Posted on 11/09/2007 3:17:09 AM PST by cbkaty
Justices to decide whether to take up case on strict limits approved in D.C.
WASHINGTON — The Supreme Court will discuss gun control today in a private conference that soon could explode publicly.
Behind closed doors, the nine justices will consider taking a case that challenges the District of Columbia's stringent handgun ban. Their ultimate decision will shape how far other cities and states can go with their own gun restrictions.
"If the court decides to take this up, it's very likely it will end up being the most important Second Amendment case in history," said Dennis Henigan, the legal director for the Brady Campaign to Prevent Gun Violence.
Henigan predicted "it's more likely than not" that the necessary four justices will vote to consider the case. The court will announce its decision Tuesday, and oral arguments could be heard next year.
Lawyers are swarming.
Texas, Florida and 11 other states weighed in on behalf of gun owners who are challenging D.C.'s strict gun laws. New York and three other states want the gun restrictions upheld. Pediatricians filed a brief supporting the ban. A Northern California gun dealer, Russell Nordyke, filed a brief opposing it.
From a victim's view: Tom Palmer considers the case a matter of life and death.
Palmer turns 51 this month. He's an openly gay scholar in international relations at the Cato Institute, a libertarian research center, and holds a Ph.D. from Oxford University. He thinks that a handgun saved him years ago in San Jose, Calif., when a gang threatened him.
"A group of young men started yelling at us, 'we're going to kill you' (and) 'they'll never find your bodies,' " Palmer said in a March 2003 declaration. "Fortunately, I was able to pull my handgun out of my backpack, and our assailants backed off."
He and five other plaintiffs named in the original lawsuit challenged Washington's ban on possessing handguns. The District of Columbia permits possession of other firearms, if they're disassembled or stored with trigger locks.
Their broader challenge is to the fundamental meaning of the Second Amendment. Here, commas, clauses and history all matter.
The Second Amendment says, "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed."
Gun-control advocates say this means that the government can limit firearms ownership as part of its power to regulate the militia. Gun ownership is cast as a collective right, with the government organizing armed citizens to protect homeland security.
"The Second Amendment permits reasonable regulation of firearms to protect public safety and does not guarantee individuals the absolute right to own the weapons of their choice," New York and the three other states declared in an amicus brief.
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.
Clashing decisions
Last March, a divided appellate court panel sided with the individual-rights interpretation and threw out the D.C. ban.
The ruling clashed with other appellate courts, creating the kind of appellate-circuit split that the Supreme Court likes to resolve. The ruling obviously stung D.C. officials, but it perplexed gun-control advocates.
If D.C. officials tried to salvage their gun-control law by appealing to the Supreme Court — as they then did — they could give the court's conservative majority a chance to undermine gun-control laws nationwide.
I’ll leave you to your adventure then. Adventures, perhaps. You’ll spend a lot of time getting moved around so he can have a clean cup ; ).
Both, but I don't think we'll ever get that toothpaste back into the tube.
"And how do you square non-incorporation of this particular right under section 1 of the 14th amendment with the finding that it's an individual right? Is it somehow different from the other rights?"
There are other individual rights that are not incorporated. The protection of your right to be heard by a Grand Jury in capital crimes does not apply to the states. The protection of your right to a trial by jury in civil cases does not apply to the states. The U.S. Supreme Court has never said that the third amendment applies to the states.
So, no, the second amendment is not "different".
For incorporation, the Court would have to find that some right was fundamental to the concept of life, liberty, or property -- due process would then demand that the states protect that right. It's totally up to five justices to make that determination. I don't know their criteria.
What an entertaining notion.
There is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several States, the Declarations of Rights in the separate States are no security. Nor are the people secured even in the enjoyment of the benefit of the common law. George Mason -Objections to This Constitution of Government. November 22nd. 1787
"The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both." - William Rawle. 1829. A View of the Constitution of the United States of America
"No free government was ever founded, or ever preserved its liberty, without uniting the characters of citizen and soldier in those destined for the defense of the State. Such are a well regulated Militia, composed of the freeholders, citizen, and husbandman; who take up arms to preserve their property, as individuals, and their rights as freemen." - James Madison, United States Congress, Bill of Rights Ratification, 1779
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Art 6 Para 2. US Con
The First 10 Amendments to the Constitution as Ratified by the States December 15, 1791
Preamble
Congress OF THE United States begun and held at the City of New York, on Wednesday the Fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.:
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
What an odd notion indeed...
Far from putting legislation into the hands of the FedGov, it exempts it from both. Just because your idiot courts keep screwing it up and re-writing the Constitution doesn't mean you have to twist the original meaning.
For 150 years. That's your explanation. That's how your support your claim.
You're right and the courts have been screwing it up for 150 years. And the funny thing is, you cannot explain why the courts started applying the BOR to the states. Or, why only some rights and not others.
You don't know. But that doesn't stop you!
It's only the last 70 they've gone after individual firearms. It's only the last 30 on abortion. It's only the last few years they've gone after property and religion.
See a trend here?
