DC Circuit denies en banc rehearing for Parker case

http://volokh.com/posts/1178641972.shtml ^ | 5/8/07

[William Tell]

robertpaulsen said: "Since the second amendment only protects Militia-type weapons, it is necessary to determine if the weapon qualifies."

Fine. And once the jury decides that a weapon IS a militia-type weapon, what will the jury do with that information?

[William Tell]

tpaine said: "There are three of us reading nonsense like - the second amendment only protects Militia-type weapons."

What's really unfortunate is that that particular bit of nonsense was originated by a Supreme Court of the US. Even a proper reading of Miller reveals a Supreme Court which believes that the right to keep and bear arms did not exist prior to the Bill of Rights. Otherwise, they would be obligated to consider the scope independent of the wording of the Second Amendment. It is a hopeful sign that recent analysis properly recognizes that the scope is not limited by the militia clause.

[William Tell]

This must have pre-dated the creation of lower courts with proper trial jurisdiction, I guess. I don't think this can happen today, can it? Under today's court organization such a case would probably go to the DC Circuit.

Are there other cases heard by a jury before the Supreme Court? How many and when was the latest, if you know? It is quite interesting. Might make a fine video docu-drama with considerable content relative to jury powers.

[William Tell]

Lurker said: "Check out the link I provided in 369."

I did try. But the document I was trying to read wouldn't download properly.

I am not unfamiliar with the organization. A local leader, in fact, is an active NRA member and provided me with his FIJA card. I will definitely develop some expertise prior to any future jury duty.

[robertpaulsen]

"Fine. And once the jury decides that a weapon IS a militia-type weapon, what will the jury do with that information?"

Then they must acquit Miller and Layton of any charges brought under the section of the NFA that violates the second amendment. But you say that means the jury is determining the law rather than the facts. Which is why I said that a separate hearing would/should be held to determine a) is the weapon suitable for a Militia and b) if so, how does Section 11 of the NFA violate the second amendment?

This should be sorted out before it even goes to trial. The prosecutor needs to know that the charges are constitutional.

At this point, if I was the prosecutor, I would simply charge Miller and Layton with not having a tax stamp and be done with it. That, I know, is constitutional.

[robertpaulsen]

"Otherwise, they would be obligated to consider the scope independent of the wording of the Second Amendment."

If I claim protection under the second amendment, you're saying the U.S. Supreme Court could come back and say, "No, no. You mean you claim protection under the 9th amendment" or, "You should claim protection under the 14th amendment"?

I thought they would simply rule on whether or not the second amendment protects the right. Am I incorrect?

[William Tell]

robertpaulsen said: "At this point, if I was the prosecutor, I would simply charge Miller and Layton with not having a tax stamp and be done with it. That, I know, is constitutional."

Let's take another tack. What wording of a proposed Second Amendment would protect all arms and prohibit the imposition of taxes?

How about: "The right of the people to keep and bear arms shall not be infringed"? Must we add "even by the requirement for a tax stamp"? Would a "tax certificate" then be allowed? How about adding, "including that no taxes shall be levied"? Does that do it?

Now how about registration? Do we now need: "The right of the people to keep and bear arms shall not be infringed, including by levy of taxes or requirements for registration"?

Now how about the requirement for serial numbers? We all know that serial numbers enable registration.

Now we have to have: "The right of the people to keep and bear arms shall not be infringed, including by levy of taxes or requirements for registration or the marking of arms with serial numbers".

Now how about arms particularly suited to criminals?

"The right of the people to keep and bear arms shall not be infringed, including by levy of taxes or requirements for registration or the marking of arms with serial numbers, nor shall arms be prohibited based on potential for criminal use".

Then there's that open-carry, concealed issue.

"The right of the people to keep and bear arms shall not be infringed, including by levy of taxes or requirements for registration or the marking of arms with serial numbers, nor shall arms be prohibited based on potential for criminal use; nor shall the bearing of arms concealed or carried openly be regulated."

Are we there yet?

How about Kalifornia's "not unsafe handgun" list?

"The right of the people to keep and bear arms shall not be infringed, including by levy of taxes or requirements for registration or the marking of arms with serial numbers; nor shall arms be prohibited based on potential for criminal use; nor shall the bearing of arms concealed or carried openly be regulated; nor shall arms be regulated as to safe design or operation."

Now, of course, having enumerated so many particulars, the anti-gunners will have a field day claiming that all other infringements are obviously permitted, else they would have been included as well.

We haven't even touched on "normal capacity magazines" or those dreaded semi-automatic "assault weapons", or massively lethal sawed-off shotguns, or pepper-spray.

Why don't you pitch in here and suggest a wording that would prohibit tax stamps and all this other nonsense? How is it that all these issues somehow manage to escape "infringing"?

[tpaine]

How is it that all these issues somehow manage to escape "infringing"?

In the socialistic majority rule mind, - all these issues are reasonable regulations using the police powers of govt.

"The power to regulate is the power to prohibit", in the communitarian view.

[patton]

BTW, I got an A on my decision analysis term paper for grad school, predicting DC’s next move. My conclusion was appeal en banc, stall, and then appeal to the USSC.

Have they appealed to the USSC yet?

I missed the part where Barry moved to repeal the law. DOH!

He was bought. I am not sleezy enough to be a lawyer. LOL.

[robertpaulsen]

"What wording of a proposed Second Amendment would protect all arms and prohibit the imposition of taxes?"

What wording of a proposed First Amendment would protect all speech including libel and slander? All rights may be reasonably regulated.

[William Tell]

patton said: "Have they appealed to the USSC yet?"

I think they have 90 days to appeal during which the decision is stayed pending appeal. The ninety days will be up some time in August I think. That means that any appeal will be filed in plenty of time to be considered during the next Supreme Court session.

[William Tell]

robertpaulsen said: "What wording of a proposed First Amendment would protect all speech including libel and slander? All rights may be reasonably regulated."

Been many cases of criminal libel or slander lately? How about describing some of the recent cases.

Most anti-gunners are afraid to claim that the laws on the books are "reasonable regulations" of a protected individual right. That is why they are comforted by the militia clause nonsense and why they assure themselves that there is nothing "fundamental" about self-defense.

Yet most of these same people argue that grade school children have a protected right to be exposed to homosexuality outside the control of their parents and that school children mustn't self-administer aspirin but the school staff can take that same child to an abortion mill without parental consent or notification.