Calaveras County Safe Again (ATF at it Again!)

http://freedom4um.com/cgi-bin/readart.cgi?ArtNum=4458 ^ | 4/29/05 | Jeff Knox

[P_A_I]

Paulsen unwittingly says something true:

"-- We're just making this up as we go, --
"-- If the second amendment is incorporated, the USSC defines what the second amendment protects. --"

Indeed, if we continue to allow the USSC to work under the legalized fiction that the 2nd Amendment needs to be "incorporated" to be valid, we have permitted them to exercise a power they do not possess. A power they're simply "making up"..

Thanks bobby..

[Ken H]

You're just repeating your error. In the case you proposed, USSC would be defining the scope and meaning of the Fifth Amendment, not the Second.

Think incorporated 1st amendment, shouting fire in a theater. The USSC says it's not allowed.

IIRC, the USSC said that the First Amendment did not protect a right to shout fire. Can you cite the text where they said you can't shout fire in a theater?

A state cannot say it is.

Cite the text which backs that up, please.

[LibertarianInExile]

RP, don't get all huffy with me. If you want to say that the Embargo Act was appropriate use of federal power, there's a fine argument to be made there, and that's fine with me. But don't expect me to agree with you, or to look at the Embargo Act--or Jefferson's administration--as some shining example of how the federal government's powers were best explained by the Founders. After all, this is also the guy that bought Louisiana without the power to do so, and fought an undeclared war on Tripoli. The Embargo Act was a miserable failure and only Constitutional because there could not have been a better centralizer on the court to back it up--even the Hartford Convention Federalists acknowledged that the Jeffersonian "anti-Federalism" was stretching the Constitution to the point they wanted to amend it to further restrict the Constitutional prerogatives of the federal government.

And you misread my intimation about 1884--what I was saying was that the post Civil-War era was rife with centralization, that 1884 is not such a great pick insofar as grabbing a date to rely upon as to the Constitutionality of a state OR federal action. I'm not at all implying there's some time limit on Congress to invent powers. I'm stating clearly that regardless of Supreme Court decisions granting Congress power to do so, it has never had the powers you claim.

As to the 9th and 10th, well, heck, just because today's Supreme Court says the sky is green and the sea is purple doesn't make it so.

[Ken H]

I meant to respond to this gem too:

Prior to incorporation, each state decided.

That is true, but incomplete. With incorporation, each State still decides. Are you saying otherwise?

[robertpaulsen]

"or to look at the Embargo Act ... as some shining example of how the federal government's powers were best explained by the Founders."

Jefferson and his Secretary of State at the time, James Madison, were both Founding Fathers. James Madison wrote the U.S. Constitution.

One would think he would have said to Jefferson at the time, "Hey, Tom. This wasn't what I intended when I wrote the Commerce Clause".

[robertpaulsen]

"With incorporation, each State still decides. Are you saying otherwise?"

Of course.

Six years after Gitlow, the Court anchored this view, stating in Near v. Minnesota that "It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the 14th Amendment from invasion by state action."
-- Near v. Minnesota, 283 U.S. 697, 707 (1931)

[Ken H]

"It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the 14th Amendment from invasion by state action."

That makes my point even better.

1. USSC said that yelling "fire" is not protected by First Amendment.

2. Then USSC incorporates the First Amendment. Now that ruling applies to all the States.

3. And what is the result? It's still left up to the States to decide what to do about yelling "fire".

Justice Holmes: The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.

[robertpaulsen]

"And what is the result? It's still left up to the States to decide what to do about yelling "fire"."

So you're saying that the state could allow a person to yell fire? I don't think so.

And likewise for CC. If incorporated, the USSC defines what is protected, not the states. That's the disadvantage of the incorporation of any amendment.

[robertpaulsen]

"You're just repeating your error. In the case you proposed, USSC would be defining the scope and meaning of the Fifth Amendment, not the Second."

They're saying a state CC law, as written, violates the 5th amendment.

Since Marbury v. Madison, the USSC has had the power to define the "scope and meaning" of the 5th amendment. Actually, that's their duty.

So what's your point?

If not incorporated, the USSC can define the Second Amendment however they wish. It has no effect on state law. Whatsoever.

Federal law, yes.

