High court to look at ban on handguns

McClatchy-Tribune ^ | Nov. 9, 2007, 12:18AM | MICHAEL DOYLE

[tacticalogic]

Starve.

[ctdonath2]

There's no difference between state governments and the federal government? Anarchist tripe.

You'll notice I was talking about soldiers vs. militiamen, not state vs. federal. ...or, apparently, you didn't notice.

[epow]

Gun-control critics contend that the well-regulated militia is beside the point, and say the Constitution protects an individual's right to possess guns.

That IS NOT what gun control opponents contend, a well regulated militia is exactly the point.

We the people ARE the militia, and the 2nd A was intended by the framers to guarantee us the right to keep and bear arms. The 2nd A was never about duck hunting or clay pigeons, it was intended to guarantee the people's resort to armed resistance if government tries to overthrow it's constitutional bounds and all non-violent means to stop it's encroachment on our liberties have been exhausted.

[xsrdx]

Call me crazy, but maybe they meant the people, who are part of a well regulated state militia, have their right to keep and bear arms protected from federal infringement. I always thought it was a militia that was necesary to the security of a free state, not an armed public.

A novel argument, but in reality by reserving the RKBA to the authority of the state government you are de facto infringing on the peoples right.

Can't have it both ways; your argument loses steam when you say it's ok for the state gov't to infringe away.

The "militia" was citizens with guns in their homes, not just armories; led by community leaders, not government agents.

Mason and Monroe did not envision the militia as a permanent standing army like the national guard is today, nor did they advocate ANY infringement -state, federal or otherwise - on the people's RKBA.

[robertpaulsen]

"Could 922 (o) survive a “strict scrutiny” test? "

True. The test would change from "rational basis" to "strict scrutiny" if the RKBA is declared to be a fundamental individual right.

I don't think 922(o) would be affected under that new test, but the silly federal Assault(-style) Weapons Ban couldn't survive. Then again, it has already expired, so that's a moot point. If the second amendment remains unincorporated, states are free to pass their own AWB's under the rational basis test.

This does lead to two questions. Can the RKBA be declared an individual right, but not a fundamental individual right? If the U.S. Supreme Court finds that the RKBA is a fundamental individual right, must the states also protect it (ie., incorporation)?

The 5th amendment says that for capital crimes "a person" must be charged by a Grand Jury. Certainly this is an individual right - it says "a person". Is it fundamental?

The reason I ask is that the Grand Jury Clause of the 5th amendment is not incorporated. States are not required by the 5th amendment (though I believe some do, sometimes) to convene a State Grand Jury in all capital crime cases.

[robertpaulsen]

"Apparently being an "agent of the state" is not a good thing."

Is there something wrong with using "member of a well regulated state militia" instead?

"Agent of the state" is vague and inflammatory and you know it. He's trolling, and you know that too.

[tacticalogic]

Looks like he has a valid point to me. Under the conditions you’ve laid out for what qualifies as a “member of a well regulated militia” they can only operate as “agents of the state”. You have indeed made it a distinction without a difference, and I don’t see what’s imflammatory about pointing that out.

[robertpaulsen]

"but RP, you seem to be suggesting that neither of the first two categories of activity would allow the feds to regulate aviation, and they must resort to the third category."

Well, first off, you've lumped everything together under "regulate aviation" and that needs to be broken into two sections.

Congress (via the FAA) regulates interstate aviation using their power to regulate the channels of interstate commerce. Congress (via the FAA) regulates intrastate aviation using their power to regulate those activities having a substantial relation to interstate commerce.

If a private pilot, flying intrastate, does not have a substantial relation (affect) on interstate commerce (ie., flying outside of controlled airspace), Congress (via the FAA) has no power to regulate those activities.

[tacticalogic]

Congress (via the FAA) regulates intrastate aviation using their power to regulate those activities having a substantial relation to interstate commerce.

Don't forget the part about "or could conceivably have if everyone did it".

[publiusF27]

This does lead to two questions. Can the RKBA be declared an individual right, but not a fundamental individual right? If the U.S. Supreme Court finds that the RKBA is a fundamental individual right, must the states also protect it (ie., incorporation)?

I don't see why not, but then, I don't see why the 5th amendment clause you mentioned shouldn't be incorporated.

[robertpaulsen]

You trying to smoosh everything together -- milita, individual, state, federal -- and say the second amendment protects all weapons for all persons for all uses from infringement by all levels of government; federal state and local.

With that as a starting point, I don't know how to respond and even where to begin.

So I won't.

[publiusF27]

If a private pilot, flying intrastate, does not have a substantial relation (affect) on interstate commerce (ie., flying outside of controlled airspace), Congress (via the FAA) has no power to regulate those activities.

Why not? The first two categories can't reach intrastate activity? Rhenquist said the second one could.

Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.

Are you saying the first category (channels of commerce) can't reach intrastate activity?

[robertpaulsen]

"they can only operate as “agents of the state”.

The well regulated Militia referred to in the U.S. Constitution -- Article I, Section 8, and the second amendment -- had officers appointed by the state in which the members resided and reported to the Governor of each state. Yes, the members of the Militia are acting on behalf of the state in which they lived for the benefit of that state.

Why do you choose to use the descriptor "agents of the state"? To be inflammatory. You're as bad a troll as your cohort. Go away and come back when you have something real to debate, other than your stupid labeling.

If that's all you're capable of, then your posts don't interest me. They're childish.

[robertpaulsen]

"I don't see why not"

So, in your opinion, the RKBA in the second amendment can be declared an individual right, but not declared a fundamental individual right?

If that's the case, then the strict scrutiny test cannot be used; at least the way I read it.

[tacticalogic]

Can you describe for me the difference between operating as an “agent of the state”, and operating “under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof”?

[publiusF27]

No, you misunderstood. I think it might be declared that the 2a protects a fundamental right, and it might be incorporated and used against state gun control laws, and I really don’t see what would be so bad about that.

It’s true that future rulings could also validate state and federal gun control laws, but isn’t that already happening? To ask the question another way, when was the last time someone successfully mounted a 2A challenge to any law? It hasn’t happened, and won’t any time soon, unless the Heller case changes things.

[robertpaulsen]

"Rhenquist said the second one could."

He was referring to something different. Child Labor Laws would be an example. There, the channels are not being regulated, nor the commerce itself. But the fact that children are being used to manufacture the commerce that ships interstate, provides Congress with the nexus and the authority to regulate.

I really don't want to go off on a tangent here. I don't see any connection to guns.

"Are you saying the first category (channels of commerce) can't reach intrastate activity?"

Well, since those are interstate channels of commerce, I'd have to say no.

But, if there is some nexus between the intrastate and interstate channels, where one is dependent upon the other, then yes. The Shreveport Rate Cases come to mind.

[robertpaulsen]

Can you describe for me the difference between operating as a "member of a well regulted state militia", and operating “under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof”?

It's your labeling I object to. I'm done explaining my position.

[tacticalogic]

But the fact that children are being used to manufacture the commerce that ships interstate, provides Congress with the nexus and the authority to regulate.

Is there really any requirement for the commerce being manufactured (putting aside the obvious problems with the idea of "manufacturing commerce") to actually be shipped interstate for Congress to assume authority to regulate it?

[tacticalogic]

Sorry, I was never very good at obfuscating the obvious with a lot of legalese.