US Supreme Court going to decide on 2nd Amendment


ishi

New member
This probably will end up being somewhat anti-climactic. The supreme court will try to make their ruling as narrow as possible. If DC is ruled against, we won't be getting "You know what, the 2nd amendment really does apply. Throw out the NFA!".

It will be interesting to see though.

Here's hoping for the best.
 

doublenutz

New member
This probably will end up being somewhat anti-climactic. The supreme court will try to make their ruling as narrow as possible. If DC is ruled against, we won't be getting "You know what, the 2nd amendment really does apply. Throw out the NFA!".

It will be interesting to see though.

Here's hoping for the best.

If they overturn the lower court however, that will set a precedent that may make things very diffucult for gun owners in some states.

D.C. gun law challenged
Washington, D.C., has urged that the justices uphold the city's ban on handguns — one of the strictest gun laws in the nation. City officials said the restriction is essential to fighting crime.
"What we ban is a weapon that is uniquely dangerous, that is easily concealed and that is disproportionately used in crime," said Linda Singer, Attorney General for the District of Columbia.

In a surprising ruling, a federal appeals court earlier this year declared the ban a violation of the Second Amendment right to keep and bear arms. The law was challenged by a Washington, D.C., resident who claimed the Constitution gives him a right to own a handgun for self-defense.
"I had a house broken into once, and things happen," said Rich Heller, the man who filed the lawsuit. "You want to protect yourself if you need to."
Though the Supreme Court discussed the Second Amendment in a 1939 gun case, the court has never definitively ruled on if the amendment protects an individual's right to own a gun or if it only protects a right of state militias to resist being disarmed by the national government.
 

ElZorro

New member
Major error by original author in this quote

To wit:

"Though the Supreme Court discussed the Second Amendment in a 1939 gun case, the court has never definitively ruled on if the amendment protects an individual's right to own a gun or if it only protects a right of state militias to resist being disarmed by the national government."

This was obviously written by one who has never actually read "Miller" and sounds like some of the crapola espoused by the Bradys and their ilk.

The justices in the Miller case referenced here did, indeed, decide that the Second Amendment applies to individuals and uses many quotes and references to amplify and prove this point. The onlly sticking point (for me) was that they specified that the weapons to be kept and born would have to be of a type in common military use at the time.

(Of course, today that would mean your problem is where to store your 800 rpm Gatling and whether you could afford the other fully automatic weapons "in common military use".)

The deciding question was whether the shotgun in question, with a barrel shorter than required by NFA, was in common military use at the time.

Had the defendants had representation before the Supremes (one had died and the other was conspicuously absent of representation); it could easily have been proved that the Winchester model of 1897 was issued by the government to our troops in WWI with barrels considerably shorter than the requisite 18 inches. Some were reportedly hacked off even more by the troops in the field.

Affectionately called the "trench sweeper", it saw use, along with the Model 12 (also issued with a short barrel), through WWII. I've handled and shot one of the Model 12s brought back from the Pacific theater by an uncle and there's anecdotal evidence that they were still in use in VietNam, though I have no cites to prove this.

Let's hope the Supremes, if they decide to hear this case, will go back to Miller for their guidance.

For those who have not read the complete Miller, I offer the following URL for your perusal and edification.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=307&invol=174

Y'r ovsv't s'vt;
ElZorro
 
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HK4U

New member
I am afraid anytime any thing goes to the Supreme Court. Thomas Jefferson was right about them.
 

doublenutz

New member
To wit:

"Though the Supreme Court discussed the Second Amendment in a 1939 gun case, the court has never definitively ruled on if the amendment protects an individual's right to own a gun or if it only protects a right of state militias to resist being disarmed by the national government."

This was obviously writter by one who has never actually read "Miller" and sounds like some of the crapola espoused by the Bradys and their ilk.

