Alrighty. :)From your link, last year's winners:
Jockey Frog Name Distance Bob Fasano Red Bull 20' 2 1/2" Sean Hooley Joyce 19' 10" Michael Ziehlke Jimmy the Jumper 19' 2"
Posted on 04/29/2005 5:23:31 PM PDT by P_A_I
Calaveras County Safe Again
By Jeff Knox (Manassas, VA, April 27)
The people of Calaveras County – the remote central California mining region made famous by the gold rush of 1849 and the jumping frogs of Mark Twain – can breath easier now that Richard Wilmshurst has been brought to justice. Wilmshurst was convicted last month of illegal possession of a machinegun and illegal possession of "Assault Weapons" in California. The judge sentenced Wilmshurst to three years probation and ordered that he dispose of his "arsenal". Wilmshurst, by the way, is a car dealer and land speculator with a law degree, a federal firearms import license, and a class 3 license. This could be the Second Amendment case we've been waiting for or it could be another case of a white-hat taking a fall because white-hats are easier targets than black-hats.
Wilmshurst's troubles began in January of 2003 when an ATF agent performing a routine inspection of his import inventory mentioned that a couple of the guns were not legal for Californians to own. Wilmshurst wasn't worried; the guns were within the umbrella of his import business and were intended for distribution outside the state of California for sale to law enforcement.
In February, officers from the California Department of Justice Firearms Enforcement Division, using information obtained from ATF, staged raids on Wilmshurst's home and Angel Camp car dealership. The raids were conducted in full "storm-trooper" fashion with black "ninja" suits, heavy body armor, and true assault weapons. This being "people friendly" California, the assault force included a medic to monitor 69-year old, stroke survivor, Wilmshurst's blood pressure as they dumped the contents of his safe and confiscated every gun he or his businesses owned.
Even though it is a violation of federal law for information obtained from records generated in compliance with import license regulations to be used directly or indirectly as evidence against the licensee, the judge refused to hear arguments that the warrants were illegal and that all evidence seized was inadmissible. Instead, he barred any mention of federal law in the courtroom and instructed the jury that if the prosecutor proved that Wilmshurst was in possession of the firearms in question (something that Wilmshurst never denied), that the jury must return a guilty verdict.
The guilty verdict was summarily returned and last week, Wilmshurst was sentenced to three years probation and, as a convicted felon, ordered to dispose of all of his firearms.
The judge in the case – who happens to be the same judge that ruled against Wilmshurst in a property case currently on appeal – expressed dismay that Wilmshurst is showing no remorse for his crimes… Wilmshurst is planning to appeal the conviction and has filed suit against the Attorney General of California for violating federal law in conducting the raid and for violating Wilmshurst's civil rights under the Second Amendment.
The Firearms Coalition is bringing the Wilmshurst case to the attention of Second Amendment scholars and firearms civil rights organizations in hopes of generating "friend of the court" briefs and perhaps getting Mr. Wilmshurst the specialized legal assistance this case clearly deserves.
We will keep you posted as the case develops. In the meantime, let this be a reminder: Your white hat is no defense against aggressive police, prosecutors, and judges. There are many things that Richard Wilmshurst would rather be doing with his time, money and midnight oil. Cross your T's and dot your i's…
Yours for the Second Amendment,
Jeff
Jeff Knox Director of Operations The Firearms Coalition
Well, under the 14th, the Constitution says that states must equally protect all their citizens under law (that there are to be no protected classes), then the Supreme Court must rule against Michigan and for the student. And if I had sworn to uphold the Constitution, that's how I'd probably be forced to rule at the point of a gun, no matter how wrong I find the federal imposition. I pointed out the EEOC to note the result of the EEOC's presence in so many egregious violations of the EPC, not to demonstrate that it was Unconstitutional in and of itself.
However, I'd prefer to rule against the 14th itself, having found that the 13th, 14th and all subsequent amendments were imposed under duress, and that contracts imposed under duress, even social ones, are void under every legal precedent.
Suppose the Court incorporates the Second Amendment, ie, it now applies to all States. The Court also rules that the Second Amendment protects State militias, but affords no protection at all to individuals. How would that change the current legal status of the RKBA for any citizen?
