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bg
03-21-2007, 10:16 AM
From Gun News Daily..
http://www.californiaprogressreport.com/2007/03/dc_gun_case_lik.html


D.C. GUN CASE LIKELY TO VALIDATE CALIFORNIA’S FIREARM
REGULATORY SCHEME – ENACTED BY DEMOCRATS OVER N.R.A. OBJECTIONS


A Federal Appeals Court recently struck down as unconstitutional a Washington City ordinance banning private possession of handguns, saying the law violated the Second Amendment which protects the “right of the people to bear arms”. What the DC Circuit Court granted in terms of the relief requested and granted the in opinion by Judge Larry Silberman was to create a regulated system of acquisition and possession (including carrying) of registered handguns that people could have on their private property and in the case of conventional firearms (including handguns) that were capable of us

What the Cato plaintiffs asked for was a system somewhat comparable to California law. The relief sought was narrow because – as pointed out in a Washington Post story – CATO did not want to get into bed with the National Rifle Association. Also, an unrestricted individual right would raise any number of concerns.


This decision – if reviewed and upheld on the same grounds by the US Supreme Court – would reverse decades-old precedent that held that while the Second Amendment prohibited the Federal Government from outlawing state “militias” and their arms, it provided no Constitutional authority for individuals to “bear arms”.
I don't know where this is going, but it doesn't sound good..

anotherone
03-21-2007, 10:22 AM
From Gun News Daily..
http://www.californiaprogressreport.com/2007/03/dc_gun_case_lik.html

I don't know where this is going, but it doesn't sound good..

Sounds like liberal spin from the California Progress Report. If the SCOTUS upholds the case anyone with half a brain knows every gun control law in the whole country will be extremely easy to challange. If this wasn't the case, the gun grabbers wouldn't be spending millions of dollars in legal fees to appeal the Parker Vs. DC decision.

bwiese
03-21-2007, 10:45 AM
Ignore Cavala. He's wrong.

Please don't reply on his blog, let this issue die.

He's trolling for some issues to be raised to bait candidates into hiring him as a consultant. We don't need to fan the flames.

Furthermore, if Parker holds anything, it may well hold that military weapons are allowable in hands of citizens.

I can think of no more appropriate arm, using this train of thought, than an AR15 ;) It may have a chance of becoming the most protected firearm of all :)

Also, we have a spinoff from the misquoted/misapplied Miller case - one that's called Cases v US, IIRC, in later 1940s, that broadly said (in essence) that - if the military suitability criterion were to hold - it likely would not be that restrictive since the variety of 'special operations' forces in WWII used a wide range of firearms types, and thus just about anything could be encompassed.

CalNRA
03-21-2007, 10:48 AM
I

Furthermore, if Parker holds anything, it may well hold that military weapons are allowable in hands of citizens.

I can think of no more appropriate arm, using this train of thought, than an AR15 ;) It may have a chance of becoming the most protected firearm of all :)

Bill, you know inciting seizure due to overload of the neural senses is strictly uncivil on a gun forum.

bg
03-21-2007, 11:08 AM
Sorry I didn't realize there was another thread going on this..Please delete.

Rumpled
03-21-2007, 11:13 AM
My guess is that the Full Circuit Court will review this and allow private ownership with regulations. Then DC will make these restrictions super strict, effectivley creating a ban. Then, the Supremes won't look at it.
Just my guess of the political winds on this.

6172crew
03-21-2007, 11:46 AM
Cavala is getting his *** handed to him on his own thread,
Its looking pretty bad for the guy with a 2$ haircut.:D

hoffmang
03-21-2007, 11:52 AM
Rumpled,

That's not how the Federal courts work exactly so that's not how it will play out.

All,

Cavala may be marginally right, but in a rather disingenuous way. Shall issue handgun registration may actually be allowed under the 2A, but the AW ban in California is certainly not going to stand much scrutiny at all.

California's firearms laws are in for a bruising assuming Parker is upheld at SCOTUS and there comes a 14th amendment incorporation case somewhere in the US.

-Gene

Draven
03-21-2007, 12:36 PM
hoffmang,

NRA vs. City of New Orleans becomes a 14th amendment incorporation case if Parker goes through.

383green
03-21-2007, 12:59 PM
I can think of no more appropriate arm, using this train of thought, than an AR15 ;) It may have a chance of becoming the most protected firearm of all :)


I can think of one: an M16A2.

xenophobe
03-21-2007, 1:07 PM
If the SCOTUS upholds the case anyone with half a brain knows every gun control law in the whole country will be extremely easy to challange.

That's not true. The decision even noted that restrictions, registration and even required training may be legal and left that for other courts to decide.

Most gun laws wouldn't be affected. Surely in California the only thing that Parker could really affect are the outright bans. AWs, .50BMGs and NFA items may become legal in California once again, [b] as long as cases are filed against the State and are won, either initially or through appeals.

Parts of the Firearms Owner Protection Act of 1986 could end up being nullified, meaning no more machine gun ban.

All the other laws, SB-15, mandatory registration, waiting periods, HSC, proof of residency, and all that would probably be found to be legal.

hoffmang
03-21-2007, 1:18 PM
Draven,

Thats an interesting thought, but the problems there are two fold.

1. That case is about issuing an executive order, not about a standing law. As such, it doesn't have the 14th teeth.

2. That case isn't likely to be appealed. I expect folks will get their guns back and be done with it.

I will however take a read over it to see if it will be "sister circuit" quotable when we all start thinking about son of Kasler.

-Gene

Draven
03-21-2007, 1:35 PM
Or an M4 Carbine- SBR and class 3, but it is the front-line rifle for our troops.

383green
03-21-2007, 1:42 PM
Or an M4 Carbine- SBR and class 3, but it is the front-line rifle for our troops.

I think that we should be able to have the shorter barrel, but personally I'd rather have a 16" barrel to keep the velocity high enough to ensure proper fragmentation of the M193 round at reasonable ranges. My own choice would be a rifle based on the M4 carbine but with a 16" barrel, with a nice CompM3 on a LaRue mount sitting up on top. In other words, just like my favorite OLL, except with a detachable magazine and one more "click" on the selector. :D

Stanze
03-21-2007, 1:59 PM
With that logic, it's ok for states to ban free speech and allow search without a warrant, but of course it isn't because it would be ruled unconstitutional by SCOTUS.

What a 'tard!:rolleyes:

hoffmang
03-21-2007, 2:51 PM
Careful with that logic. You have the right to vote, but the government has the power to require you to register to vote.

-Gene

aileron
03-21-2007, 3:58 PM
Registration? Isnt that a violation of both the 4th and the 5th????

SunshineGlocker
03-21-2007, 4:01 PM
I can think of no more appropriate arm, using this train of thought, than an AR15 ;) It may have a chance of becoming the most protected firearm of all :)

I can think of something more appropriate and more protected: an M4!

hoffmang
03-21-2007, 4:03 PM
aileron,

You are registered to vote, right?

http://www.ss.ca.gov/elections/elections_vr.htm

-Gene

383green
03-21-2007, 4:04 PM
I think it's only a violation of the 5th if your possession of the weapon(s) in question would be a crime (i.e., you're a felon who cannot possess weapons, so registering them would be self-incrimination).

Personally, I think that registration is wrong. Considering that we're already being forced to register handguns anyway, I might accept open shall-issue registration of AW's and NFA guns as an incremental improvement over the effective outright ban, and then move forward from there to attack the registration itself.

While registration is bad because it's a gateway to confiscation, I tend to think that it becomes a moot point for the government to know who has which guns if enough people are armed that there would be no effective way to use that information to begin confiscation.

hoffmang
03-21-2007, 4:26 PM
383,

I think firearms registration will be an interesting open question after Parker and son or two of Parker. However, registration may very well be a "positive" regulation that is allowable to keep the militia "well regulated" like a clock. It can be argued that having the government know what you own helps it protect and maintain an effective militia.

However, it hinges on how seriously future courts take this statement in Parker:

That right
existed prior to the formation of the new government under the
Constitution and was premised on the private use of arms for
activities such as hunting and self-defense, the latter being
understood as resistance to either private lawlessness or the
depredations of a tyrannical government (or a threat from
abroad).

-Gene

xenophobe
03-21-2007, 4:33 PM
Actually, if you want to get technical, the Parker decision stated that registration may even be a requirement of the 2nd Amendment in conjunction with the Militia Acts.

383green
03-21-2007, 4:34 PM
However, registration may very well be a "positive" regulation that is allowable to keep the militia "well regulated" like a clock.


As I understand it, "well regulated" had a meaning comparable to "well-trained", and did not imply governmental control as it does in current use of the word "regulated". I don't think that governmental registration of weapons would have sat at all well with the founding fathers. Registration enables confiscation, and the resulting disarmament is a necessary prerequisite to tyranny and/or genocide.