ElZorro

I have actually read US vs Miller during my undergrad years as a political science student in college... my question is however, do you have anything to offer beside being a spoiler and rudely questioning the credentials or critiquing the information that is supplied in a topic of all who post in any thread you participate in. The point of the article was that the Supreme Court has NEVER DEFINITIVELY RULED ON ANY 2A CASE brought before it since 1939 (as Ishi correctly implied- the SC ruling will likely be very anti-climactic). If you can find one or more cases that may prove that case or statement wrong please educate us about one or more of them here. I, for one, would like to see your valuable and intellectual contributions, in the stead of dashing the credibility of people who post and the information we collectively gather and post here.

I think we can all agree that you may have a wealth of information that we want to hear but for the sake of Christ... do you have to be so incredibly rude to us?
 
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ElZorro

New member
Doublenutz, please read my post in context

The criticism was of the original MSNBC article, not any poster here, and that is what I quoted.

And the criticism hinged on the part of the quote which stated that the SOCUS had not decided whether 2A was an individual or collective right.

If you'll carefully peruse Miller, you'll see that that decision was, indeed, made; although you're correct in that they did not officially "rule" on that point, inasmuch as that point was not specifically within their jurisprudence, not having been brought up in the briefs from the lower courts with which they were provided.

Pretty please, if you're going to bash me for negativity (or anything, for that matter) quote me in context.

I did not and have not intended to bash or denigrate any poster here but, as I said, the criticism was of the author of the original article quoted here, and not of the poster who provided it.

Incidentally, your post, in addition to misreading my comments out of context, was anything but "gentle correction". Could even be called "rude", to use your terminology.

Humbly,
ELZorro
 
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doublenutz

New member
The criticism was of the original MSNBC article, not any poster here, and that is what I quoted.


I did not and have not intended to bash or denigrate any poster here but, as I said, the criticism was of the author of the original article quoted here, and not of the poster who provided it.

Humbly,
ELZorro


<Hand Shaking> Thank you for the clarification... my most sincere apologies for misinterpreting your posts, shortcoming of electronic communications media, I guess.

I neglected to mention that your posts are informative and I read them closely. If I was not interested in what you had to say I would not have posted my concerns. I am very much looking forward to your future contributions here they definately have a "STOP, and pay attention here" impact.:)
 

ElZorro

New member
Doublenutz. Thanks for the compliment and especially

for the "handshake".

I appreciate the camaraderie and sincerity of your reply.

Thanks again,
ElZorro
 

Bohemian

New member
Follow the case...
Link Removed

The Team...
http://www.dcguncase.com/blog/

D.C.’s defense of its gun ban is wrong, but the Supreme Court still needs to rule.
http://dcguncase.com/blog/wp-content/uploads/2007/09/levy_legal-times_9-24-071.pdf

The problem...
Many federal courts rely on U.S. v. Miller in which the Supreme Court remanded a case back to the District Court that had overturned the National Firearms Act of 1934. The District Court agreed with Miller that the NFA violated the 2nd Amendment. Justice McReynolds delivered the opinion of the Supreme Court that the weapon in question, a shotgun with a barrel of less than 18", was not known to the court to have use in the militia & therefore the NFA didn't conflict with the 2nd Amendment...
http://publicola.mu.nu/archives/200...e_millers_tale_problems_with_us_v_miller.html

Among legal scholars, it is undisputed that the Supreme Court has said almost nothing about the Second Amendment. This article suggests that the Court has not been so silent as the conventional wisdom suggests. While the meaning of the Supreme Court's leading Second Amendment case, the 1939 United States v. Miller decision remains hotly disputed, the dispute about whether the Second Amendment guarantees an individual right can be pretty well settled by looking at the thirty-five other Supreme Court cases which quote, cite, or discuss the Second Amendment. These cases suggest that the Justices of the Supreme Court do now and usually have regarded the Second Amendment "right of the people to keep and bear arms" as an individual right, rather than as a right of state governments...

Link Removed

http://www.project21.org/P21NVBorelliGuns90507.html

THE SUPREME COURT'S THIRTY-FIVE OTHER GUN CASES: WHAT THE SUPREME COURT HAS SAID ABOUT THE SECOND AMENDMENT
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Keep It with the People
Link Removed

Miller lacks clarity and is why Parker and or Heller is pivotal...

The right of the people to keep and bear arms shall not be infringed!
regardless of type, class of weapon or perceived purpose...

