second Amendment does not confer an individual right to own or possess arms, we affirm the dismissal of all claims brought pursuant to that constitutional provision."
Title of address Judge Reinhardt gave the Harvard Law School Forum: "The Supreme Court and You: Birth, Death and the Quality of Life."
Yep, and the 5th Circuit's ruling included an "up yours" to the other Federal Circuit Courts which had previously delivered "collective right" rulings. The judges in the unnamed Circuits must've *loved* being told to do their homework. This is an "Oh, YEAH?!" response from someone who didn't enjoy being scolded.
The Fifth Circuit's ruling was like, to borrow a quote from Mark Twain, "throwing a rock into a pack of dogs. The one that yelps is the one that got hit." The Ninth Circuit yelped.
Which do you prefer, Emerson or a test of a right to own assault weapons?
Re: Emerson. The Appeals Court affirmed Cumming's ruling that the Second Amendment PROTECTS and indvidual right (very important to recognize that the Bill of Rights/Constitution doesn't grant a damn thing...that it protects that which we possess by virtue of our existence - natural/individual rights) to own firearms. It then went on to apply the wrong standard of analysis - the "rational basis" test. This test is easier to meet than the "strict scrutiny" test which is required to be applied to individual rights.
Re: Assault Weapons. Which definition will be used? The Military defines assualt weapons as those which can be switched from full auto to 3 round burst to semi-auto. The definition used by the 'grabbers and and the Courts is based upon cosmetics and the fact that a particular firearm is semi-auto.
If we had an honest Court, I would rather have them hear a ban on "assault weapons" because the Second Amendment was intended to guarantee the Right individuals to challenge a corrupt and despotic government through force of arms - therefore the Second Amendment grants a protection by it's original intent to weapons with military utility, i.e. "assault weapons" above all others.
The fools that cite Miller have never actually read the Government's brief in that case; or else they would keep as much distance between that case and their untenable position as possible.
I truly fear that SCOTUS will "split the baby" on this issue, rather than follow the Constitution. Such a decision will cause more harm than good and will force those of us that take our oaths to that Document seriously to re-examine the legitimacy of all three branches of Government in their current incarnation.
Cross your fingers. I have no desire to take a stand based on principle, but would do so because my oath before God demands that I do so.
But what happens if the Supreme Court rules in favor of the 5th and invalidates the NFA, GCA, and Brady Act? Some demented psychotic homeless liberal who-hears-voices-type yahoo will buy a machine gun and go shoot up an elementary school. Congress will hastily implement an unresearched vote-buying soccer-mom-appeasing knee-jerk act (like it always does -- see the establishment of the Homeland Security Agency as an example) and possibly just repeal the Second Fricken Amendment! The states will go along "for the children" (how many signed on to the stupid Equal Rights Act?). Then where will we be?
Although the above may be a little over the top, bear in mind "unintended consequences." What could be the unintended consequences of getting a strong RTKBA ruling?
As I re-read it, it seems they found a "cops exception" to the premise that citizens have no costitutional right to have guns. AW seems to have nothing to do with it. I haven't read the decision yet.
Either way, lame law. Cops are civilians. (I know, they think think they aren't) This decision moves us closer to the unthinkable.
Either 2A will work, or not. It will be a defining moment for our childrens future either way.
FReegards
Please explain how this would be any different if said looney shot up an elementary school with a pump shotgun?
Are you saying that it's just fine with you if a constitutionally protected right is savaged because someone might do something stupid? So license-only freedom of speech and government oversite of religious institutions would be okay too I guess, eh?
Congress will hastily implement an unresearched vote-buying soccer-mom-appeasing knee-jerk act (like it always does -- see the establishment of the Homeland Security Agency as an example) and possibly just repeal the Second Fricken Amendment! The states will go along "for the children" (how many signed on to the stupid Equal Rights Act?).
Repeal? Let 'em try. And do remember that it matters not how many signed on to the ERA, the only thing that matters is that it wasn't enough.
Although the above may be a little over the top, bear in mind "unintended consequences." What could be the unintended consequences of getting a strong RTKBA ruling?
The consequences? The gun-grabbers would have to step out of the shadows of their "reasonable restriction" and "for the children" blandishments and identify themselves loudly as what they are. Elitists that don't want the American people to have the ability to defend themselves from an out-of-control government.
With this case, the USSC can rule on both an individuals right to own (keep) and carry (bear) arms.
The constitutionality of puchasing only 'one gun per month' can be challenged.
The constitutionality of the State of Illinois to charge for a FOID card. Or any State that charges for a CCW permit. This could be challenged under MURDOCK V. PENNSYLVANIA 319 US 105 (1942) which concluded in part:
"A state may not impose a charge for the enjoyment of a right granted by the federal constitution…. The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which 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.' "
The Illinois State Constitution itself can be challenged. It states:
SECTION 22. RIGHT TO ARMS
"Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed."
CCW permits themselves can be challenged since the State keeps a record of the individual in violation of the Firearm Owners' Protection Act which states:
3. No such rule or regulation prescribed after the date of the enactment of the Firearms Owners' Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established.
As I mentioned in my post #60, I am concerned that the two cited cases are too narrow. Emerson dealt with federal law denying guns to those under restraining orders. Even if the decision were overturned, it would only mean that the 'restraining order' law was found unconstitutional and would need to be eliminated or changed. To refresh your memory, that case did not deny his individual right to own a weapon, just that he was not allowed to own a weapon while under a restraining order. He claimed his rights were abridged because of the possibility of committing a crime, not that he had committed one.
And I don't like Silveira v. Lockyer because it's about "assault weapons", not about the RKBA which California has not even addressed. When it comes to the 2nd Amendment, I don't believe that California ever adopted it under the 14th Amendment.
All I'm saying is there there has to be cleaner cases where the fundamental right to keep and bear arms can be heard in front of the USSC.
It appears that the decission will be limited to whether the 2nd amendment refers to the individual or not. That is, of course, a major decision in and of itself.
The other issues I mentioned will have to wait.
Interesting part of the Question. You might want to read U.S. v. Rock Island Armory from 1991.
This is a 1991 District Court decision: Since its passage in 1934, the registration, taxation, and other requirements of the National Firearms Act ("NFA") have been upheld by the courts under the power of Congress to raise revenue. (Footnote 5) However, 18 U.S.C. sec. 922(o), which became effective on May 19, 1986, prohibits possession of machineguns, and thereby repealed or rendered unconstitutional the portions of the National Firearms Act which provided for the raising of revenue from the making, possession, and transfer of machineguns made after such date. As the government conceded at oral argument, the United States refuses to register or accept tax payments for the making or transfer of machineguns made after 1986. (Footnote 6) Thus, sec. 922(o), as applied to machineguns made after May 19, 1986, left the registration and other requirements of the National Firearms Act without any constitutional basis.
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