Thus, I'm am fundamentally and strongly opposed to firearms registration, and I would only willingly accept it in an area where allowing it would serve as a compromise to relax previous restrictions (such as going from a ban on AW and NFA weapons to shall-issue registration). Even in that case, I would only accept it knowing that my next step would be to attack the registration itself to approach the proper goal, as envisioned by the founding fathers, where all able-bodied and law-abiding people in the country can keep and bear arms without infringement.

383green
03-21-2007, 4:42 PM
My own comment just made me think of something:

1) Get the AW and NFA bans replaced with shall-issue registration.

2) Get the various handgun, AW and NFA registrations relaxed from per-weapon registration to simple registration as a firearms owner ("arms-bearer?") without enumeration of specific weapons.

3) Finally, just as voter registration and automobile licensing have been lumped together ("motor-voter"), replace the arms-bearer registration with a combined "Registration to Keep and Bear Arms and Vote", without enumeration of specific weapons.

There. The government gets their beloved registration, and it's not worth a flying poop for confiscation purposes because everybody is on the list.

Somebody wake me up, because I'm clearly dreaming. :o

edwardm
03-21-2007, 4:46 PM
The less the government knows about my possessions, the better. Ergo, I do not necessarily favor any form of registration, de facto or de jure.

That said, I could see something similar to the Swiss setup, wherein you are issued a weapon and a sealed batch of ammunition, that weapon is registered to you, and is only used if/when you are called up.

If the registration was somewhat more passive, i.e. "I affirm under penalty of perjury that I have the requisite weapons..." type of thing, then I would be less concerned with that. It effectuates "regulation" without letting anyone but my wife know what's in the safe/under the bed/in the drawer/etc.

383,

I think firearms registration will be an interesting open question after Parker and son or two of Parker. However, registration may very well be a "positive" regulation that is allowable to keep the militia "well regulated" like a clock. It can be argued that having the government know what you own helps it protect and maintain an effective militia.

However, it hinges on how seriously future courts take this statement in Parker:


-Gene

M. Sage
03-21-2007, 5:04 PM
That said, I could see something similar to the Swiss setup, wherein you are issued a weapon and a sealed batch of ammunition, that weapon is registered to you, and is only used if/when you are called up.

They can (and do) take that weapon to the range. And they can buy their own ammo for range days.

FreedomIsNotFree
03-21-2007, 5:08 PM
That regulation would only apply to portions of the militia tha were ORGANIZED.

Remember that US Code makes the distinction between "organized" and "unorganized" militia.

Section 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in section
313 of title 32, under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States
and of female citizens of the United States who are members of the
National Guard.
(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard
and the Naval Militia; and
(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the
Naval Militia.

http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=10&sec=311

383green
03-21-2007, 5:08 PM
I'm not in favor of compulsory military service, but I wouldn't have any problem with soldiers getting to keep their issued small arms and personal equipment upon honorable discharge. Those who choose not to serve should be able to purchase, keep and bear the same kinds of arms, but they could buy them with their own dollars... no handouts.

anonymous
03-21-2007, 5:11 PM
Except that the DC Court of Appeals doesn't have jurisdiction over California....

hoffmang
03-21-2007, 5:25 PM
The DC Court's ruling will likely start to have implication once upheld by SCOTUS.

People here should really read the Parker (http://www.gurapossessky.com/documents/parkerdc030907.pdf) decision. Start at page 12 cause the standing stuff works better than most sleep aids. The meat starts on the bottom of 12.

The sections that Xeno and I are pointing out that may allow registration are:

Be it enacted . . . [t]hat each and every free able-bodied
white male citizen of the respective states, resident
therein, who is or shall be of the age of eighteen years,
and under the age of forty-five years (except as is
herein after excepted) shall severally and respectively
be enrolled in the militia, by the captain or
commanding officer of the company, within whose
bounds such citizen shall reside, and that within twelve
months after the passing of this Act. And . . . every
such captain or commanding officer of a company . . .
shall without delay notify such citizen of the said
enrollment . . . . That every citizen, so enrolled and
notified, shall, within six months thereafter, provide
himself with a good musket or firelock, a sufficient
bayonet and belt, two spare flints, and a knapsack, a
pouch, with a box therein, to contain not less than
twenty four cartridges, suited to the bore of his musket
or firelock, each cartridge to contain a proper quantity
of powder and ball: or with a good rifle, knapsack,
shot-pouch, and powder-horn, twenty balls suited to
the bore of his rifle, and a quarter of a pound of
powder; and shall appear so armed, accoutred and
provided, when called out to exercise, or into service.


That's the Second Militia Act of 1792 in Congress so that sort of "positive" requirement set was and is certainly constitutional. Note two things. I'm well aware that "regulated" has the same concept as in the clock face version. That may support training regulations like HSC. Also, even though I may not personally support registration of firearms, I am saying that it may well be within the Second Amendment and where the Second Amendment is strong, registration may be a far less risky item. Also, that was the regulation of the unorganized militia.

-Gene

bwiese
03-21-2007, 8:21 PM
There. The government gets their beloved registration, and it's not worth a flying poop for confiscation purposes because everybody is on the list.

I was just thinking of that this morning.

The data point that "Mr X owns firearms" becomes noise when everyone and his dog - or, say, 1/2 the population - owns firearms.

Registration is useless then, because the gov't can't take your guns away (except for felon, etc.)

FreedomIsNotFree
03-21-2007, 8:58 PM
The DC Court's ruling will likely start to have implication once upheld by SCOTUS.

People here should really read the Parker (http://www.gurapossessky.com/documents/parkerdc030907.pdf) decision. Start at page 12 cause the standing stuff works better than most sleep aids. The meat starts on the bottom of 12.

The sections that Xeno and I are pointing out that may allow registration are:


That's the Second Militia Act of 1792 in Congress so that sort of "positive" requirement set was and is certainly constitutional. Note two things. I'm well aware that "regulated" has the same concept as in the clock face version. That may support training regulations like HSC. Also, even though I may not personally support registration of firearms, I am saying that it may well be within the Second Amendment and where the Second Amendment is strong, registration may be a far less risky item. Also, that was the regulation of the unorganized militia.

-Gene

Gene,

I believe you are mistaken in terms of the Second Militia act of 1792, in regards to it applying to the unorganized militia.

In 1792 there was no distinction between the organized and unorganized militia. There was only one militia and ALL abled bodied white males were considered to belong. I believe your quote illustrated the extent that each citizen was expected to conform to meet this obligation.

It wasn't until the Militia Act of 1903 that the Militias gained Federal Status. With the "National Guard" now under Federal control, Congress needed to make clear that the National Guard, in its historical sense, had changed. Eventuall they passed section 311 which made the distinction between the organized and UNorganized militia.

So, would it not follow that the "regulation" you and xeno are speaking of applies to the organized militia that was eventually brought under Federal control...what we call the National Guard today?

Just food for thought.

xenophobe
03-21-2007, 9:07 PM
That's the Second Militia Act of 1792 in Congress so that sort of "positive" requirement set was and is certainly constitutional. Note two things. I'm well aware that "regulated" has the same concept as in the clock face version. That may support training regulations like HSC.

I'm in the same boat as you. While I don't think there should be any requirements of registration or training, it appears that the unregulated militia (which means any one of us who owns guns) may indeed be subject to the conditions set forth in the Militia Acts which seem to directly interact with the 2nd Amendment in stating that registration and training (even if unorganized) are required to own military firearms.

In that case, I'm ready to take a few SMG classes by a NRA sanctioned instructor and submit my NFA paperwork. ;)


For what it's worth, I've read the complete Parker v DC ruling and dissent twice, as well as skimmed a few cases that both sides cite. Also, I agree that Henderson's dissent was weak, but I found some merit in it because in reviewing it I found a number of other uncited cases where DC was pretty consistently ruled to not have the same protections as the states, and until Parker, it seems it was pretty much the trend for the DC Circuit to deny DC appellants these protections.

EDIT: And I'd like to say while I don't necessarily agree with it, it's just what I've found when I was looking into it.

hoffmang
03-21-2007, 9:09 PM
Free,

I think you'd have a hard case to press that the Federal Government couldn't have similar requirements on the unorganized militia. What they can't do is not allow the people to have arms. They may be able to say that certain arms are not good enough for a well regulated militia but that certainly couldn't restrict people from having M9s, M4s, M16s, etc. Just because they chose to split the militia into militia and select militia doesn't mean that they can't have certain requirements on the unorganzed militia.

Let me be clear here though. What we're really looking at is a core right to own the equivalent small arms to the US Military and arguably the militarizes of countries around the world. In fact, the weapons that may be banable are the ones that aren't military weapons.

Either way, the core of our right is likely to become very strong.

-Gene

hoffmang
03-21-2007, 9:13 PM
Xeno,

The one thing that cuts strongly against the dissent argument that the Second doesn't apply in DC is that DC has its own Militia Act. Kind of seems moot if there is no reason for DC to have to raise a militia.

Also, if the Dissent is right, then the 14th wasn't necessary to incorporate the 2nd Amendment against the States. Otherwise the 2nd Amendment is a nullity before the passage of the 14th.