And the funny thing is, you cannot explain why the courts started applying the BOR to the states.
I have. Time and again. It started Pre-Civil War. The roots of it at least. It's only recently that activist judges have had the Government on their side sufficiently to get away with their activism.
Past due time to correct that imbalance don't you think? Or do you think more of the same will yield a better result?
Silent, because some things are absolutely clear. Sometimes the obvious need not be explained as such.
If anyone involved had any inkling that the 2nd Amendment was a "collective right", then there would be no question that Mr. Miller was NOT acting as a part of that collective. Mr. Miller was well-known to the prosecution and the courts as a habitual criminal offender, variously convicted of or suspected a party to bank robbery, murder, moonshine making, booze running, etc. - caught with the unregistered NFA item during alleged criminal activity, NOT anything anywhere remotely related to organized militia activity. Mr. Miller was plainly a thug with a gun, the furthest one could conceivably get from any arguably legitimate connection to a lawful collective to which a RKBA could conceivably be attributed. If any argument can be made for the "collective right" theory, it most assuredly and obviously did NOT apply to Mr. Miller.
Despite every level of government involved being keenly aware that Mr. Miller was utterly criminal in his occupation, and absolutely & plainly not a part of any legitimate "collective", how much time was spent discussing whether, gun aside, the 2nd Amendment applied to him personally? none. zero. zippo. nada. nyet.
Despite the court, being faced with a known violent habitual criminal offender, having plenty of reason to find any and all ways legally conceivable to deny this man any right to weapons of any kind, and the weapon in question being federally deemed dangerous enough to warrant (inflation adjusted) a $3000 tax on a $10 gun, did they in any way address the notion that somehow, in any way possible, the 2nd Amendment might not apply to this individual? cue the crickets - nobody questioned that Mr. Miller, legally vile to the extreme, had some sort of right to keep and bear arms.
The Miller Court never did say whether it was a collective right or an individual right - because it was inconceivable that the right could be "collective". Of course it was individual! Should the notion have had crossed the court's mind, or the prosecution's mind, it would not only have been addressed, it would have been the first thing used to deny Mr. Miller standing (contrast Parker, where the "standing" issue arose only as a vague side query by a judge, and in mere minutes grew such as to eject 5/6ths of the plaintiffs).
You're right: the Miller Court never did say whether it was a collective right or an individual right - any more than a modern discussion of geography debates whether the Earth is flat or round.
Got a link? That's amazing!
(BTW: thanks for bringing the thread back on track - if briefly!)
Unless, of course, once of the lawyers involved blabs early.
The case before the U.S. Supreme Court was whether or not the NFA was constitutional. Specifically, whether or not the tax stamp was an infringement under the second amendment.
The case had nothing to do with either a collective or individual right. Are you sure you even read it?
Insofar as you could still pay the tax on new product, you would be correct. But since they closed the NFA registry, it now violates BAILEY v. DREXEL FURNITURE CO., 259 U.S. 20 (1922).
SCOTUS will hear the case in March of '08...
>>The Bill of Rights was never meant to apply to the states. I’ve said it many times, incorporation has done more to destroy federalism that the Commerce Clause can ever hope to. I don’t want any of the Bill of Rights incorporated.<<
If these are fundamental rights, endowed to man by our creator why would the states be allowed to violate them?
The last thing the gov't wants when shielding laws on the books is for anyone to actually address the law directly. Far easier to disqualify the challenger than to defend bad law.
And yes, the case was about whether or not Mr. Miller was allowed to keep and bear a sawed-off shotgun - at least without taxation. Every indication in the Miller ruling is that if the weapon in question had been shown to have some connection to common militia use (say, it had been a machinegun instead - easy enough to show), then the NFA law would have been deemed infringement under the second amendment and, as a result, Mr. Miller [would be] allowed to keep and bear a sawed-off shotgun.
“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”
Yep. The mayor’s bid to get the to narrow the ruling failed. It will be decided against an “individual Rights” interpretation. Veddy good... ;-)
An inalienable right is endowed to man by our creator and those rights may not be violated without individual due process.
Fundamental rights, on the other hand, may or may not be protected in a constitution by government (society), depending on the will of the majority of the people. The Founders were creating a federated republic -- they wanted each state to be free to set up their own constitution and their own Bills of Rights.
For those things not delegated to the FedGov. Things like the BoR that put them off limits from both. Consider the BoR in the FedCon as a "starter" set of Rights. The States are free to add things to it their own Constitutions, but they cannot "over-ride" this minimal set of protections.
Gosh. I'm trying to think. Was his name even mentioned by the U.S. Supreme Court in the case? I seem to recall that 99% of it dealt with the weapon itself.
Yet you insist the case was about Mr. Miller and whether or not he was a member of a militia?
"Every indication in the Miller ruling is that if the weapon in question had been shown ..."
Exactly what I've been saying all along. The case was about the weapon, the tax stamp, and the NFA -- NOT Mr. Miller. And if it wasn't about Mr. Miller, then how could it possibly be about an individual vs a collective right?
They did just that for 150 years. Some amendments still don't apply to the states.
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