First, it'd make the true arbiter of any RKBA the federal judiciary. Second, it'd mean the states could no longer infringe upon the second amendment as it applied to state (authorized?) militias without federal judiciary approval--and with it, states could do so. More dangerously, it'd mean that the state laws that are based on the 2nd Amendment to the federal Constitution could also be construed, with new federal precedent, to NOT bear out an individual right to bear arms. It'd mean that any individual state that had pressed to restrict individual gun ownership would now have its case settled in regard to indivuals. The Supreme Court could also decide what constitutes militias in that same decision, were it to so wish, and restrict them to the National Guard or whatever fully federally-authorized militias existed. That would be an ultimately fatal restriction to the 2nd. It would have killed any meaning, as the federal government would then be able to restrict RKBA absolutely.
Can you give me any scenario where a negative USSC decision on the Second Amendment would weaken the RKBA from where it now stands?
The USSC decision you mentioned above is a start. The Could certainly go the OTHER direction, and rule that the RKBA is an individual right guaranteed all...but as I said, I think that'd be winning a battle and losing a war. I'd prefer the USSC ruled that it has no power to interpret state actions regarding guns at all. I'm certainly not saying that the Court couldn't play a positive role right now in promoting the RKBA. But like it did in Plessy, once establishing that it may rule on the issue, it might again reverse itself.
To take it a step further, the SupCt could determine that the 2nd Amendment is part of that living document that died, and since international consensus is against it, it gets the Schiavo treatment. It could do that, and has done as much with the EPC in Grutter, obviously.
I haven't looked it up, but I'd bet OSHA was passed under the Commerce Clause using the substantial effects test. Not sure about EEOC, but my guess is that it was either under the Commerce Clause or General Welfare Clause. robertpaulsen says (and I think he's right) that every federal gun law was passed under the Commerce Clause.
Yep, aren't those wide Congressional powers granted with the best of intentions always eager to bite Americans on the ass?
Justice Clarence Thomas has said the Commerce Clause substantial effects test has had the effect of swallowing the Tenth Amendment.
This is a good thing? Now, under the Commerce Clause, anything goes? By all means, let's keep the federal judiciary as the arbiter of rights! /sarc
A delegated power is therefore not reserved to the States. Wasn't the Supreme Court delegated original jurisdiction in cases in which a State shall be a party by Art.III Sec.2?
Where is the federal government delegated the power to evaluate state action on any level? Only in a few places. One that says that states have to be a republic. One that states that Congress can ensure equal protection. And one that states the Constitution is supreme law of the land (to most people's reading--where state and federal law CONFLICT, federal law is supreme). None of those actually incorporate the Bill of Rights to the states. The federal judiciary read all that into the 14th.
Agree about the abuse under the EEOC. Do you think the EEOC is constitutional, according to your understanding of the Commerce Clause?
To take it a step further, the SupCt could determine that the 2nd Amendment is part of that living document that died, and since international consensus is against it, it gets the Schiavo treatment. It could do that, and has done as much with the EPC in Grutter, obviously.
Do you agree that such a decision, in and of itself, would make no change to any State or Federal laws concerning the RKBA?
If I'm not mistaken, there has never been an anti-gun law at any level of government which the USSC has voided on the basis of the Second Amendment. So far, all levels of government have the green light from the Court to ban private gun ownership.
I wrote: I haven't looked it up, but I'd bet OSHA was passed under the Commerce Clause using the substantial effects test. Not sure about EEOC, but my guess is that it was either under the Commerce Clause or General Welfare Clause.
Yep, aren't those wide Congressional powers granted with the best of intentions always eager to bite Americans on the ass?
Do we agree that the substantial effects doctrine is not justified by the Commerce Clause?
This is a good thing?
Not in my opinion.
Where is the federal government delegated the power to evaluate state action on any level? Only in a few places. One that says that states have to be a republic. One that states that Congress can ensure equal protection. And one that states the Constitution is supreme law of the land (to most people's reading--where state and federal law CONFLICT, federal law is supreme).
And some provisions in Art. I Sec.10.
None of those actually incorporate the Bill of Rights to the states. The federal judiciary read all that into the 14th.
The First Amendment says, "Congress shall make no law...". The remainder make no mention of Congress. The Second, for example says, "... the right of the people to keep and bear arms shall not be infringed".
What is the justification for interpreting it as, "...shall not be infringed by Congress"?
Guys, We need the name of this judge who would rule by his own whims rather than the law. His "I am the law" attitude should get this man impeached, disbarred and possibly prosecuted. This IS the action by almighty people in black dresses that is destroying the rule of law. Peace and love, George.