-Gene

383green
03-21-2007, 9:25 PM
Let me be clear here though. What we're really looking at is a core right to own the equivalent small arms to the US Military and arguably the militarizes of countries around the world. In fact, the weapons that may be banable are the ones that aren't military weapons.


I don't want to ban anybody's guns, but if the court decides that the Second protects only the military weapons, then the ones most at risk would be things like olympic-style competition rifles, fancy high-end double-barreled shotguns, and so forth. The "black" guns would be OK, most likely other military-derived rifles (think SKS, AK, etc.), most common pump shotguns (there has never been much standardization of riot guns in the US military, and many different models of civilian guns were used), and even most bolt-action hunting rifles (commonly derived from military designs like the Mauser action, or even used in modern civilian form for sniper use).

Without a lot of careful thought, it seems to me that the majority of common firearms could easily be argued to be comparable enough to military firearms of the last century to be protected in this hypothetical case. Ironically, the leftovers would be some of the last ones that the gun-grabbers would try to ban.


I hope that if the Second is found to only protect military guns, that the various governments in the US will throw up their hands and leave the [smaller number of?] guns that can't as easily be argued to be of military use alone.

FreedomIsNotFree
03-21-2007, 9:25 PM
Free,

I think you'd have a hard case to press that the Federal Government couldn't have similar requirements on the unorganized militia. What they can't do is not allow the people to have arms. They may be able to say that certain arms are not good enough for a well regulated militia but that certainly couldn't restrict people from having M9s, M4s, M16s, etc. Just because they chose to split the militia into militia and select militia doesn't mean that they can't have certain requirements on the unorganzed militia.

Let me be clear here though. What we're really looking at is a core right to own the equivalent small arms to the US Military and arguably the militarizes of countries around the world. In fact, the weapons that may be banable are the ones that aren't military weapons.

Either way, the core of our right is likely to become very strong.

-Gene

OK, we obviously agree on that point. I dont doubt that reasonable restrictions are Constitutional. My point was just that at the time of the Militia Act of 1792, there was no distinction between organized and unorganized. The level of those restrictions must be predicated on the official, or unofficial, status of the militia. Obviously, the organized militia could be held to more restrictions, or rules, that the unorganized.

You know what I love about how this is unfolding....the anti's are always quoting US v. Miller...they say that this case proves that guns are not protected by the 2nd amendment. Anyone that has read the case knows that the SCOTUS was speaking about a sawed off shotgun...and they said it was not protected because it was not a firearm likely to be used by a member of the militia...that is was not a military arm.

That means if it was a firearm likely to be used by the military then it IS protected by the 2nd Amendment as those of us in the unorganized militia.

I know I'm preaching to the choir here, but when Miller turns around and bites the anti's in the arse I'm gonna love every second of it.

xenophobe
03-21-2007, 9:34 PM
The one thing that cuts strongly against the dissent argument that the Second doesn't apply in DC is that DC has its own Militia Act. Kind of seems moot if there is no reason for DC to have to raise a militia.

Again, I was not specifically looking at the 2nd Amendment in direct relation to DC, but rather the overall trend of the DC Court of Appeals and SCOTUS refusals to hear cases where DC was not given the same protections as states in regards to the Constitution and Bill of Rights in general. I do strongly concede that may be my failing in logic.


Also, if the Dissent is right, then the 14th wasn't necessary to incorporate the 2nd Amendment against the States. Otherwise the 2nd Amendment is a nullity before the passage of the 14th.

And I didn't say that the dissent was right. I just said it had more merit than it appeared, but admittedly not strictly on 2A grounds where the decision rests, but overall trends in what DC courts have ruled, and rather consistently, in the past.

In a number of ways, this case is really groundbreaking and appears to reverse many other trends without directly addressing them.

xenophobe
03-21-2007, 9:37 PM
You know what I love about how this is unfolding....the anti's are always quoting US v. Miller...they say that this case proves that guns are not protected by the 2nd amendment. Anyone that has read the case knows that the SCOTUS was speaking about a sawed off shotgun...and they said it was not protected because it was not a firearm likely to be used by a member of the militia...that is was not a military arm.

And the only reason they ruled as they did was because Miller was not represented when it was heard by SCOTUS, and if they would have provided proof that trench guns and sawed off shotguns were indeed used by the military, the ruling would have been considerably more favorable for us.

hoffmang
03-21-2007, 9:41 PM
383,

Those other guns are likely to be close enough to the 2A guns that that plus the simple reality that the politics of banning a shotgun is even harder than trying to ban military style weapons.

Free,
Miller is going to bite the antis in the butt, but mark my words that they will be making this argument all too soon. Miller isn't good law because there was no opposition briefing and they relief demanded was remand to take evidence on whether a short barreled shotgun has use in the military. The funny part is that it probably does.

Someone can bring Miller again in DC soon, but this time with a few hundred well researched pages on the military use and value of short barreled shotguns.

Xeno,

I completely concur. Remember that if SCOTUS doesn't take Parker then DC is a fair ground for any US Citizen to bring son of Miller or any other challenge to Federal firearms laws and since its the seat of the US Government it would have nationwide applicability against eg. BATFE.

-Gene

FreedomIsNotFree
03-21-2007, 9:46 PM
And the only reason they ruled as they did was because Miller was not represented when it was heard by SCOTUS, and if they would have provided proof that trench guns and sawed off shotguns were indeed used by the military, the ruling would have been considerably more favorable for us.

Yeah, I dont think the SCOTUS, in 1939, knew their decision on this case was going to be used for decades by anti folks to restrict individual gun ownership.

xenophobe
03-21-2007, 9:53 PM
Yeah, I dont think the SCOTUS, in 1939, knew their decision on this case was going to be used for decades by anti folks to restrict individual gun ownership.

Well, they apparently did know their decision would be referred for decades, but not in the way it has been. Reading Miller, it appeared that SCOTUS was disappointed that there wasn't anybody there to address the issue at hand and really had no other option than to rule as they did.

FreedomIsNotFree
03-21-2007, 9:55 PM
Well, they apparently did know their decision would be referred for decades, but not in the way it has been. Reading Miller, it appeared that SCOTUS was disappointed that there wasn't anybody there to address the issue at hand and really had no other option than to rule as they did.

Interesting...and where was the NRA on this? Thanks.

hoffmang
03-21-2007, 10:02 PM
In 1939 the NRA wasn't very active on gun laws since there was only the one...

-Gene

Rumpled
03-21-2007, 10:06 PM
Rumpled,

That's not how the Federal courts work exactly so that's not how it will play out.

-Gene

Gene, can you help educate me further? As I read/understand this; the full cicuit court can take this appeal. Is this wrong? Then either side could appeal to the Supremes, who only hear what they want.

FreedomIsNotFree
03-21-2007, 10:13 PM
In 1939 the NRA wasn't very active on gun laws since there was only the one...

-Gene

Hindsight is always 20/20. Unfortunately, I believe the NRA supported that one gun law. And obviously the Miller case could have used their input.

That being said, the NRA of yesteryear definitely is not the NRA of today. I believe they do great work, I've been a member for nearly 20 years, but they did initially try to derail the Parker case. I'm sure they had their reasons at the time, but I believe it is important to point out that they, the NRA, are not the Holy Grail when it comes to preserving and protecting our individual 2nd Amendment rights.

xenophobe
03-21-2007, 10:18 PM
the NRA, are not the Holy Grail when it comes to preserving and protecting our individual 2nd Amendment rights.

Watch out when you imply such things. You'll be burned at the stake.

I'm catching hell as a NRA attacker just asking why AB2521 wasn't even mentioned by the NRA-ILA as being something to 'watch'.

hoffmang
03-21-2007, 10:24 PM
Rumpled,

The en-banc DC Circuit could take the case but the math of who is likely to vote what on the DC Circuit means that they will either not take it or if they do they are likely to affirm it.

At that point it becomes law in the circuit unless and until cert is granted by SCOTUS.

Very few cases get en-banc review. The ones that do have a ton of middle of the road law professors ragging on the decision. Here the only people complaining about the decision are the scholars backed by the Joyce Foundation.

Freedom,

The biggest problem with gun laws in the past is that everyone knew what the 2nd Amendment meant to the point that a Florida Supreme Court Justice opined in 1941 (http://www.firearmsandliberty.com/cramer.racism.html) something along the lines that Florida handgun laws were known by everyone as to only apply to blacks.

The world changed in the 1960's. The ironic part is that at the same time the string of MLK, RFK assassinations were occurring, the civil rights movement was covering up the role firearms had played gaining blacks rights. King's body gaurds carried and the Deacons for Defense and Justice (http://en.wikipedia.org/wiki/Deacons_for_Defense_and_Justice) stopped a whole lot of riots before they started by explaining to the KKK that they were pretty good shots too and asking them if they liked their .38s...

-Gene

FreedomIsNotFree
03-21-2007, 10:24 PM
Watch out when you imply such things. You'll be burned at the stake.

I'm catching hell as a NRA attacker just asking why AB2521 wasn't even mentioned by the NRA-ILA as being something to 'watch'.

I hear ya...