Read the unabridged 2nd amendment...
Link Removed
 

Bohemian

New member
The Second Amendment Foundation (SAF) is making some significant and breathtaking progress in the field of Second Amendment jurisprudence. SAF, together with Virginia attorney Alan Gura, has come up with an exquisite legal strategy to get the question of the Second Amendment as a fundamental, individual right squarely before the Supreme Court of the United States (SCOTUS) in the next two years.

While it is shocking to most people, the SCOTUS has never really had a case squarely dealing with the Second Amendment as an individual right, and has never reached the issue of whether the Second Amendment even applies to states. (Remember, prior to the 14th Amendment, the Bill of Rights as a whole did not necessarily restrict state action.) The SAF strategy has included filing very “limited in focus” lawsuits in 2 different federal districts, the Dearth case in Ohio’s Southern District and the Hodgkins case in Texas’ Northern District, as well as the Parker case in the D.C. District. Why so many different, and costly, lawsuits to answer one question?

Simple - two different strategies...

The importance of the Parker (D.C. gun ban) case:
http://www.buckeyefirearms.org/modules.php?name=News&file=article&sid=3591
 
Here Is Something From My Archives About US v. Miller

US v Miller

Here is the main line of reasoning that shows what the Court actually said in U.S. v. Miller(1939)... and how it doesn't mean diddly.

Misdirection

Look at what the Court said here: "IN THE ABSENCE OF ANY EVIDENCE TENDING TO SHOW THAT POSSESSION OR USE OF A "SHOTGUN HAVING A BARREL OF LESS THAN EIGHTEEN INCHES IN LENGTH" AT THIS TIME HAS SOME REASONABLE RELATIONSHIP TO THE PRESERVATION OR EFFICIENCY OF A WELL REGULATED MILITIA, WE CANNOT SAY THAT THE SECOND AMENDMENT GUARANTEES THE RIGHT TO KEEP AND BEAR SUCH AN INSTRUMENT." Referring to the text I put in bold, the Court said that they could not come to a conclusion without any evidence. The Court did not say that the "SHOTGUN HAVING A BARREL OF LESS THAN EIGHTEEN INCHES IN LENGTH" did not have "...SOME REASONABLE RELATIONSHIP TO THE PRESERVATION OR EFFICIENCY OF A WELL REGULATED MILITIA,..." If the Court had come to the conclusion that the sawed-off shotgun WASN'T a viable weapon for use in the militia, it would have said so. It didn't say so. It would have needed the same evidence to show it was as it would have needed to show it wasn't!

Further in that same paragraph the Court said, "CERTAINLY IT IS NOT WITHIN JUDICIAL NOTICE THAT THIS WEAPON IS ANY PART OF THE ORDINARY MILITARY EQUIPMENT OR THAT ITS USE COULD CONTRIBUTE TO THE COMMON DEFENSE." Judicial notice is: "n. the authority of a judge to accept as facts certain matters which are of common knowledge from sources which guarantee accuracy or are a matter of official record, without the need for evidence establishing the fact. Examples of matters given judicial notice are public and court records, tides, times of sunset and sunrise, government rainfall and temperature records, known historic events or the fact that ice melts in the sun." Here again, the Court is saying they don't know as a matter of record, don't have reference to any common knowledge, don't have a guaranteed source to refer to the fact in question, and can't say off the top of their head whether or not the sawed-off shotgun fit in the militia and, therefore, would require evidence to make the call.


