Posted on 12/05/2002 2:34:24 PM PST by Sender
Reinhardt dismissed the plaintiffs' claims "Because the Second Amendment does not confer an individual right to own or possess arms...". The challenge could have involved muskets and the ruling would have been the same -- you don't have the right to "own or possess" any weapon.
Here's the problem. If this goes to SCOTUS, the gun control freaks are going to make this case about the right to own "assault weapons" (the original case) rather than an individual's RKBA.
Which do you prefer, Emerson or a test of a right to own assault weapons? Had the Bush administration chosen to pursue Emerson, this ruling would never have happened. Considering that, how satisfied are you that the Solicitor General is going to give this case its due?
I prefer to have the most liberal (and overturned) circuit court in the nation parrot the claims of gun-control groups, and in a one-sided flawed decision proclaim that the 2nd Amendment does NOT confer individual rights. I would also like it if all the gun-control groups hitch their wagons to this ruling - so it can pull the collective lot over a cliff when SCOTUS overturns it. The 9th Circuit basically left SCOTUS no choice with the blunt language in this ruling.
Had the Bush administration chosen to pursue Emerson, this ruling would never have happened. Considering that, how satisfied are you that the Solicitor General is going to give this case its due?
It may not even now require the Solicitor General. Both sides are going to want both this case and Emerson appealed to SCOTUS. The long-awaited SCOTUS showdown is, IMO, finally taking shape, and will probably be heard in the 2003-04 SCOTUS session.
Sorry for the cofusion on my part.
That's just the response I was waiting for. Come to think of it, I believe that you were also the one of the people whose position on the Emerson threads was that it wasn't 'the ideal case we wanted in front of SCOTUS' either.
The difference is clear: The 5th Circuit Court says that there IS, and the 9th says there ISN'T.
It's not about 'assault weapons' in California.
If not this case, then what case did you have in mind? Are you waiting for Ben and Jerry's Ice Cream to overturn the language in Vermont's state constitution that states that the 2nd Amendment is an individual right before you'd be comfortable with SCOTUS hearing it?
No, really: What did you have in mind?
Absolute and complete cow patties.
Not only does _Miller_ say no such thing (nor "imply" it), it actually "strongly implies" the EXACT OPPOSITE.
While _Miller_ is unfortunately ambiguous in some ways (even a lot of pro-gun people misunderstand its implications), what it says is less noteworthy than what it *doesn't* say. When you look at what the Supreme Court chose to *ignore* in _Miller_, one fact is glaringly obvious: The feds in their brief tried to get the Supreme Court to throw out the whole issue on the grounds that Mr. Miller, being a private citizen, didn't even have Second Amendment standing at all, since (they argued) the Second Amendment only applies to formal militias, not individuals.
And the Supreme Court POINTEDLY IGNORED this recommendation. If it had any validity, the Supreme Court would have simply noted that Miller was a private citizen and no part of any organized militia, made a one-paragraph ruling, and knocked off early for lunch.
THEY DID NOT DO THIS.
Instead, they spent a great deal of time (and verbiage) discussing historical contexts wherein members of the *general population* were considered reserve militia members and were expected to be armed and ready for duty.
NOWHERE in _Miller_ did they *ever* discuss, much less even bother to raise, the fact that Mr. Miller wasn't in the National Guard or whatever. THE JUSTICES CLEARLY CONSIDERED THIS NO IMPEDIMENT TO THE SECOND AMENDMENT'S RELEVANCE TO MILLER.
Instead, what they finally hung their decision on was whether or not Miller's firearm was merely *suitable* for militia use. (And again, they pointedly did *not* care whether it was being used *in* a militia, nor whether it was owned/used *by* a militia member.)
The whole "only in a militia" issue the anti-gun people like to claim was NEVER CONSIDERED AN ISSUE WORTH RAISING in the _Miller_ decision. The "strong implication" is that the justices thought it an invalid argument, because had it been an actual legal issue, it would have been *key* in Miller's case and certainly examined in the ruling.
Clearly, in the context of the history lesson in the earlier part of the ruling, the reason the "suitable for use in a militia" criteria was the centerpiece of the ruling was because the justices felt that any private citizen was a reserve militia member, and thus had a right to keep and bear the kinds of arms that would help them be effective if called up for such duty -- just as the founders intended, and just as we've been saying the Second Amendment was written to protect.
Incidentally, here's the part a lot of pro-gun people often get wrong: They often claim that the _Miller_ decision erroneously declared that a sawed-off shotgun was unsuitable for militia use (when it obviously is). But in fact, the Supreme Court *made no such determination*. It merely pointed out that that *was* the issue, declared that it had been given no evidence on that issue (either way), and then kicked the case back to the lower court to make a finding on that issue at a later date. The key phrase in the ruling is:
The Court can not take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia; and therefore can not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.The key phrase here is "can not say". That's *not* legalese for "we have determined it's not", that's legalese for, quite literally, "we can't say because we don't know". The "can not take judicial notice" phrase is legalese for "we can't decide on the evidence, because none was given, and the issue is not clear enough that we can decide without evidence". ("Judicial notice" is a legal term for something so indisputably true that no evidence needs to be presented for a judge to acknowledge it -- a "the sky is blue" type thing.)
You want Silveira v. Lockyer in front of the USSC, fine.
You know it's not about "assault weapons". I know it's not about "assault weapons". But that's exactly how Sarah Brady and the anti-gun nazis are going to frame it: "The NRA AND THE BUSH ADMINISTRATION WANT TO LEGALIZE MACHINE GUNS!!". And the press will eat it up because this is for all the marbles, isn't it?
If we lose this one, you can cry about how this wasn't about machine guns, or "assault weapons", or even semi-automatic rifles. By then it's too late.
In the future, if you really want to know what type of case I have in mind, don't patronize me with a Ben and Jerry's example.
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