I've got my fire retardant underwear on just in case....;)

FreedomIsNotFree
03-21-2007, 10:31 PM
Rumpled,

The en-banc DC Circuit could take the case but the math of who is likely to vote what on the DC Circuit means that they will either not take it or if they do they are likely to affirm it.

At that point it becomes law in the circuit unless and until cert is granted by SCOTUS.

Very few cases get en-banc review. The ones that do have a ton of middle of the road law professors ragging on the decision. Here the only people complaining about the decision are the scholars backed by the Joyce Foundation.

Freedom,

The biggest problem with gun laws in the past is that everyone knew what the 2nd Amendment meant to the point that a Florida Supreme Court Justice opined in 1941 (http://www.firearmsandliberty.com/cramer.racism.html) something along the lines that Florida handgun laws were known by everyone as to only apply to blacks.

The world changed in the 1960's. The ironic part is that at the same time the string of MLK, RFK assassinations were occurring, the civil rights movement was covering up the role firearms had played gaining blacks rights. King's body gaurds carried and the Deacons for Defense and Justice (http://en.wikipedia.org/wiki/Deacons_for_Defense_and_Justice) stopped a whole lot of riots before they started by explaining to the KKK that they were pretty good shots too and asking them if they liked their .38s...

-Gene


I dont disagree. That is why I mentioned the distinction between then any now myself. Its like the old addage: Give em an inch and they'll take a mile.

At the time, in that era, to deny an individuals right to bear arms was inconceivable(I just thought of the movie Meetballs...hah.). They did not know the extent it was going to be pushed. I believe, if they had, they would have fought VERY hard...like we do today.

Interesting you mention the history of gun laws and how it related to racism and slavery. Isn't it ironic how a lasting negative effect of slavery was the erosion of our 2nd Amendment rights?

Rumpled
03-21-2007, 10:35 PM
Rumpled,

The en-banc DC Circuit could take the case but the math of who is likely to vote what on the DC Circuit means that they will either not take it or if they do they are likely to affirm it.

At that point it becomes law in the circuit unless and until cert is granted by SCOTUS.

Very few cases get en-banc review. The ones that do have a ton of middle of the road law professors ragging on the decision. Here the only people complaining about the decision are the scholars backed by the Joyce Foundation.


-Gene

OK, so I wasn't wrong in principle, just on the practical. I was wondering what the makeup of the whole circuit would be like; if Gene is correct (I'll stipulate to that) then it doesn't matter.

Would we be looking at a year or more for Supremes?

hoffmang
03-21-2007, 10:36 PM
Everytime I hear a person who is supposedly progressive - and would seem to be progressive in other parts of her political effort - supporting laws that were written to keep a disfavored racial group out of power I just sigh.

For everyone who claims that private firearms ownership and carrying isn't the base of liberty, we are going to be spending a lot of time over the next 10 years explaining how there were three rights that won the civil rights movement - voting, speaking/assembling, and arms.

Pistols, rifles and shotguns certainly guaranteed the liberty of blacks in the South against government tyranny and that ended only 35 years ago...

-Gene

hoffmang
03-21-2007, 10:39 PM
Rumpled,

I'm in touch with the guy who most cares about that head count. Sent him a bottle of champagne in fact.

Based on Dr Volokh's analysis, the en-banc appeal should be denied in June/July. That means a cert filing has to be in to SCOTUS in September/October. That sets this case up for a SCOTUS ruling in mid-summer 2008. See:
http://volokh.com/archives/archive_2007_03_04-2007_03_10.shtml#1173454696

-Gene

FreedomIsNotFree
03-21-2007, 10:50 PM
Rumpled,

I'm in touch with the guy who most cares about that head count. Sent him a bottle of champagne in fact.

Based on Dr Volokh's analysis, the en-banc appeal should be denied in June/July. That means a cert filing has to be in to SCOTUS in September/October. That sets this case up for a SCOTUS ruling in mid-summer 2008. See:
http://volokh.com/archives/archive_2007_03_04-2007_03_10.shtml#1173454696

-Gene

I have family that live in Bethesda...I used to stay there a few weeks every summer. More than once we would head down the the SCOTUS for their decisions. I must admit I have always been impressed by it....the history and all. Sure would be nice to be there in the summer of 2008 if your timeline proves true.

hoffmang
03-21-2007, 10:56 PM
The oral argument would be more like Fall btw.

I think that's a field trip for me at least.

-Gene

FreedomIsNotFree
03-21-2007, 11:09 PM
The oral argument would be more like Fall btw.

I think that's a field trip for me at least.

-Gene

You know, I didn't think of the oral argument. I had been there in the summer for the decisions, but never for the argument. That sure would be something.

If my recollection serves me, we had to get up quite early to gets seats. If and when the SCOTUS grants cert on this case you better believe those seats are going to be worth their weight in gold.

Can you imagine the atmosphere? I bet people are going to be lined up for days to get those seats. I must admit it was quite circus like, outside, on the steps. Protesters, hustlers, etc. etc.

hoffmang
03-21-2007, 11:23 PM
Oh yeah... If I go, I go expecting that I have less than 50-50 odds of getting a seat. But for that.... worth it.

-Gene

bg
03-22-2007, 12:42 PM
More on the D.C ruling. It's a "nutty experiment" by golly !
D.C Folks speak up (http://washingtontimes.com/metro/20070321-112652-1152r.htm)

But most of the approximately 20 witnesses who testified during the four-hour hearing spoke to the recent federal appeals court decision to overturn the gun ban. The ruling, handed down March 9, stated that the right to bear arms as guaranteed in the Second Amendment to the Constitution applies to individuals and not only to militias. City officials plan to appeal the decision. And then there's this..

Council member Phil Mendelson, at-large Democrat and chairman of the Committee on Public Safety and the Judiciary, said the court decision will increase the number of guns in the District. "I think it's public endangerment," he said.

Several confrontations occurred during exchanges between council members and witnesses over whether allowing residents to own guns would make them safer. Council member Mary Cheh, Ward 3 Democrat, called the proposal to allow guns for self-protection a "dangerous, nutty experiment" that would only increase violence. How can the good Lady come to this conclusion when she's never even been around a place that has allowed citizens to protect themselves ? You can only call Car 54 so many times..

mikehaas
03-23-2007, 6:44 AM
I hear ya...

I've got my fire retardant underwear on just in case....;)
No problem. Just don't ask it 12 MORE times AFTER it was answered. That's a great way to stop getting answers when you ask questions.

Mike

luvtolean
03-23-2007, 7:21 AM
California's firearms laws are in for a bruising assuming Parker is upheld at SCOTUS and there comes a 14th amendment incorporation case somewhere in the US.

-Gene

Gene, did you see this post I put up in another thread? I looked into some of these issues and it is interesting...

My GF is in ConLaw right now, and she is deep into the Due Process Clause, and this case is a very interesting situation.

I wonder if the reason you'll hear anti-gunners argue the second is not an "individual right", instead of arguing the textually correct "fundamental right", is they don't want to even utter something so heinous.

I strongly recommend we all start using the "Fundamental Right" terminology in our discussions people.

If the Second is a "fundamental right", like the first, it requires "strict scrutiny" be applied to all laws restricting the fundamental right. Most of the Bill of Rights are considered to be "fundamental rights" and thus are incorporated into the fourteenth amendment. Specifically, the 1st, 4th, 5th, 6th and 8th. So, the strength of these other amendments comes not from being an "individual right", but more legally correct, a "fundamental right".

From Constitutional Law- Individual Rights, by Ides and May there are several interesting references.



The Court has also held that neither the Second Amendment right ot bear arms, nor the Seventh Amendment right to a jury trial in civil cases is incorporated into the Fourteenth Amendment. Presser v Illinois (1886)

But later, more heartening information.



If a fundamental liberty interest is infringed, the Court applies strict scrutiny, in which case a law will usually be struck down unless it is shown to be the least burdensome means of achieving a compelling governmental interest.

I really like the use of the word "infringe" in there, don't you?

But wait, there's more. There is a landmark "footnote" from United States v Carolene Products Co.. This is called "footnote four".



But in dicta contained in footnote four, Justice Stone's opinion for the Court suggested that the rational basis standard should govern other unenumerated liberty interests as well. Stone wrote that more rigorous judicial scrutiny is called for on in three ecceptional situations: (1) if "legislation appears on its face to be within a specific prohibition of the Contitution, such as those of the first ten amendments"; (2) if legislation "restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation," such as impairments on the right to vote; and (3) if legislation is aimed at "discrete and insular minorities" who, because of prejudice against them, are unable to protect themselves through ordinary political processes. The first of these exceptions involves the Due Process Clause....For these purposes, if a Bill of Rights provision has been incorporated into the Fourteenth Amendment so that it applies against the states, it will be deemed to be "equally specific" as to the states even though the text of the Fourteenth Amendment does not mention it.

It seems to me that for Parker to be really meaningful to us, the Court needs to disagree with the dissenting opinion of the appeals court that the Constution does not apply equally to DC. (as if it becomes DC specific, and treated differently than a state, we get little)

Here is the basic model for due process cases.