Pretense and Amending the Constitution by Rote

The Court, without proper amendment, amended the the Constitution on its own by interjecting a requirement not present in the Constitution, nor has power been granted to Congress to legislate any such requirement - "CERTAINLY IT IS NOT WITHIN JUDICIAL NOTICE THAT THIS WEAPON IS ANY PART OF THE ORDINARY MILITARY EQUIPMENT OR THAT ITS USE COULD CONTRIBUTE TO THE COMMON DEFENSE." - and any such infringement is expressly forbidden by Second Amendment that a weapon must be shown to have a viable place in the militia. The Court simply wrote their decision as if such a requirement existed. The Court even admitted to interpreting the Constitution. The Court cited Article I, Section 8, Clause (16): THE CONSTITUTION AS ORIGINALLY ADOPTED GRANTED TO THE CONGRESS POWER "TO PROVIDE FOR CALLING FORTH THE MILITIA TO EXECUTE THE LAWS OF THE UNION, SUPPRESS INSURRECTIONS AND REPEL INVASIONS; TO PROVIDE FOR ORGANIZING, ARMING, AND DISCIPLINING, THE MILITIA, AND FOR GOVERNING SUCH PART OF THEM AS MAY BE EMPLOYED IN THE SERVICE OF THE UNITED STATES, RESERVING TO THE STATES RESPECTIVELY, THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS." Then the Court said: "WITH OBVIOUS PURPOSE TO ASSURE THE CONTINUATION AND RENDER POSSIBLE THE EFFECTIVENESS OF SUCH FORCES THE DECLARATION AND GUARANTEE OF THE SECOND AMENDMENT WERE MADE. IT MUST BE INTERPRETED AND APPLIED WITH THAT END IN VIEW." How they pulled any arms qualification requirements out of that, I cannot fathom. Even if that requirement was in Article I, Section 8, Clause (16), it would have been vacated by the later dated(and therefore superseded by) the Second Amendment!!

Word-smithing

The Court was quite sneaky and devious in its wording with this non-ruling. Look at this: The Court said, "WE ARE UNABLE TO ACCEPT THE CONCLUSION OF THE COURT BELOW AND THE CHALLENGED JUDGMENT MUST BE REVERSED. THE CAUSE WILL BE REMANDED FOR FURTHER PROCEEDINGS." So, let's look at "WE ARE UNABLE TO ACCEPT THE CONCLUSION OF THE COURT BELOW ..." What does that tell you? It tells you that the Court didn't say that the conclusion of the court below was wrong, the Court said because there was no evidence presented, it cannot accept the conclusion. They said in the beginning that "In the absence of any evidence....we cannot say...". Then the Court continued with, "..AND THE CHALLENGED JUDGMENT MUST BE REVERSED. When ever the Court reverses a lower court ruling, it does not include anything like "...must be...". The Court did not reverse or vacate the judgment of the lower court. The Court didn't say the judgment IS reversed or vacated. "THE CAUSE WILL BE REMANDED FOR FURTHER PROCEEDINGS." The Court instructed the lower court to proceed further on the case, presumably, to have the needed evidence presented to support the lower court's conclusion that the NFA is unconstitutional by showing that the sawed-off shotgun is a viable weapon for the militia. Sadly, Miller had been murdered before the case had been concluded, and Layton(Miller's co-defendant) accepted a plea. There was no one left to continue the case. Don't forget, however, that this, for all intents and purposes, is moot in the light of the Second Amendment.



Misdirection

The Court's ducking of one aspect of "judicial notice" is also despicable. That "judicial notice" is the obvious capability of a sawed-off shotgun to deliver a lethal dose of shot. I would equate what a member of the militia can do with a sawed-off shotgun to a similar level of common knowledge with the common knowledge that if you place a chunk of ice in the sun, it will melt. Again, this is moot in the light of the prohibition placed upon all government to infringe upon the Right to Keep and Bear Arms in the Second Amendment.

More "misdirection"

It is not within the purview of the Court to up and say, "HEY! You are misinterpreting/misunderstanding what was said in this case!" Not until some other case is brought back up to the Court on appeal can the Court address this again. The Court did not uphold the NFA, but it didn't shoot it down, either. This case, US v. Miller is undecided to this very day. All the citing of US v. Miller as sealing the notion that Congress may infringe the RKBA if it has to do with interstate commerce is just as bogus. As I pointed out for the "militia" clause, the Second Amendment was ratified after the Commerce Clause, and the prohibition on Congress to infringe upon the RKBA in the Second Amendment would supersede any supposed power of Congress to infringe the right that might be misconstrued from the Commerce Clause.