BTT!!!!!!
Do you think the EEOC is constitutional, according to your understanding of the Commerce Clause?
---As it stands, seems likely that it's constitutional under McCulloch and the 14th, that the last provision of the 14th enabling Congress to take such action as necessary to enact such would make an EEOC constitutional. Notwithstanding that, I'd prefer a specific provision to state it. I don't like McCulloch.
Do you agree that such a decision, in and of itself, would make no change to any State or Federal laws concerning the RKBA?
---Heck, no. Right now, it's amorphous as to whether there is an individual RKBA. That happened, it'd be set in stone. RKBA would be dead and buried.
If I'm not mistaken, there has never been an anti-gun law at any level of government which the USSC has voided on the basis of the Second Amendment. So far, all levels of government have the green light from the Court to ban private gun ownership.
---Not quite. You're right, to my knowledge, as to there being no significant anti-gun holding yet. United States v. Miller is not particularly anything, but it's not particularly wide in breadth or pro-gun, nor is it anything more than the single vague SCOTUS holding on the topic.
---And I think a better analogy to having the green light is that of having no signal at all. The guidance is such that, were the court to declare state laws unconstitutional now, it'd be like getting pulling you over for blowing through an intersection when you didn't know there were such things as police. Police exist--they're just hanging out at the stationhouse, in some folks' imaginations, and in others, the police don't exist at all. Plus, the recent 9th Circuit-made right-to-homemade-machine-guns is so far federal, and a decent scaleback of the commerce clause.
Do we agree that the substantial effects doctrine is not justified by the Commerce Clause?
---Sure. There is no justification for federal law that doesn't directly deal with insuring continued interstate commerce, i.e., the transfer of goods or services directly from state to state. The 'substantial effects' test is bollocks.
The First Amendment says, "Congress shall make no law...". The remainder make no mention of Congress. The Second, for example says, "... the right of the people to keep and bear arms shall not be infringed". What is the justification for interpreting it as, "...shall not be infringed by Congress"?
---A reading of the Constitution will demonstrate that grants of governmental authority are generally described as "powers." See, e.g., U.S. Const. art. I, § 1 (describing "legislative Powers"); U.S. Const. art. II, § 1 ("executive power"); U.S. Const. art. III, § 1 ("judicial Power"). To read this or any part of the Bill of Rights of the Federal Constitution as protecting the citizenry against ALL government intrusion is the same as imputing a new federal power to interfere with state laws that might infringe on those areas. There is no such power granted specifically, as every other power is (with the exception of the many obviously abused powers we've already discussed, such as the commerce clause, the equal protection clause, the necessary and proper clause, etc.). I read the Bill of Rights--all of it--with a harsh federalism, because I think that a libertarian who fears government has to. There is no enumeration of power that says the federal government gets to do jack about state governments where they do NOT infringe on enumerated federal powers. Even expanding just a couple amendments is judicial expansionism asking for federal interference, as Gitlow proved by starting this steamroller effect.
---To further demonstrate why, I'd hazard a guess none would argue here that the First Amendment would NOT apply to the States. Conservatives generally defend a view of the Second that is every bit as broad as the American Civil Liberties Union's (ACLU) wacko view of the First, but I would be against the extension of the First for the same reasons I'm against the Second. The First Amendment applying to the states simply doesn't make any sense, considering that the amendments were proposed by the anti-FEDERALISTS and appended to the FEDERAL Constitution. And in fact, NONE of the Bill of Rights was "incorporated," UNTIL SCOTUS SAID SO, regardless of the rights we enjoy now, because the States weren't restricted that way when the Founders were around. In fact, the Supreme Court even ruled in the 1870s Slaughterhouse Cases that the 14th Amendment protections--protections that were expressly INTENDED to impinge on states--DIDN'T include the first eight amendments. That's since changed because the Supreme Court changed into an expansionist one. The Bill of Rights isn't all "incorporated" now because the Supreme Court hasn't gotten around to making up that law yet, either. Palko is bullshit--either it ALL is incorporated or it ALL isn't, and the fact is that it ALL isn't.
