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Old 09-03-2009, 7:25 PM
htjyang htjyang is offline
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Quote:
Originally Posted by RichardAHamblen View Post
As for timing, Gentlemen (and Ladies), to paraphrase Patrick Henry, Will we be better able to resist when we are completely disarmed?
That's quite the hyperbole. Leaving aside the fact that there are an estimated 80 million gun owners in the country and ignoring the recent Heller decision, the trend in the states over the past decade has been more protection of gun rights, not less. Hence we see the spread of things like the castle doctrine and concealed carry.

Since the broader societal trend is in favor of gun rights, I'm in favor of letting things take their course, rather than jumping ahead of both popular opinion and what the courts are willing to accept at this time.

I'm actually inclined to agree with you on the militia argument. I just think that your timing is way off.

Quote:
Originally Posted by RichardAHamblen View Post
I am trying to demonstrate that the Court not only ignores the Constitution, it ignores its own precedents. We have become a nation of men and not laws. If my case serves to demonstrate this to the public, then the struggle will not have been completely in vain. I have been fighting this case since April of 2004. I have made a run at the Court already. I am proceeding now on a writ of habeas corpus. My case was at the Court at the very same time as Heller. You can see its footprints in the remarks from Solicitor General Clements in the oral arguments for Heller. Read Miller again. Heller is in conflict with Miller. And Scalia's remarks on Miller are mere dicta, because as Roberts says in the Heller exchange with Clements, "this case is not about machine guns." (and neither was Miller, by the way). The issue is not settled. Miller does not say what it has been alleged to say. But then again, you can't win an argument with a liar.

Guns are only the occasion for this fight. The real struggle is over the Constitution, and the utter contempt in which the Federal Government holds it.

The most recent pleadings are filed at http://www.esnips.com/web/HamblenvsUnitedStates

I look forward to your comments.
I can't help but notice that there are a lot of people who are very critical of Heller and Alan Gura and yet they have much less to show for their own efforts. The Heller opinion establishes that the 2nd Amendment covers an individual right to bear arms and came close to establishing it as a fundamental right subject to strict scrutiny (it ruled out the rational basis test). Pardon me for asking, but what have you done for the 2nd Amendment?

When you said that you intend to demonstrate that the Court ignores the Constitution, I can only ask in response: To what end?

Plenty of legal scholars have demonstrated that the Court ignores the Constitution from Wickard v. Filburn to Roe v. Wade. Regrettably, that has not resulted in overturning those decisions. What makes you think that you can succeed where all those legal scholars and popular movements failed?

It would be nice to think that the vast majority of the American people are as passionate about the Constitution as you are and that once the scales fall from their eyes, they will rise up and force the federal government back into its place. The problem about this romantic vision is that it is not true. Most Americans have practical concerns like the crime rate or the state of the economy. Arguments about the Constitution sound ephemeral, almost unreal to them.

If you're suggesting that the DoJ's brief in Heller is motivated in part by your case, then you have done the gun rights movement a disservice. The DoJ brief repeatedly raised the specter of machine guns, forcing even justices friendly to gun rights to try to mitigate that concern.

I'm sorry if my response sounds very critical of you. I can only hope that you will remember that I'm inclined to agree with your militia argument. I also can't help but respect the courage of a man who believes so much in the Constitution that he is willing to test the law by going to prison for it. It seems to me that you're not the case of the violent felon who pleads the 2nd Amendment as a last ditch argument, abusing the Constitution as a get-out-of jail-free card. Rather, you seem engaged in a kind of peaceful, conscientious resistance against the authorities.

I can only ask you to reconsider your timing. Whereas the liberals on the Court have made clear their implacable opposition, there have been some resistance even among more conservative jurists (Judges Posner and Wilkinson immediately come to mind). I'm concerned that in light of such opposition, one or more from the Heller majority may decide to use your case to narrow the reach of the 2nd Amendment (either by applying only intermediate scrutiny or by carving out a special machine gun loop hole where the rational basis test applies) in order to demonstrate their moderation. I'm concerned that your case will negatively affect the pending incorporation cases from Chicago and the follow-up cases on the level of scrutiny and the definition of "arms."
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