Court agrees to rule on gun case

SCOTUSBLOG.com ^ | 11-20-07 | SCOTUSblog

[robertpaulsen]

"So you don't believe that today's prohibition on the manufacture of machineguns for civilian use, an extension of the NFA 34, violates the individual right to own such machineguns?"

The second amendment never protected that right. You say it does and is being violated. You have yet to support that.

"Sometimes you claim there is no right."

Nope. Never did. It's a natural right. I've said that time and again.

"Sometimes you claim the right is only for militias or states."

No, sometimes I claim the right is protected for members of a Militia.

You have this bad habit of claiming a right then acting as though it should be allowed because it's a right. "We have a right to keep and bear arms and you can't take that away" "We have a right to self defense whch means you can't stop me from using a gun".

Blah, blah, blah. You have a right. Yeah, so? We all have rights. My question to you is, is it protected and who protects it? That's all that matters.

So cool it with your pre-existing rights. List 50 of them and I'll agree with every one. List 1000.

All that matters is, is it protected and who protects it?

[William Tell]

robertpaulsen said: "The militia clause doesn't limit any right. It limits the protection of the right. "

You agree that the right is pre-existing. That it includes self-defense.

So now you claim that the Second Amendment means that the federal government cannot infringe that pre-existing right to keep and bear arms unless the keeping and bearing is not related to a militia. "Shall not be infringed" means "shall not be infringed sometimes".

[Reaganwuzthebest]

You never did answer this prior question in regards to women and the BoR. Although few of them owned property in the late 18th or early 19th century for those that did and lived alone wouldn't they have been protected from unwarranted searches and seizures as guaranteed in the Fourth Amendment?

Or because they weren't males and therefore unable to vote could the government have barged in without a warrant and for no reason if they felt like it?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[William Tell]

robertpaulsen said: "You have this bad habit of claiming a right then acting as though it should be allowed because it's a right."

If a right is "disallowed" is that not tyranny?

Maybe that explains why your postings seems so strange. You really don't have a philosophy of government that matches what our Founders had nor what I have.

Do you care what the Heller decision is by the Supreme Court? Why would you?

[Reaganwuzthebest]

Instead they said "the people". They didn't say "the States" or "Free white landowning males" they said "the people".

Exactly, that meant everyone who was a citizen, including women although granted they were often treated as second class citizens or even arrested at times for attempting to exercise their rights. Still if "the people" only applied to free white landowning males you think they would have said so directly. At the very least you know they intended the 2nd Amendment to include all males, whether property owners or not simply by the passage of the Militia Act.

[publiusF27]

I think you misunderestimate the political power of the gun lobby in America, and the anger the Court could spark with a bad ruling on this case.

The Kelo decision merely reaffirmed something that was first decided back in the 50's: that "public use" could mean a transfer to a politically preferable private owner. We've been living under that rule for decades, but BOY, were the people PISSED when the Supreme Court ratified the existing state of the law. Soon we had new laws redefining public use in a way more favorable to property owners and less favorable to bureaucrats, and a new federal law denying tax money to "public use" projects like the one at issue in Kelo.

Now, quickly and without using Google, name a property rights lobbying group. Most of you failed.

Name a gun rights lobbying group. Most Americans say "the NRA" though a more correct answer would be the NRA ILA.

Property owners have nowhere near the lobbying power of gun owners, but both share the affection of the American people. Yes, plenty of Democrats love their guns, and believe gun bans are wrong.

The antis couldn't even get the AWB renewed. That should tell you that gun control is just not popular in America. When is a federal law or program just allowed to expire? Far from being a signal for antis to proceed with their stalled agenda, I think a loss in the Supreme Court would be the best thing (financially) that ever happened to the NRA, and would result in lots of pro-gun legislation as a backlash, just like in Kelo.

But you don't have to believe me about the benefits of backlash. Dave Kopel is quite knowledgeable about guns, and he recently wrote this:

The gun prohibition movement successfully lobbied the Chicago suburb of Morton Grove to ban handguns in 1981. Chicago itself followed suit in 1983, and the suburbs of Evanston, Oak Park and Wilmette also enacted handgun bans.

The Chicagoland bans got a lot of press, and the national backlash against them was powerful. State after state passed preemption laws, forbidding localities from banning handguns. Today, an astonishing 45 states have preemption laws, including Texas and California, whose law has stopped two efforts to impose handgun prohibition in San Francisco.

Why are we even talking about losing and backlash? The lawyers for the pro-gun case are very good, and are going to win. :D

[publiusF27]

What such a ruling will actually signify is a fatal defeat in the battle of ideas and principles, in which the concepts of individual rights and freedom upon which this nation was established will have finally been overpowered by those of collectivist statism.

You're right, except that it would be neither fatal nor final. A bad ruling wouldn't be the end of it for me, but would inspire me to give more money to gun rights groups.

A negative ruling will destroy the fragile ambiguity which has so far sustained our Second Amendment rights and will send a clear signal to the anti-gun enemies of freedom that they have won the war of ideas and now have a free-hand to ramp up their efforts to disarm the American people. It will open the floodgates to new oppressive legislation, and not only will 2A challenges be moot, but pretty much any challenges to gun control efforts will eventually be as well.

What fragile ambiguity? Most Americans think we have a right to own guns, and the last decade has seen quite a bit of pro-gun legislation in lots of states along with the expiration of the AWB. They've lost the war of ideas. And didn't you just agree with me that 2A challenges are already moot today?

I'm glad that the Court did not accept the question before them as presented by the DC side, and while I wish they had just accepted the cross petition for cert from our side, I think we can win on the question they have presented to themselves. In plain English, outright bans on any functional gun in your home will not stand, and it will be because we have an individual right to own guns, even if there is no direct militia connection.