---Now, anyone with the intention of agreeing with states that abrogate the God-given right to bear arms is not my ally. But Constitutional federalism isn't there as a pure positive for conservatives or libertarians. It's there to guarantee a smaller federal government, regardless of the wishes of the conservative populace that the federal government 'be on our side.' For us to argue for federalism in one context and against it in another, regardless of the historical evidence of the Founders' intentions, is to my eyes hypocritical and counterproductive. Our aims are much better served with a smaller federal government in all arenas, and Americans can see a difference almost immediately in those areas where states apply their own laws--people generally prefer to live in the less oppressive areas, as historically, migration has proven! That federalism doesn't IMMEDIATELY serve our national aims here doesn't make it mutably so. It's a fixed writing. Either it applies or it doesn't, and considering this section as differently applicable is doing the same thing liberals do, applying federal laws to get what we consider the right thing the wrong way. In the long run, we would be better served by a federalist Constitution than the most libertarian one we could force into being.
Alrighty. :)From your link, last year's winners:
Jockey Frog Name Distance Bob Fasano Red Bull 20' 2 1/2" Sean Hooley Joyce 19' 10" Michael Ziehlke Jimmy the Jumper 19' 2"
Jeff is Neal's son.
Neal passed away January 17, 2005 -- a victim of colon cancer. His wife and children are continuing his work:
The Firearms Coalition
P.O. Box 3313
Manassas, VA 20108
The Bill of Rights in the U.S. Constitution originally applied to the federal government only.
These were rights which the federal government could not violate. The states, of course, were free to do so, --
89 posted by robertpaulsen
LibertarianInExile wrote:
Having seen the lack of result from any sort of attempt at discussion with him, I'm not responding to P_A_I, but I'm willing to state it clearly here that I am in agreement with Mr. Paulsen, and note that it happens rarely so I'm pleased as punch to have him on my side for once.
You are pleased that a State is violating our RKBA's? - So be it.
The Constitution shouldn't extend to state action, because when it does, it inevitably results in more problems than it solves. Better 50 little governments f up than one huge government leviathan, expansive in its jurisdiction, get to determine what they do, what they're allowed to do, and rule them all.
Nope.. It's better that all levels of government be forced to conform to the Constitution by the checks & balances built in to the system. Checks you & Paulsen would empower States to ignore.
Better that every good conservative move out of California, sick of that state government's oppressive nature, before the federal government decide to move in to make it conservative, because as soon as the feds have the power to make a state conform one way, they will damn sure use that power to make it conform any way they see fit.
The Constitution has the power to make a state conform "one way", -- to have a republican form of government that obeys the Law of the Land.
I am a libertarian. I see any big government given power as a threat, and especially when that power is given for a good reason, and especially when that government is the biggest we've got. The 2nd Amendment is a great restatement of what the law should be in every state, and most do have some state constitutional guarantee of the basic right of human beings to bear arms in their own defense, a right granted to them not by government but by virtue of their Creation.
But in the states that don't have such a clear guarantee as the 2nd, or the ones that ignore clear constitutional guarantees, the federal government should not be the power that stops the state action taking away guns: the people should be.
The people, acting constitutionally, have that power, and they delegated it to the USSC to decide such issues, and to the President to enforce such decisions.
At some point, you cannot rely upon government to stop what you should be stopping, as a citizen of the Republic and your State.
The majority is ruling in California, not the US Constitution, - and you and paulsen approve. --- Be ashamed.
I've noticed that for awhile now. I'm reading Judge Napolitano's book Constitutional Chaos, and he's pretty much saying that too. Law enforcement officers often of complete disregard for other laws while pursing enforcement of their area of expertise, and too many judges don't seem to care about the rights of the accused.
Just on a small matter in a completely local case, my some was charged with disorderly conduct in a college town. In this case, he actually wasn't the culprit 0 he was singled out of a group. When his girlfriend spoke up for him, she too was cited. He did not plead guilty to the misdemeanor, and went to the District Magistrate to fight it. He brought 2 witnesses to speak for him. When his case came up, the police went first, and the DM listened attentively to everything they said. Then when it was my sons turn to defend himself, the DM started doing paperwork and talking to other people while my son was talking, and refused to let his witnesses speak. He was, of course, found guilty and had to pay the fine plus costs. He would have felt better if the DM had actually listened to the defense...
My point here being that regardless of the level (local, state or federal) we have far too many legal authorities who are more interested in getting along with their law enforcement buddies and not concerned enough about actual laws (which we have too many of anyway), justice, or the rights of the accused.