1. Is the interest in question one that qualifies as a protected liberty under the Due Process Clause?
2. Is the protected liberty one that is deemed to be fundamental?
3. Does the challenged law interfere with the fundamental liberty in a serious enough way to impinge on or unduly burden that liberty, thereby triggering strict scrutiny?
4. If a fundamental liberty has been impinged on or unduly burdened, does the law substantially further a compelling government interest?
5. Has the government chosen the least burdensome means of achieving its compelling interest?

FYI, and probably unsurprisingly after reading that, most laws cannot survive strict scrutiny as applied to a fundamental liberty.

If the decision declares it a fundamental right, which the opinion of the appeals court had the exact ring of, this gets very interesting.

With the current non-incorporation decision in Presser, how could the Court rule in favor of Parker et al, but not contradict this previous decision?

If they did rule in favor, and did indicate it was a fundamental right...wow.

We really wouldn't need another case incorporating it into the Fourteenth Amendment, this could be it.

FreedomIsNotFree
03-23-2007, 8:15 AM
No problem. Just don't ask it 12 MORE times AFTER it was answered. That's a great way to stop getting answers when you ask questions.

Mike

Huh?

hoffmang
03-23-2007, 11:19 AM
luvtolean,

So a couple of points and note that there is some tentative thinking in here from me.

The analysis that the right of the people protected in the Second is fundamental is I believe correct. That also has the side effect of meaning that it may not be overturnable even by amendment to the Constitution. The only way to take that right away is by revolution from a legal stand point.

All that said, I'm saying that the argument against Parker in California will be to wave hands at that issue and claim its not incorporated in the 14th. That's the reality of the 9th Circuit's majority of judges.

Now, while we agree that the RKBA is fundamental, it may very well have a slightly different nature than other BOR rights. There is strong evidence that even at the time of the founding RKBA was a right that one could lose with due process in individual cases. I loved DC's language on this regarding their militia act:

“Every able-bodied male citizen resident within the
District of Columbia, of the age of 18 years and under the age of
45 years, excepting . . . idiots, lunatics, common drunkards,
vagabonds, paupers, and persons convicted of any infamous
crime, shall be enrolled in the militia.” D.C. Code 49-401


Additionally there are writings about how violent criminals could be debarred the use or arms in the 1770s. My only point here is that it is a right that has certain different contours even if it is fundamental.

Now, the dissent's holding that DC was a BOR free zone is kinda funny. Ignoring that for a moment - if Parker's reasoning stands but SCOTUS tries to follow the "but it doesn't apply to DC" then we're still in a pretty good place. DC is the seat of the Federal Government. We can bring suit against any Federal Firearms law in DC regardless of our domicile. That translates to we don't need standing in the 9th to sue over NFA in the District.

Also, if the right doesn't apply to DC because its not a State, well ipso facto we need no 14th Amendment because the right of the people to keep and bear arms was applied against the States upon passage of the BOR. That's the most interesting problem with the dissent's reasoning...

Either way, I expect a win on Parker and need for a couple of follow up clarifying cases. The nifty new thing is that we may all start winning these cases and having to defend the appeals instead of loosing them and having to appeal.

-Gene

xenophobe
03-23-2007, 1:05 PM
It seems to me that for Parker to be really meaningful to us, the Court needs to disagree with the dissenting opinion of the appeals court that the Constution does not apply equally to DC. (as if it becomes DC specific, and treated differently than a state, we get little)

The DC Circuit did disagree with the dissenting opinion, and SCOTUS will probably address it but it really wouldn't do anything either way. DC rights and state rights are a separate issues.

The problem here is that if look through DC Circuit cases, there has been a consistent trend that it has been ruled a territory and does not receive the same treatment as a state in regards to the Constitution and BOR.

DC only gets a token senator and representatives, but they do not have any real voting authority on the floor, only in a small committee, they have a mayor, but the mayor is mostly a powerless political puppet controlled by oversight committee and Congress...

The issue becomes DC actually attaining statehood to receive the full benefits of being a state of the union. A constitution was drafted and voted on, but was never ratified by Congress. Until DC achieves statehood, it will never receive the same protections and privileges that a state will, and the DC courts will keep ruling as such.

hoffmang
03-23-2007, 1:08 PM
Xeno,

If DC is treated as a territory, then Dred Scott applies which makes it pretty clear that the 2nd Amendment applies in territories.

-Gene

xenophobe
03-23-2007, 1:18 PM
If DC is treated as a territory, then Dred Scott applies which makes it pretty clear that the 2nd Amendment applies in territories.

I'm not arguing that. The DC circuit clearly stated that the 2nd Amendment does indeed apply to DC. That doesn't negate the fact that DC does not have the rights or privileges of a state, and the DC circuit has also consistently found that to be true as well.

Pvt. Cowboy
03-23-2007, 1:28 PM
If the Parker ruling is a potential backfire for RKBA, how come the gun controllers are the ones who are sweating? :cool:

FreedomIsNotFree
03-23-2007, 1:31 PM
This brings up an interesting question that I have been thinking of lately.

Are you a U.S. Citizen OR a Citizen of your respective State?

Are you a citizen of the Federal Government or a State?

The 14th Amendment was not intended to apply to citizens of a State.

“The rights and privileges, and immunities which the fourteenth constitutional amendment and Rev. St. section 1979 [U.S. Comp. St. 1901, p. 1262], for its enforcement, were designated to protect, are such as belonging to citizens of the United States as such, and not as citizens of a state”.
Wadleigh v. Newhall 136 F. 941 (1905)

“...rights of national citizenship as distinct from the fundamental or natural rights inherent in state citizenship”.
Madden v. Kentucky, 309 U.S. 83: 84 L.Ed. 590 (1940)


“We have in our political system a Government of the United States and a government of each of the several states. Each is distinct from the other and each has citizens of its own...”
U.S. v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588

luvtolean
03-23-2007, 1:34 PM
All that said, I'm saying that the argument against Parker in California will be to wave hands at that issue and claim its not incorporated in the 14th. That's the reality of the 9th Circuit's majority of judges.

To be perfectly honest, the only use the ninth circus has for me is that they hear the case so when they rule in favor of banning guns, and deny the appeal for an en banc, certiari can be applied for.

IMO, that court is politicized to the point of uselessness when it comes to guns and I'd expect any case around firearms there will be denied hearing, or ruled against.

I loved DC's language on this regarding their militia act:

I just got back from MA last night, and did a bunch of Revolutionary War history stuff, along with reading a book about a local tavern that was a hotspot of history in the area.

They had a way with writing very direct and to the point, especially in local politics. Something to do with feather quill pens and expensive parchment? ;)

Either way, I expect a win on Parker and need for a couple of follow up clarifying cases. The nifty new thing is that we may all start winning these cases and having to defend the appeals instead of loosing them and having to appeal.

-Gene

For sure, nothing is going to change without them. But I think it is very plausible those cases are imminently winnable.

It would be real nice if we were defending appeals wouldn't it?!

hoffmang
03-23-2007, 1:41 PM
That doesn't negate the fact that DC does not have the rights or privileges of a state, and the DC circuit has also consistently found that to be true as well.

Xeno,

You've hit on the flaw in the dissent's reasoning. She assumed a priori that the Second Amendment was a state's right.

-Gene

FreedomIsNotFree
03-23-2007, 1:52 PM
Xeno,

You've hit on the flaw in the dissent's reasoning. She assumed a priori that the Second Amendment was a state's right.

-Gene

Exactly, by that reasoning residents of DC, US Citizens, have no BOR rights or protections....so they are second class citizens?

xenophobe
03-23-2007, 2:09 PM
Yes, DC citizens are second class citizens. They have no official representation in either the Senate or House of Representatives, they have no senate or assembly, and their municipal code is created by congress directly. They are not a self-governing body like a state, and the Mayor has very limited authority, unlike a mayor of a city within a state, or even that of a governor of a state. And it would appear, that until 1961, they did not even have a vote in the Electoral College.

FreedomIsNotFree
03-23-2007, 2:15 PM
Yes, DC citizens are second class citizens. They have no official representation in either the Senate or House of Representatives, they have no senate or assembly, and their municipal code is created by congress directly. They are not a self-governing body like a state, and the Mayor has very limited authority, unlike a mayor of a city within a state, or even that of a governor of a state. And it would appear, that until 1961, they did not even have a vote in the Electoral College.

In terms of representation collectively in Government absolutely, but does that mean the BOR does not apply to them as individuals?

luvtolean
03-23-2007, 2:20 PM
Yes, DC citizens are second class citizens. They have no official representation in either the Senate or House of Representatives, they have no senate or assembly, and their municipal code is created by congress directly. They are not a self-governing body like a state, and the Mayor has very limited authority, unlike a mayor of a city within a state, or even that of a governor of a state. And it would appear, that until 1961, they did not even have a vote in the Electoral College.

Right, which is why I made the note I made about the dissenting opinion.