Later cases will be the ones which can pose a danger to gun owners. Just because the right exists does not mean it will be applied to the states and cities, though some of the gun grabbing ones seem worried about that possibility. 2A protection of the right may only apply to the federal government. Just because a complete ban on any gun in your own home is out of bounds does not mean the right would be subject to no "reasonable regulations." We could conceivably wind up with an individual right which is regulated almost, but not quite, out of existence.

Or, we could keep on winning in the legislatures after we win this one at the Supreme Court. :D

[tarheelswamprat]

Thanks for the thoughtful response. We see the issue differently, but I sincerely hope it turns out that you are right and I am wrong.

Best regards for a safe and enjoyable Thanksgiving1

[Reaganwuzthebest]

Just because the right exists does not mean it will be applied to the states and cities, though some of the gun grabbing ones seem worried about that possibility. 2A protection of the right may only apply to the federal government.

Doesn't this case in your opinion provide the Court with an opportunity to invoke incorporation finally since DC is arguing that the 2nd Amendment, if it is in fact an individual right only applies to preventing federal government intrusion? This apparently is one of D.C.’s assertions according to Bob Levy:

2) the Second Amendment only restrains the federal government, not states or local government entities like D.C.

[Colonel_Flagg]

It takes quite a bit of self deception and outright stupidity to interpret the amendment in any other way.

So I think that's why the original question was asked. :)

5-4 sounds about right.

[publiusF27]

Doesn't this case in your opinion provide the Court with an opportunity to invoke incorporation finally since DC is arguing that the 2nd Amendment, if it is in fact an individual right only applies to preventing federal government intrusion?

I think they could, but do not have to. DC isn't just another city. The federal government already has plenary power in DC.

Incorporation, if it happens at all, will come later, in some case against a city or state gun law. After that will come the reasonable restrictions which pass the test that a complete ban in the home could not.

[publiusF27]

Happy Thanksgiving 2U2!

[epow]

Doesn't this case in your opinion provide the Court with an opportunity to invoke incorporation finally since DC is arguing that the 2nd Amendment, if it is in fact an individual right only applies to preventing federal government intrusion?

Incorporation is another problem that must be addressed by the court if the 2nd Amendment is to truly protect the RKBA. If I understand the incorporation doctrine correctly, unless and until the 2nd Amendment is incorporated into the 14th it only protects the RKBA from federal infringement even if the 2nd is ruled to protect an individual right. The problem there is that the most egregious infringements on the RKBA are usually the work of local and state governments, and unless the 2nd is incorporated it will not affect that situation.

[robertpaulsen]

"You agree that the right is pre-existing. That it includes self-defense."

FOR THE FOURTH TIME ---- YES!!!

"So now you claim that the Second Amendment means that the federal government cannot infringe that pre-existing right to keep and bear arms unless the keeping and bearing is not related to a militia."

NOW I claim? Like it just happened? I've BEEN claiming that. Where have you been?

[robertpaulsen]

When the second amendment was written, "the people" were a select group of individuals -- they were sometimes referred to as "the whole people", "the people at large", "Freemen", or "Freeholders".

These were the individuals connected to the country, those who voted, those who participated, those with the most to lose. They had full rights, unlike the slaves, women, children, the propertyless, or non-citizens.

They had their right to keep and bear arms protected because they were the Militia. The U.S. Supreme Court in Parker confirms this definition:

"In sum, the phrase “the right of the people,” when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual. This proposition is true even though “the people” at the time of the founding was not as inclusive a concept as “the people” today .... To the extent that non-whites, women, and the propertyless were excluded from the protections afforded to “the people,” the Equal Protection Clause of the Fourteenth Amendment is understood to have corrected that initial constitutional shortcoming."

[robertpaulsen]

"You're in the minority here in believing that the Militia clause limited the scope of the pre-existing right to keep and bear arms."

Limited the scope of the right? No, I don't believe that and I told you so.

[robertpaulsen]

"Or because they weren't males and therefore unable to vote could the government have barged in without a warrant and for no reason if they felt like it?"

The federal government, yes. And I doubt that those federal agents who barged in to a woman's home with no reason (other than "they felt like it") would have a job the next day.

Your hypotheticals are fantasy and inflammatory. Get real. Next time I won't answer.

"While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."
-- United States v. Verdugo- Urquidez, 494 U.S. 259 (1990)

[Reaganwuzthebest]

Incorporation is another problem that must be addressed by the court if the 2nd Amendment is to truly protect the RKBA.

Yup I agree and this is an excellent opportunity for the USSC to invoke incorporation as DC has provided them with an opening to do so. Unless and until there is incorporation it'll leave the states with an excuse to pass laws that border on the unconstitutional if they choose to. Even if it is not invoked though the precedent of affirming the RKBA by the USSC will still have a tremendous ripple effect in that states will most likely think twice about making attempts at passing the type of sweeping laws that DC now has.

[robertpaulsen]

"If a right is "disallowed" is that not tyranny?"

It would be. Please point out where this has happened. If you can't, then perhaps you can explain why you brought it up?

"Do you care what the Heller decision is by the Supreme Court? Why would you?"

I only care if they incorporate.

If they don't incorporate the best that can happen is the DC Circuit decision stands -- and that could have been accomplished by the U.S. Supreme Court simply refusing to hear the case. The worst is that the DC residents go back to where they were, and it gives Sarah Brady a talking point.

[robertpaulsen]

"You don't think the DC handgun ban and the prohibition against working firearms is an infringement of the rights of the citizens of DC? That's truly amazing."

I should know better with you. With you, I should have said, "I don't think a protected right IS being infringed.