There are two parts to my scenario -- you're mushing them together. First, let's look at today, the current situation.
In a CC state, if the CC law is challenged by a citizen of that state as being unconstitutional because if violates his constitutional right to X, it would be heard by the state justice system, possibly all the way to the State Supreme Court. Yes, it would present a dilemma for the court, and they would have to weigh the two rights. (Perhaps an adjustment to the existing state CC law would solve the citizen's concern -- see what I mean?)
For sake of argument, what's the worst case? The State Supreme Court would void the CC law for that state only.
What if, however, the State Supreme Court ruled the CC law constitutional and the citizen then took it to the USSC? Would they even hear it? (I'll explain in a bit) Again, for sake of argument, let's say they take the case.
Again, worst case, the USSC finds that the state CC law violates the citizen's right to X. But again, the ruling would only affect that state because all state CC laws are different, and the USSC cannot declare that every one of them, as written, violates a citizens right to X.
That's why I don't think the USSC would even hear the case, especially when the citizen's own State Supreme Court could see no violation, and no other citizens are bringing suit against their states.
OK. Now let's incorporate the second amendment. The second amendment now applies to all the states. The USSC determines what rights are protected under the second amendment, and we both agree for sake of argument that CC is not a protected right.
A citizen claims the a state CC law (which, again, the USSC does not even recognize as a constitutionally protected right) violates his constitutional right to X. Now, there is no dilemma, no conflict. The law is struck down, AND is struck down in all 45 states that allow CC.
Be Ever Vigilant!
In this case, that judge should be imprisoned for violating his oath of office AND his wilful breach of unalienable Constitutional rights.
First of all, the USSC has refused to even hear any second amendment challenge due to a state law, saying that the second amendment is only a bar to federal action.
Second, when it comes to federal laws, I believe that only Miller was challenged on second amendment grounds -- all the others, including the AWB, were challenged on Commerce Clause grounds or other areas.
Seems to me that if I elected officials that voted for a re-institution of slavery, those laws would be struck down by the USSC as unconstitutional.
But when it came to concealed carry, the USSC said to us citizens in Illinois that the second amendment is a bar to federal action only.
You told me the second amendment applies to the states. Who's wrong?
This is exactly my point. Concealed carry is decided by each state, not the federal government.
If the second amendment applied to the states, then all states would have to allow concealed carry (or none). The first amendment applies to all states -- all states must allow nude dancing. Correct?
Cutting to the meat of it, you conclude:
" --- OK. Now let's incorporate the second amendment. The second amendment now applies to all the states.
[An aside.. In constitutional reality, it always has applied.]
The USSC determines what rights are protected under the second amendment, and we both agree for sake of argument that CC is not a protected right.
A right to bear arms clearly means 'carry'. -- A 'determination' by the USSC that CC was not a protected right would be a clear infringement.
A citizen claims the a state CC law (which, again, the USSC does not even recognize as a constitutionally protected right)
[Dream on; -- your aside is question begging wordplay]
violates his constitutional right to X. Now, there is no dilemma, no conflict. The law is struck down, AND is struck down in all 45 states that allow CC.
Garbage theoretical argument in, garbage imagined 'decision' out.
Paulsen, you really are becoming desperate; - your weird theories about our 2nd Amendment rights are becoming laughable.
Are you saying that Congress has no authority to prohibit the interstate commerce of items they deem harmful to the public (infected livestock, diseased nursery stock, moths, plant lice, and other insect pests injurious to plant crops, even stolen vehicles and women to be used for prostitution)?
You've agreed with Justice Clarence Thomas on some of his pronouncements. Obviously, a Supreme Court justice carries some weight with you. Do you then disagree with Chief Justice Taft who said, "Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other States from the State of origin."
--BROOKS v. U S, 267 U.S. 432 (1925)
First of all, the USSC has refused to even hear any second amendment challenge due to a state law, --
For a good reason. The 2nd is very clear, and States are infringing upon it. -- The USSC has no objection to those infringements.
-- saying that the second amendment is only a bar to federal action.
That's a fabrication, they've never said that, nor does the Constitution.
Second, when it comes to federal laws, I believe that only Miller was challenged on second amendment grounds -- all the others, including the AWB, were challenged on Commerce Clause grounds or other areas.
Catch 22, " -- the USSC has refused to even hear any [such] second amendment challenge -- "
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