The Appeals Court disagreed, but it's something I don't understand well (about all I know is what you typed here) and I still think it is a possible "gotcha".

As Gene mentioned, ultimately it might be helpful too, allowing citizens to apply directly to the federal courts, very useful for Californians being oppressed by the ninth.

xenophobe
03-23-2007, 2:28 PM
Yeah, it's not an easy subject, and I know what I was taught when I lived in Alexandria and what I have later looked into.

In terms of representation collectively in Government absolutely, but does that mean the BOR does not apply to them as individuals?

It's been relatively consistently ruled in the past that DC does not have complete protections of the Constitution or BOR, and that BOR protections to individuals may be somewhat limited. Parker is sort of a reversal in trends. A very good one indeed.

Paratus et Vigilans
03-23-2007, 2:48 PM
Freeedom,

In answer to your earlier question, I would say that the United States of America, as a nation-state, has citizens, while the "several states" and the District of Columbia and the various U.S. owned territories around the world (Puerto Rico, Virgin Islands, CNMI, etc.) have residents. States, the D.C. and the territories don't have citizens of their own, per se.

Furthermore, we are not citizens of any government, but rather of the nation-state, which itself has a government. The government and the nation-state it governs are not the same thing. Think of a computer. It has a CPU and an operating system. Maybe that's not the best analogy, but it should suffice for this subject matter. The USA is the CPU, the Federal Government is the operating system for the USA.

Does that make sense? :confused:

Paratus et Vigilans
03-23-2007, 2:51 PM
I guess I just overturned U.S. vs. Cruikshank. :o

Whoops! Oh well . . . . :D

FreedomIsNotFree
03-23-2007, 2:51 PM
Yeah, it's not an easy subject, and I know what I was taught when I lived in Alexandria and what I have later looked into.



It's been relatively consistently ruled in the past that DC does not have complete protections of the Constitution or BOR, and that BOR protections to individuals may be somewhat limited. Parker is sort of a reversal in trends. A very good one indeed.

In terms of State protections sure, they are not a State, but I'm speaking specifically about the individual.

Is it the contention of the court that DC residents, US citizens, individuals, not to be mistaken for State citizens, do not have the same BOR rights/protections as State citizens?

Correct me if I am wrong, but wasn't that one of the goals of the 14th Amendment....to give BOR rights protections to individuals in the States?

luvtolean
03-23-2007, 2:55 PM
Correct me if I am wrong, but wasn't that one of the goals of the 14th Amendment....to give BOR rights protections to individuals in the States?

Yes, that's how I understand it, as noted in "footnote four".

FreedomIsNotFree
03-23-2007, 3:03 PM
Freeedom,

In answer to your earlier question, I would say that the United States of America, as a nation-state, has citizens, while the "several states" and the District of Columbia and the various U.S. owned territories around the world (Puerto Rico, Virgin Islands, CNMI, etc.) have residents. States, the D.C. and the territories don't have citizens of their own, per se.

Furthermore, we are not citizens of any government, but rather of the nation-state, which itself has a government. The government and the nation-state it governs are not the same thing. Think of a computer. It has a CPU and an operating system. Maybe that's not the best analogy, but it should suffice for this subject matter. The USA is the CPU, the Federal Government is the operating system for the USA.

Does that make sense? :confused:

Thanks for the explanantion Paratus.

The problem I have with that explanation, and perhaps its just unclear to me, is that this would mean you cant be a State Citizen independent of a US citizen. Do I have to be a US citizen? Can I be a State citizen only?

Since you are so keen to overturn over a century of precedence, United States v. Cruikshank, 92 U.S. 542 (1875), here are a couple more for you to ponder...:)

"The United States and the State of California are two separate sovereignties, each dominant in its own sphere."
Redding v. Los Angeles (1947), 81 C.A.2d 888, 185 P.2d 430.


“There are, then, under our republican form of government, two classes of citizens, one of the United States and one of he state”.
Gardina v. Board of Registrars of Jefferson County, 160 Ala. 155; 48 So. 788 (1909)


“...rights of national citizenship as distinct from the fundamental or natural rights inherent in state citizenship”.
Madden v. Kentucky, 309 U.S. 83: 84 L.Ed. 590 (1940)


“...he was not a citizen of the United States, he was a citizen and voter of the State,...” “One may be a citizen of a State an yet not a citizen of the United States”.
McDonel v. The State, 90 Ind. 320 (1883)

FreedomIsNotFree
03-23-2007, 3:07 PM
Yes, that's how I understand it, as noted in "footnote four".

Then if you follow the logic, or illogic, Federal residents, those not living in States, did not have BOR or Consitutional protections until the 14th Amendment was ratified.....I dont think that makes sense.....but what do I know?

xenophobe
03-23-2007, 3:12 PM
Is it the contention of the court that DC residents, US citizens, individuals, not to be mistaken for State citizens, do not have the same BOR rights/protections as State citizens?

Before the Parker reversal, it was often ruled that they do not have the same protections and rights applied to them as the states, not that they did not have them at all.

And just for the record, it's not a personal opinion of mine, it's just what I found when I was looking into it further. Looking at a collective body of laws and subsequent rulings, it's often difficult to find any consistency without selective (biased) filtering...

Correct me if I am wrong, but wasn't that one of the goals of the 14th Amendment....to give BOR rights protections to individuals in the States?

You're not wrong. I always looked at it a little differently, that the 14th Amendment was created to force the states to stop ignoring the Constitution or BOR whenever they saw fit. Same thing really.

FreedomIsNotFree
03-23-2007, 3:19 PM
Before the Parker reversal, it was often ruled that they do not have the same protections and rights applied to them as the states, not that they did not have them at all.

And just for the record, it's not a personal opinion of mine, it's just what I found when I was looking into it further. Looking at a collective body of laws and subsequent rulings, it's often difficult to find any consistency without selective (biased) filtering...



You're not wrong. I always looked at it a little differently, that the 14th Amendment was created to force the states to stop ignoring the Constitution or BOR whenever they saw fit. Same thing really.


But isn't that distinction HUGE?

Either the BOR and Constitution applies to everyone...

or

A Constitutional Amendment had to be passed to GRANT those protections to everyone...

luvtolean
03-23-2007, 3:25 PM
But isn't that distinction HUGE?

Either the BOR and Constitution applies to everyone...

or

A Constitutional Amendment had to be passed to GRANT those protections to everyone...

Yes! ;)

The answer is both, and if you want to be more specific, there is no short answer. I site a textbook, and cases on the subject a few posts back:

http://www.calguns.net/calgunforum/showpost.php?p=546914&postcount=60

FreedomIsNotFree
03-23-2007, 3:38 PM
It cant be both....you dont pass an Amendment to grant something that already exists.

luvtolean
03-23-2007, 3:39 PM
Did you read my post #60?

xenophobe
03-23-2007, 3:46 PM
Either the BOR and Constitution applies to everyone...

or

A Constitutional Amendment had to be passed to GRANT those protections to everyone...


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.

Looking at the first draft of what later became the 14th Amendment is insightful:

The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States; and to all persons in the several States equal protection in the rights of life, liberty, and property.

The 14th in combination with the Supremacy Clause gives Congress the power to force states to uphold the Constitution and BOR....

I'm mentally spent... time to get stuff done. lol

Paratus et Vigilans
03-23-2007, 3:48 PM
But isn't that distinction HUGE?

Either the BOR and Constitution applies to everyone...

or

A Constitutional Amendment had to be passed to GRANT those protections to everyone...

Freedom,

They DO apply to everyone (i.e., to all of us people) already - the question is, whether the protections afforded the people by the U.S. Constitution and the Bill of Rights restrict the legislative ability of the states, and if so, to what extent. That's why there's only been a hodge podge ad hoc application of the Bill of Rights over the years to state legislation through the due process clause of the 14th Amendment.

As for the ability to be a citizen of a state, yes, I see those precedents too, and think that they are too loose with their language. Also, note how old they are - they harken back to a time when the war between the states was not that long gone, and the "state first, nation second" mentality that spawned the war (along with other issues) was still prevalent.

One thing the Civil War did was cement the concept of the Union, the government of the United States of America, as the primary political entity under which the people live and are governed, with the states having a secondary, lesser role. That is why we have the legal doctrine of federal pre-emption. If there is a federal law on the subject, it controls and it pre-empts any state law on that precise same subject. The states are free to legislate around the borders of it, but they cannot directly oppose or contradict a federal law.

This is not something that is often thought about, or argued about, by the average American. It is something taken for granted, for most, until such time as a direct impact on a given person or class of persons (like us gun owners :) ) occurs.

FreedomIsNotFree
03-23-2007, 4:00 PM
Did you read my post #60?

Yes, I did. Actually, I read it when you initially posted it in the other thread. And I dont disagree with the "fundemental right" and "strict scrutiny" angle or argument. If you indeed believe that way yourself, then you are saying without the 14th Amendment, we have no individual 2nd Amendment protections as citizens of a State.

I'm not trying to put words in your mouth....just trying to follow the thinking.

