[yellowfin]

Anyone got a crystal ball and can tell me how far SCOTUS would be willing to go in sticking up for our side versus anti carry cities, venues, and social attitudes?

[7x57]

Originally Posted by chuckles48

I presumed that he was prepared, but he gave short shrift to DP in his brief, and spent most of it on P&I. Got blown away for his troubles, BUT at the same time he seems to have shifted viewpoints such that DP incorporation is pretty much regarded as "duh, well of COURSE."

That's not a shift in viewpoint--that was always the argument. I think the strategy was based on the idea that DP was almost a given, so he concentrated on going for the harder prize.

Whether or not that put incorporation by any means at risk is a judgement call.

Incorporation is incorporation. You can't have a ranked, partial version of incorporation. Like pregnancy, you are either are, or you aren't.

Except that much of the questioning was about whether that was true. We have at least one justice who seemed convinced that partial incorporation is not only possible but the best avenue of escape from the (to him) hell of obeying the Constitution.

7x57

[7x57]

Originally Posted by glbtrottr

Nothing would make my heart sing with more glee than the Supremes "opening up the floodgates" and truly reversing over a hundred years of Slaughterhouse so that American Sheriff Elections aren't bankrolled by selling away our 2nd Amendment guarantees and decided by the people of the Democratic party.

Even if they don't overturn Slaughterhouse, they would still be overturning a century of precedent lying about the 2A and what it means. Purely on guns, that's as good as P&I.

7x57

[dixieD]

As I mentioned before I was disappointed by the discussion of the militia phrase, and the lack of recognition of what constituted the militia in 1791. In addition, with all of this talk of self defense, which of course is important, I was dismayed by the lack of recognition of the being necessary for a FREE STATE phrase, which has implications beyond that of basic self defense. To me it is this phrase that gives teeth to the 2A and the words in in the Declaration.

I really hope that this goes the route of P or I, but will be happy if it is decided on Due Process.

[The Director]

I think the whole free state thing was avoided since I think the Justices would see that as an affront to their power. SCOTUS has been responsible for many wrongs, and in a truly free state, whose freedom hinged upon an angry armed populace, I think they would have (or should have) been replaced many times in history, by force if necessary.

I think the attorneys did the right thing in not barking up the free state tree.

[CABilly]

Originally Posted by dixieD

As I mentioned before I was disappointed by the discussion of the militia phrase, and the lack of recognition of what constituted the militia in 1791. In addition, with all of this talk of self defense, which of course is important, I was dismayed by the lack of recognition of the being necessary for a FREE STATE phrase, which has implications beyond that of basic self defense. To me it is this phrase that gives teeth to the 2A and the words in in the Declaration.

I really hope that this goes the route of P or I, but will be happy if it is decided on Due Process.

A free state will not attempt to deprive people of life, liberty or property without due process of law. If such an event does occur, the Second allows the people to defend themselves against such an encroachment.

[7x57]

Originally Posted by dixieD

As I mentioned before I was disappointed by the discussion of the militia phrase, and the lack of recognition of what constituted the militia in 1791.

That may actually be a good thing. Talking about the larger purposes of the 2A and the actual meaning of militia leads directly to questioning the Constitutionality of the NFA, and if things go down that road Justice Kennedy will vote for anything to avoid it. We really want to stay far, far away from that issue.

Keep in mind that getting recognition of a simple personal self-defense is a *tremendous* win compared to where we've been for a century, and we've only started on that. We need to take all the low-hanging fruit we can get first, and that means working the self-defense angle for all its worth.

As Gene likes to say (more or less), the dismantling of segregation started with "I have the right to vote and am happy to pay the poll tax" long before it attacked the poll tax itself, let alone miscegenation laws.

In addition, with all of this talk of self defense, which of course is important, I was dismayed by the lack of recognition of the being necessary for a FREE STATE phrase, which has implications beyond that of basic self defense. To me it is this phrase that gives teeth to the 2A and the words in in the Declaration.

Remember the story of the young bull and the old bull. We don't want to talk about those teeth right now. Really.

7x57

[kcbrown]

Originally Posted by 7x57

Remember the story of the young bull and the old bull. We don't want to talk about those teeth right now. Really.