[P_A_I]

robertpaulsen admits :

Since Marbury v. Madison, the USSC has had the power to define the "scope and meaning" of the 5th amendment. Actually, that's their duty.

'Actually', in the above comment you admit that since ratification, the USSC has had the power, and duty, to decide cases "arising under this Constitution".

If not incorporated, the USSC can define the Second Amendment however they wish.

The fiction of 'incorporation' has no bearing on the USSC ability to decide 2nd Amendment cases, as you've just admitted with the 5th.

It has no effect on state law. Whatsoever.

USSC decisions effect State 'laws' that infringe upon our rights; - as you admitted just above, they've always have had that duty..

[Ken H]

So you're saying that the state could allow a person to yell fire? I don't think so.

By saying it was not protected by the First Amendment, the USSC defined it as a State issue, of which the Court could take no cognizance. Period.

And likewise for CC. If incorporated, the USSC defines what is protected, not the states.

If CC is not protected by the Second, it's not protected whether incorporated or not.

If USSC says CC is protected by the Second and applies it to the States, then all citizens in the US would have a right to CC. That's what really chaps you.

[Allosaurs_r_us]

Was your intent to state that the North used the Constitution to abolish slavery?

 

I guess my intent is to say since the Preamble to the Constitution states "all men are created equal", this is what the north used, via Abe Lincoln, to write the Emancipation Proclamation and declare slavery illegal. I am not familiar with all of mess this caused in congress. After all there already were a few states wanting to secede before this event took place.

 

Abe's Proclamation was pretty much the straw that broke the camel's back. The civil war was more than just the fight to end slavery, although it was the north's main argument to belittle the southern states and try and force their submission to the north's politics.

 

So in that way I guess I am saying the Constitution was used to end slavery. Does that clear it up any?

[Ken H]

In the case you proposed, USSC would be defining the scope and meaning of the Fifth Amendment, not the Second.

They're saying a state CC law, as written, violates the 5th amendment.

That's what I said.

Since Marbury v. Madison, the USSC has had the power to define the "scope and meaning" of the 5th amendment. Actually, that's their duty.

Correct.

So what's your point

That if CC is not protected by the Second Amendment, the case hinges entirely on how they apply the 5th.

That if not incorporated, the USSC can define the Second Amendment however they wish. It has no effect on state law. Whatsoever. Federal law, yes.

Which means if they declare CC a right at the Federal level, States are still free to ban CC. If incorporated, then States banning CC would have those laws struck down. That's the real problem, eh?

[Smokin' Joe]

The Emancipation Proclamation was written in 1863. Every State which could seceede had already done so, and the war was well on.

The proclamation only freed slaves in the South, where Lincoln had no clearly defined jurisdiction at the time. Northern slaves were not universally freed until the war was over.

Lincoln also used numerous extra-Constitutional measures, most notably the suspension of Habeas Corpus, to accomplish his aims, which ultimately resulted in a de facto National Government, as opposed to a Federal Government.

That is why I asked if you were referring to the mutual demise of the institutions (the Constitution and Slavery).

[Allosaurs_r_us]

That is why I asked if you were referring to the mutual demise of the institutions (the Constitution and Slavery).

 

So is it your position the Constitution is no longer followed at all?

 

If that is the case I sincerely hope you are wrong. There is a great deal wrong in the judicial system at the present time, but there are also those who are working tirelessly to restore Constitutional law back to what the founders intended.

 

I am a member of the ACLJ. "The American Center for Law and Justice" It is an organization who's sole purpose is to combat the ACLU's attempts to trash the Constitution.

 

Here are excerpts from one of there latest newsletters in case you are interested in supporting the fight:

 

The ACLJ has filed a petition asking the Supreme Court to overturn a lower court's decision that resuscitates the nearly 20-year-old RICO lawsuit brought by the pro-abortion National Organization for Women (NOW) against pro-life activist leaders and organizations.

 

Two years ago, we fought this case and won at the Supreme Court - but N.O.W. has not stopped trying to get around our HUGE victory ... so here we go again.

Our petition contends that the lower federal court of appeals defied the Supreme Court by reopening the case - another blatant example of the judicial activism running rampant in our courts today.

We are asking the Supreme Court to intervene - again - and close this case, that threatens the lives of millions of unborn babies and your constitutional right to free speech, once and for all.