I believe that even without the 14th Amendment, we, as State citizens are due all rights and protections that the 2nd Amendment provides. Even if the State does not explicitly express RKBA in its Consitution, ie California, does the 2nd Amendment not apply to us as individuals? Would we, as citizens of CA, not have freedom of speech without specific expressions in the State Constitution?

FreedomIsNotFree
03-23-2007, 4:53 PM
Xeno....I see where you guys are coming from...dont get me wrong.

Just follow me for a second here....lets look at some of the history, or why we have a 14th Amendment.

1. After the civil war recently freed slaves were having trouble in some states with the BOR/Constitution not being applied to them.

2. The courts were unable, at the time, to resolve the issue.

3. Congress passed a Constitutional Amendment "recognizing" every ones protections under the BOR/Constitution.

The states that were not recognizing the rights of recently freed blacks were arguing that they, the freed blacks, were NOT citizens....therefor the BOR nor the US Constitution applied to them.

In response, Congress passes a Constitutional Amendment making it clear that all persons were protected by the US Constitution and creating a new class of citizen...the US Citizen.

So, as State citizens, did the BOR not apply to us as individuals until AFTER the 14th Amendment?

I dont believe my rights/protections, individually, under the BOR was in question prior to the 14th Amendment.

luvtolean
03-23-2007, 4:54 PM
I believe that even without the 14th Amendment, we, as State citizens are due all rights and protections that the 2nd Amendment provides. Even if the State does not explicitly express RKBA in its Consitution, ie California, does the 2nd Amendment not apply to us as individuals? Would we, as citizens of CA, not have freedom of speech without specific expressions in the State Constitution?

As my post says, not all rights are protected like the first. You don't have the fundamental right to a jury trial in a civil case either as Presser mentions. This might not sound like a big deal to you, but it might if you shot someone in your living room.

As of now, the last ruling basically says no to your statement. That is why local gun control is so prevalent.

Parker is out to answer this very question, and my personal question, as I put in that post is, can we have a favorable Parker ruling, and not basically incorporate a fundamental right interpretation?

And therefore, by footnote four, basically incorporate the right in relation to state laws through the Fourteenth Amendment.

Pvt. Cowboy
03-23-2007, 5:05 PM
I want to get back on track to the original claim by the California Progressive Report:

"... This decision – if reviewed and upheld on the same grounds by the US Supreme Court – would reverse decades-old precedent that held that while the Second Amendment prohibited the Federal Government from outlawing state “militias” and their arms, it provided no Constitutional authority for individuals to “bear arms”."

Appallingly tortured attempt at spin. Just awful.

Here's what the DC Circuit Court held:


"Essentially, the appellants claim a right to possess what they describe as “functional firearms,” by which they mean ones that could be “readily accessible to be used effectively when necessary” for self-defense in the home. They are not asserting a right to carry such weapons outside their homes. Nor are they challenging the District’s authority per se to require the registration of firearms."

"... We have consistently treated a license or permit denial pursuant to a state or federal administrative scheme as an Article III injury [...] Heller has invoked his rights under the Second Amendment to challenge the statutory classifications used to bar his ownership of a handgun under D.C. law, and the formal process of application and denial, however routine, makes the injury to Heller’s alleged constitutional interest concrete and particular. He is not asserting that his injury is only a threatened prosecution, nor is he claiming only a general right to handgun ownership; he is asserting a right to a registration certificate, the denial of which is his distinct injury.

"... We note that the Ninth Circuit has recently dealt with a Second Amendment claim by first extensively analyzing that provision, determining that it does not provide an individual right, and then, and only then, concluding that the plaintiff lacked standing to challenge a California statute restricting the possession, use, and transfer of assault weapons. (See Silveira v. Lockyer, 312 F.3d 1052, 1066-67 & n.18 -- 9th Cir. 2003). We think such an approach is doctrinally quite unsound."

"... Reasonable restrictions also might be thought consistent with a “well regulated Militia.” The registration of firearms gives the government information as to how many people would be armed for militia service if called up. Reasonable firearm proficiency testing would both promote public safety and produce better candidates for military service."

"... Just as the First Amendment free speech clause covers modern communication devices unknown to the founding generation, e.g., radio and television, and the Fourth Amendment protects telephonic conversation from a “search,” the Second Amendment protects the possession of the modern-day equivalents of the colonial pistol."
They're basically saying that the role of registration is to provide a citizen's militia like Switzerland has and that by denying registration of firearms by the appellants, they've suffered an Article III injury and have been given relief by the DC Circuit Court in their findings on US vs. Parker.

Also, for those anti-war types that very rightly complain about the enormous budgetary expense for 'Star Wars' weapons in space programs and nuclear arms -- military expenditures being over half the US yearly budget -- it sounds like they have a perfect opportunity to put a stop to that by making America's Army a true citizen-soldier powered force of capable adult males who would likely be adverse to going halfway around the world performing nation-building exercises on behalf of Halliburton and Exxon. Conscientious objectors and non-violent Quakers and Buddhists are not exempt from militia service: They report to the American Red Cross stations nearest their domicile to learn lifesaving techniques, CPR, and bandage-rolling just like Swiss conscientious objectors are compelled to do.

Who here would be willing to register their individually owned and kept select-fire M4 -- your stewardship of such a weapon being Federally-mandated and therefore tax-deductable, mind you --and prove their proficiency with it in yearly shooting qualifications adminstered by the CMP?

FreedomIsNotFree
03-23-2007, 5:15 PM
Paratus,

As for the ability to be a citizen of a state, yes, I see those precedents too, and think that they are too loose with their language. Also, note how old they are - they harken back to a time when the war between the states was not that long gone, and the "state first, nation second" mentality that spawned the war (along with other issues) was still prevalent.


Does stari decisis have a shelf life? I'm not saying precedence cant change, only that it stands until a higher court says differently. And to that point...I dont see how those decisions I quoted are "old" ....they were in the years 1947, 1909, 1940 and 1883 respectively. Oh, and we did have Cruikshank i n1875. These cases hardly harken back to pre civil war mentalities.


One thing the Civil War did was cement the concept of the Union, the government of the United States of America, as the primary political entity under which the people live and are governed, with the states having a secondary, lesser role. That is why we have the legal doctrine of federal pre-emption. If there is a federal law on the subject, it controls and it pre-empts any state law on that precise same subject. The states are free to legislate around the borders of it, but they cannot directly oppose or contradict a federal law.

Of course....I agree, but the problem is, at the time, the Federal Government was not what it is today. Overbearing and overpowering. Now the Feds want to control nearly all aspects of life....the 10th Amendment is nearly dead....lets not even get into the commerce clause.


This is not something that is often thought about, or argued about, by the average American. It is something taken for granted, for most, until such time as a direct impact on a given person or class of persons (like us gun owners ) occurs.

Again, I agree. Definitely taken for granted by most. I think its unfortunate that the easy life so many strive for is absent any critical thinking of ones rights/responsibilities as an American.

Thankfully, we have boards like this where people like myself can stumble over legal theory as long as we find it interesting...:)

FreedomIsNotFree
03-23-2007, 5:22 PM
As my post says, not all rights are protected like the first. You don't have the fundamental right to a jury trial in a civil case either as Presser mentions. This might not sound like a big deal to you, but it might if you shot someone in your living room.

As of now, the last ruling basically says no to your statement. That is why local gun control is so prevalent.

Parker is out to answer this very question, and my personal question, as I put in that post is, can we have a favorable Parker ruling, and not basically incorporate a fundamental right interpretation?

And therefore, by footnote four, basically incorporate the right in relation to state laws through the Fourteenth Amendment.

Well see, thats where we definitely disagree.

If I were to believe that only with the 14th Amendment did I receive BOR protections then we would agree.

The 14th Amendment was meant to apply to recently freed slaves....not State citizens.

It was in that context that it was said that not all of the BOR dealt with "life, liberty, or property".

hoffmang
03-23-2007, 5:47 PM
Freedom,

Does stari decisis have a shelf life? I'm not saying precedence cant change, only that it stands until a higher court says differently. And to that point...I dont see how those decisions I quoted are "old" ....they were in the years 1947, 1909, 1940 and 1883 respectively. Oh, and we did have Cruikshank i n1875. These cases hardly harken back to pre civil war mentalities.

Paratus is pointing out that a lot of the quotes sited back then were really dicta and not central to the ruling. Dicta certainly has a shelf life as its not Stare Decisis.

-Gene

FreedomIsNotFree
03-23-2007, 6:03 PM
Freedom,



Paratus is pointing out that a lot of the quotes sited back then were really dicta and not central to the ruling. Dicta certainly has a shelf life as its not Stare Decisis.

-Gene

Even if it were dicta, whats the shelf life of dicta? I've never heard or read that it has a shelf life.

I think more accurately, dicta, is not central to the issue at hand...in a case, but can be binding in a subsequent case.

hoffmang
03-23-2007, 6:18 PM
The shelf life of dicta is about 25 years. There are all sorts of ugly dicta out there and no court needs to follow it.