The young bull is likely to have been dead for several hundred years at a minimum in the amount of time it would take them to walk down to where the cows are...

The process of restoring freedom through any means other than violent revolution takes far longer than does the loss of that freedom.


With respect to getting to that point, there is no difference between talking about those teeth and not talking about them. The only reason to not talk about them is to make it possible to move forward at least some where you otherwise would not move forward at all.

[7x57]

Originally Posted by kcbrown

The young bull is likely to have been dead for several hundred years at a minimum in the amount of time it would take them to walk down to where the cows are...

I think there is a limit on how long it's useful to wait on many things, so in most cases I think you exaggerate.

Remember that there is in some sense a limit imposed by the fact that just about every issue will eventually be decided in US v. Crackhead if we don't eventually move. It won't take several hundred years for some dirtbag or the other to have attempted a 2A defense on just about everything.

The process of restoring freedom through any means other than violent revolution takes far longer than does the loss of that freedom.

And yet we are morally obliged to take that approach.

With respect to getting to that point, there is no difference between talking about those teeth and not talking about them. The only reason to not talk about them is to make it possible to move forward at least some where you otherwise would not move forward at all.

Those two sentences seem to contradict, but I think I agree with the latter.

7x57

[dixieD]

Originally Posted by CABilly

A free state will not attempt to deprive people of life, liberty or property without due process of law. If such an event does occur, the Second allows the people to defend themselves against such an encroachment.

This was the point that I was making.

I fully understand the one step at a time approach, and agree that it is the best course of action. It just rubs me the wrong way that in the 2A there are three phrases, and the first gets continually misinterpreted, the second gets ignored, and the third, well until recently gets ignored. It would be so much simpler if the 2A simply read the Right of the People to Keep and Bear Arms Shall Not be Infringed. Anyway thanks for the insightful comments on my post.

[kcbrown]

Originally Posted by 7x57

I think there is a limit on how long it's useful to wait on many things, so in most cases I think you exaggerate.

Note that I'm referring here to the bit that you quoted originally, i.e. the reference to the 2nd Amendment having as part of its reason for existence the empowerment of the citizenry to overthrow the government if it stops responding to the will of the people.

With respect to that purpose of the 2nd Amendment being formally recognized by the judiciary, I don't think I exaggerate terribly much, if indeed I exaggerate at all.

Remember that there is in some sense a limit imposed by the fact that just about every issue will eventually be decided in US v. Crackhead if we don't eventually move. It won't take several hundred years for some dirtbag or the other to have attempted a 2A defense on just about everything.

If you can imagine a case where the "last check on government power" purpose of the 2nd Amendment is tested in court, I'd like to hear your thoughts on it. I don't seem to be able to think of a plausible way such a case could come about, but that could easily be because I lack imagination when I haven't had much sleep.

And yet we are morally obliged to take that approach.

Indeed. And I wouldn't have it any other way. Violent revolution is a horrible thing, and as it happens also very uncertain. Historically, it has rarely yielded a government significantly better than the one that preceded it.

Those two sentences seem to contradict, but I think I agree with the latter.

They're not contradictory. Whether the "last check against the government" property of the 2nd Amendment is intentionally brought up before the courts or not, the end result will be the same: it will be ignored. This will remain the case for far longer than anyone we know will be alive. Hence, with respect to that aspect of the 2nd Amendment, it matters not at all whether or not the "teeth" of the 2nd Amendment are discussed. What does matter is whether or not raising that aspect of it would endanger the chances of moving forwards on some other aspect of it. The presumption (which I think is likely to be correct) is that it almost certainly would endanger such an endeavor.

[Hunt]

do they need slaughterhouse to remain intact to further/ maintain the premise of, "compelling State / Gov't interest" ? Or if Slaughterhouse was overturned would it open the door for challenges to court decisions based upon "compelling State / Gov't interest"

[7x57]

Originally Posted by kcbrown

Note that I'm referring here to the bit that you quoted originally, i.e. the reference to the 2nd Amendment having as part of its reason for existence the empowerment of the citizenry to overthrow the government if it stops responding to the will of the people.

With respect to that purpose of the 2nd Amendment being formally recognized by the judiciary, I don't think I exaggerate terribly much, if indeed I exaggerate at all.