Two years ago, we thought this was over. A solid victory for pro-life America.

The Supreme Court of the United States, in an 8-1 decision, ruled that the RICO statute - originally designed to combat organized crime and the illegal drug trade - could not be used to stop peaceful protests by pro-life advocates in front of abortion clinics.

They ruled that the judgment of a lower court should be reversed ... and a nationwide injunction vacated.

But the vicious and powerful abortion industry, including NOW and others (so focused on silencing Christians and saving their multi-million-dollar baby-killing industry), would not accept defeat.

And a panel of judges in a federal appeals court sided with them - against you ... against us ... and AGAINST THE SUPREME COURT OF THE UNITED STATES - by declaring that the original injunction should remain in effect.

So we are back at the Supreme Court. And we will not rest until this issue is settled once and for all.

I am personally overseeing this crucial case with our senior, most-experienced legal team in Washington, D.C. They are working hard researching and preparing the next major brief due in just a few weeks to the Supreme Court in this case.

Our attorneys and legal staff are devoted to this endeavor and are logging astonishing numbers of work-hours ... because the opposition is so well funded, and the cause is so vitally important.

And the bottom-line expense, as you can imagine, is great.

If we lose:

• The pro-life movement we have worked so hard to advance could be stalled.
• The abortionists will figure they can get anything they want.
• Activist judges will continue unchecked.

  With your help, we will continue to fight this legal battle for you against the ruthless abortion industry ... and against judicial activism.
  
  Please stand with us - for the lives of unborn babies and for your rights and freedoms.

 

I have removed their links for donations as that just isn't done on FR, but I strongly recommend we all get involved with the work these people are doing.

[Richard-SIA]

A post at http://www.nfaoa.org provides some necessary legal citations!

If his lawyer can't get this info, maybe we can send it to him?

---

26 U.S.C. § 6103(a) of the Internal Revenue Code prohibits disclosure of tax return information unless expressly authorized by an exception. See generally Baskin v. United States, 135 F.3d 338, 340-42 (5th Cir. 1998) (discussing history of disclosure prohibition). Section 6103(a) provides generally that “no officer or employee of the United States, . . . shall disclose any return or return information obtained by him in any manner in connection with his service as such an officer or an employee or otherwise under the provisions of this section.”

Section 7431(a) of the code in turn provides a cause of action to an aggrieved taxpayer for a violation of § 6103: “If any officer or employee of the United States knowingly, or by reason of negligence, . . . discloses any return or return information with respect to a taxpayer in violation of any provision of section 6103, such taxpayer may bring a civil action for damages against the United States . . . .” 26 U.S.C. § 7431(a)(1).

[robertpaulsen]

"By saying it was not protected by the First Amendment, the USSC defined it as a State issue, of which the Court could take no cognizance. Period."

Period? Making things up again?

"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."
-- Justice Holmes, Schenk v. United States (1919)

The USSC not only said that it was not protected by the First Amendment, they also said that the words were of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. In other words, it violates other rights.

Given that, what makes you think that the state could extend the right? It would be immediately challenged as a violation of the First Amendment.

"If CC is not protected by the Second, it's not protected whether incorporated or not."

It's not protected by the federal government, no. It may be protected by the state.

"If USSC says CC is protected by the Second and applies it to the States, then all citizens in the US would have a right to CC. That's what really chaps you."

What really chaps me are the people like you who would assume this.

[robertpaulsen]

"Which means if they declare CC a right at the Federal level, States are still free to ban CC. If incorporated, then States banning CC would have those laws struck down."

True, but I thought we agreed for sake of argument that the right to CC was not a right at the federal level? Why are you trying to confuse things?

[Lurking Libertarian]

Let's hope the Ninth Circuit kicks this up to the USSC.

This was a state, not federal, prosecution, so the appeal will be to the California Court of Appeal, not to the 9th Circuit.

[P_A_I]

Lurking Libertarian wrote:

This was a state, not federal, prosecution, so the appeal will be to the California Court of Appeal, not to the 9th Circuit.

From the article:

" -- 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.
Wilmshurst is planning to appeal the conviction, [to the California Court of Appeal] and has [also] filed suit [with the Ninth Circuit Federal Court] 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. -- "

[My additions are bracketed]

Let us hope that the Ninth Circuit kicks this up to the USSC.