-Gene

xenophobe
03-23-2007, 11:24 PM
Well see, thats where we definitely disagree.

If I were to believe that only with the 14th Amendment did I receive BOR protections then we would agree.

The 14th Amendment was meant to apply to recently freed slaves....not State citizens.

It was in that context that it was said that not all of the BOR dealt with "life, liberty, or property".

See you're only looking at the 14th Amendment as the product of the final wording, when actually the 14th Amendment in it's first draft was designed to protect ALL citizens and to give the federal government the power to enforce state compliance, and later incorporated the Civil Rights Act which was designed to apply specifically to recently freed slaves and ended up being part of the citizenship clause of the 14th...

The 14th Amendment in it's early stages had little to do with slaves or racial discrimination until the CRA was combined with the 14th due to having a similar achievable goal. There are a few other proposed Amendments that had nothing to do with what the 14th originally was, but there was enough similar language that it could all be combined to include everything that everyone wanted. That's one of the main reasons the language of the 14th is so debated, because everyone involved in it's creation had been arguing these facts in specific language for so long, they never considered how it would be misconstrued by the average, uninformed (to their many months of round and round inner circle debate language) citizen.

The first draft of the 14th:
The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States; and to all persons in the several States equal protection in the rights of life, liberty, and property.

The first draft of the Civil Rights Act:
"Make the colored man a citizen of the United States and he has every right which you or I have as citizens of the United States under the laws and constitution of the United States. ... He has defined status; he has a country and a home; a right to defend himself and his wife and children; a right to bear arms"

FreedomIsNotFree
03-24-2007, 12:36 AM
Xeno,

As stated previously, there are some of the BOR that are not protected by the 14th Amendment. Who do you have to be to have ALL of the BOR apply to you? Obviously, its not the new US Citizen that was created by the 14th Amendment. It must have been the original STATE citizen...there is no other.

xenophobe
03-24-2007, 1:53 AM
Yes, I understand, I was addressing the comments that you specifically made that I quoted in that reply.

And to answer your earlier question, as a State citizen, the states did not have to acknowledge your rights under the Constitution or Bill of Rights that were not specifically addressed in the State Constitution. The states basically had free reign over domestic individual-state issues and could just continue with a policy of not acknowledging your rights again and again without intervention of the federal courts. The 14th Amendment secured the power of the Supreme Court over those of the state courts.

FreedomIsNotFree
03-24-2007, 2:48 AM
Yes, I understand, I was addressing the comments that you specifically made that I quoted in that reply.

And to answer your earlier question, as a State citizen, the states did not have to acknowledge your rights under the Constitution or Bill of Rights that were not specifically addressed in the State Constitution. The states basically had free reign over domestic individual-state issues and could just continue with a policy of not acknowledging your rights again and again without intervention of the federal courts. The 14th Amendment secured the power of the Supreme Court over those of the state courts.

Just so I'm understanding you.

Are you saying there is no citizen, either US or State, which is protected under ALL of the BOR's?

Lets put to the side for a moment the fact that certain States were simply not recognizing some persons rights.

As the US Constitution was written, who did ALL of the BOR's apply to?


***when I say "ALL" of the BOR's I mean those other than the 10th.

luvtolean
03-24-2007, 5:27 AM
Just so I'm understanding you.

Are you saying there is no citizen, either US or State, which is protected under ALL of the BOR's?

You are a pretty intensely black and white person it seems.

Are all protected to some level? Yes.

Minorities get special interest from the court.

Who gets fundamental right and fourteenth amendment protection applied to all of the BOR? Nobody.

FreedomIsNotFree
03-24-2007, 12:15 PM
You are a pretty intensely black and white person it seems.

Are all protected to some level? Yes.

Minorities get special interest from the court.

Who gets fundamental right and fourteenth amendment protection applied to all of the BOR? Nobody.


Forget the 14th Amendment for a moment. Are you saying that the BOR, all of them, dont apply to anyone? So who did the Founders write the BOR for if they dont apply to any specific person?

They had to have been written for someone...

xenophobe
03-24-2007, 6:00 PM
Just so I'm understanding you.

Are you saying there is no citizen, either US or State, which is protected under ALL of the BOR's?

Lets put to the side for a moment the fact that certain States were simply not recognizing some persons rights.

As the US Constitution was written, who did ALL of the BOR's apply to?


***when I say "ALL" of the BOR's I mean those other than the 10th.


Also trying to put aside the 14th Amendment in answering your question, they applied to all US citizens. However, those that supported the creation of the 14th Amendment said the federal government, especially the Supreme Court as outlined in Article III section 2 had no jurisdiction to actually compel the states to comply. People who opposed the 14th Amendment said the 14th was not necessary because of the Supremacy Clause in the Constitution. The reason I haven't mentioned the opposition side of that debate was because the 14th Amendment was enacted.

So it really matters what side of the argument that you choose. One side stated the 14th (minus the CRA) was designed to provide authority to protect those rights, whereas the other said it was unnecessary.

So, I'm only taking the position that I am because we do have a 14th for the reasons they deemed it was necessary.

10TH AMENDMENT
03-24-2007, 6:15 PM
Paratus,

Of course....I agree, but the problem is, at the time, the Federal Government was not what it is today. Overbearing and overpowering. Now the Feds want to control nearly all aspects of life....the 10th Amendment is nearly dead....lets not even get into the commerce clause.

The rumors of my death are greatly exaggerated! ;) ;) ;)


10TH AMENDMENT

FreedomIsNotFree
03-25-2007, 2:39 AM
Also trying to put aside the 14th Amendment in answering your question, they applied to all US citizens. However, those that supported the creation of the 14th Amendment said the federal government, especially the Supreme Court as outlined in Article III section 2 had no jurisdiction to actually compel the states to comply. People who opposed the 14th Amendment said the 14th was not necessary because of the Supremacy Clause in the Constitution. The reason I haven't mentioned the opposition side of that debate was because the 14th Amendment was enacted.

So it really matters what side of the argument that you choose. One side stated the 14th (minus the CRA) was designed to provide authority to protect those rights, whereas the other said it was unnecessary.

So, I'm only taking the position that I am because we do have a 14th for the reasons they deemed it was necessary.


OK. You say the Constitution and ALL of the BOR's applied to "US Citizens" prior to the 14th Amendment.

How can that be if it was the 14th Amendment that created the "US Citizen"?. Prior to that there were only State citizens.

My point is ALL of the BOR's had to apply to somebody. It is my contention that the US Constitution, including ALL of the BOR's, apply to STATE citizens. If you are one of the "US Citizens" created by the 14th Amendment then, as courts have ruled in the past, ALL of the BOR's dont apply to you.

Why would I want to be a US citizen with limited Constitutional protections when I can be a State citizen with ALL of my Consitutional protections in tact?

FreedomIsNotFree
03-25-2007, 2:41 AM
The rumors of my death are greatly exaggerated! ;) ;) ;)


10TH AMENDMENT

Unfortunately, you have gone the way of the DoDo bird....:(

xenophobe
03-25-2007, 3:13 AM
OK. You say the Constitution and ALL of the BOR's applied to "US Citizens" prior to the 14th Amendment.

How can that be if it was the 14th Amendment that created the "US Citizen"?. Prior to that there were only State citizens.

I'm just giving you both sides to the argument that created the 14th Amendment if you remove civil rights factor of the citizenship clause.

Prior to the US Constitution there were only state citizens. State law = supreme law, subject to the US Constitution.


My point is ALL of the BOR's had to apply to somebody. It is my contention that the US Constitution, including ALL of the BOR's, apply to STATE citizens. If you are one of the "US Citizens" created by the 14th Amendment then, as courts have ruled in the past, ALL of the BOR's dont apply to you.

Why would I want to be a US citizen with limited Constitutional protections when I can be a State citizen with ALL of my Consitutional protections in tact?

Which is what I was addressing when talking about the District of Columbia and the fact that the courts pretty consistently ruled that DC residents and businesses don't have the same protections to their rights and privileges that the states did.

It really doesn't seem that we're in disagreement, but perhaps not quite agreeing on what we agree about. lol. it's late. This stuff makes my brain hurt. :p

FreedomIsNotFree
03-25-2007, 4:52 AM
Yes....and in retrospect....I see that some of my questions are rhetorical and would need a "think tank" to properly analyze....hardly something you and I are going to resolve in the middle of the night suffering from insomnia....:)

xenophobe
03-25-2007, 12:08 PM
Yes....and in retrospect....I see that some of my questions are rhetorical and would need a "think tank" to properly analyze....hardly something you and I are going to resolve in the middle of the night suffering from insomnia....:)

Something tells me many of the founders debated the exact same issues in fits of insomnia as well. ;)

KenpoProfessor
03-25-2007, 12:24 PM
Something tells me many of the founders debated the exact same issues in fits of insomnia as well. ;)

I can't speak for others but I'm quite enjoying the contrast in thought you guys have, both are right and wrong in the same instance, and what seeminlgy appears to be contradictory is not. Keep it coming, this is the whole point of a forum is it not?

Have a great Kenpo day

Clyde