How about a chief justice of a US circuit court of appeals? Would that count as recognition? I suppose not unless in an opinion?

Hmm. Didn't the original 3-judge Nordyke opinion mention that purpose as well, or do I misremember?

If you can imagine a case where the "last check on government power" purpose of the 2nd Amendment is tested in court, I'd like to hear your thoughts on it. I don't seem to be able to think of a plausible way such a case could come about, but that could easily be because I lack imagination when I haven't had much sleep.

Oh, sure. Some idiot hiding out in Northern Idaho gets pinched for not paying taxes because he believes them unlawful, and the subsequent investigation finds his stash of NFA no-noes and other "color" (say he's been abusing his daughter, is an Aryan supremacist, regularly kicks his dog, and jaywalks). His defense to the NFA charges is that he has a Constitutional right to his oh-so-scary assault rifles as a check on government power.

Or worse, he uses his no-no weapons to stand off the feds for weeks first, so guns get maximum negative exposure and the trial takes place in the context of a post-standoff circus.

Or did you mean a *good* case where the purpose can be tested in court?

Indeed. And I wouldn't have it any other way. Violent revolution is a horrible thing, and as it happens also very uncertain. Historically, it has rarely yielded a government significantly better than the one that preceded it.

Something I occasionally fear our more fervent supporters forget.

In the list of 2A purposes I occasionally post, I think I've been leaving out the paradoxical (to some) purpose of minimizing the probability of revolution. This confuses some greatly, but the fact is the idea was first of all to arm what amounted to the middle class (leftists shiver at this point) because they actually have the *most* to lose in a revolution. They own assets worth having, but not enough to move it to safe havens because most of their wealth is in their home, their business, their farm, etc. They have families, but can't afford to send them somewhere else for safety.

The rich are far more likely to push the population over the edge, and the really poor are far more likely to rebel foolishly than the small businessman, the farmer, the homeowner are to take up arms. When *those* guys are willing to risk everything, then you know that the final, last, unavoidable limit really has been reached.

I believe The Federalist argued that France had a violent revolution while Britain did not because in England the crown knew all it's military assets were in the navy and the well-armed population had the power to depose the government if it came to it. Historically valid or not, I believe that was their thinking.

with respect to that aspect of the 2nd Amendment, it matters not at all whether or not the "teeth" of the 2nd Amendment are discussed. What does matter is whether or not raising that aspect of it would endanger the chances of moving forwards on some other aspect of it. The presumption (which I think is likely to be correct) is that it almost certainly would endanger such an endeavor.

I find that wording a bit confusing, but I think I agree with it. We have to go after the low-hanging fruit. We also have to expand the franchise, and individual self-defense is something the public is more easily persuaded of. We really can't talk about the harder truths of the 2A and why they are not anarchist until we rebuild a culture able to face them rationally.

It's possible we won't be able to manage it.

7x57

[kcbrown]

Originally Posted by 7x57

I find that wording a bit confusing, but I think I agree with it.

To put it simply: regardless of whether or not you place the argument for "last check" aspect of the 2nd Amendment in front of the courts, you'll never get them to recognize it except as something to avoid. However, if you are arguing a case in an attempt to advance some other aspect of 2A, you can only damage your cause by putting the "last check" argument in front of the court.

And, therefore, there is no upside to arguing the "last check" aspect of 2A in front of the court, and considerable downside.

I should add that this is why I don't believe my quip about us seeing that aspect of 2A formally recognized and validated by the courts for hundreds of years was much of an exaggeration.

We have to go after the low-hanging fruit. We also have to expand the franchise, and individual self-defense is something the public is more easily persuaded of. We really can't talk about the harder truths of the 2A and why they are not anarchist until we rebuild a culture able to face them rationally.

I think the harder truths of the 2A are so high up the tree that we will never realistically be able to climb up there.

I mean, what's the upside for the court system with respect to that? All they'd be doing is ostensibly increasing the risk to their own power. After all, they are an integral part of the very government against which 2A is a final check.

You'd have to have a majority of justices in the Supreme Court whose concern for their own power and control didn't exist at all and who were solely concerned with interpreting the Constitution with an understanding of the historical reasons for it having been written the way it was.

Not gonna happen.