This from the Court in US v Miller TAKES THE CAKE! "MOST IF NOT ALL OF THE STATES HAVE ADOPTED PROVISIONS TOUCHING THE RIGHT TO KEEP AND BEAR ARMS. DIFFERENCES IN THE LANGUAGE EMPLOYED IN THESE HAVE NATURALLY LED TO SOMEWHAT VARIANT CONCLUSIONS CONCERNING THE SCOPE OF THE RIGHT GUARANTEED. BUT NONE OF THEM SEEM TO AFFORD ANY MATERIAL SUPPORT FOR THE CHALLENGED RULING OF THE COURT BELOW." Seems they conveniently "forgot" that the Second Amendment is a part of the Constitution and that the Second Amendment is, therefore, part of the Supreme Law of the Land, and "...anything in the constitution or laws of any state to the contrary (is) notwithstanding." It doesn't matter WHAT any state law or constitution has to say about the RKBA. THE COURT HAD(HAS) ALL IT NEEDED IN THE SECOND AMENDMENT! What the Court said here is no different than what some are doing now - looking to foreign law to make their rulings!

Hope this helps.

Woody

Look at your rights and freedoms as what would be required to survive and be free as if there were no government. Governments come and go, but your rights live on. If you wish to survive government, you must protect with jealous resolve all the powers that come with your rights - especially with the Right to Keep and Bear Arms. Without the power of those arms, you will perish with that government - or at its hand. B.E. Wood
 

doublenutz

New member
Follow the case...THE SUPREME COURT'S THIRTY-FIVE OTHER GUN CASES: WHAT THE SUPREME COURT HAS SAID ABOUT THE SECOND AMENDMENT
Link Removed

Bohemian Bro... this one is a really good, scratch that, EXCELLENT read!

I actually have now book marked it!
 
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doublenutz

New member
US v Miller

Here is the main line of reasoning that shows what the Court actually said in U.S. v. Miller(1939)... and how it doesn't mean diddly.


Word-smithing

The Court was quite sneaky and devious in its wording with this non-ruling. Look at this: The Court said, "WE ARE UNABLE TO ACCEPT THE CONCLUSION OF THE COURT BELOW AND THE CHALLENGED JUDGMENT MUST BE REVERSED. THE CAUSE WILL BE REMANDED FOR FURTHER PROCEEDINGS." So, let's look at "WE ARE UNABLE TO ACCEPT THE CONCLUSION OF THE COURT BELOW ..." What does that tell you? It tells you that the Court didn't say that the conclusion of the court below was wrong, the Court said because there was no evidence presented, it cannot accept the conclusion. They said in the beginning that "In the absence of any evidence....we cannot say...". Then the Court continued with, "..AND THE CHALLENGED JUDGMENT MUST BE REVERSED. When ever the Court reverses a lower court ruling, it does not include anything like "...must be...". The Court did not reverse or vacate the judgment of the lower court. The Court didn't say the judgment IS reversed or vacated. "THE CAUSE WILL BE REMANDED FOR FURTHER PROCEEDINGS." The Court instructed the lower court to proceed further on the case, presumably, to have the needed evidence presented to support the lower court's conclusion that the NFA is unconstitutional by showing that the sawed-off shotgun is a viable weapon for the militia. Sadly, Miller had been murdered before the case had been concluded, and Layton(Miller's co-defendant) accepted a plea. There was no one left to continue the case. Don't forget, however, that this, for all intents and purposes, is moot in the light of the Second Amendment.


Interesting position. However, I am curious- Are you presenting this as THEORY or FACT?

If factual- is it based on your interpretive experiences in the environment or an academic prowess.
 

ElZorro

New member
Here we go again; Miller ad infinitum

Woody, ole pal, you're mostly right, except for "The Court did not reverse or vacate the judgment of the lower court."

The final words of the Miller decision are; "Reversed and remanded." Of course, this is not a complete nullification of the lower court's decision and applies only to the lower court’s judgment that the 1934 NFA was unconstitutional inasmuch as it was “an attempt [by the United States] to usurp police power reserved to the States”, which was the focus of the questioned judgment and the government’s challenge. The other part of it was that the NFA was a violation of the Second Amendment’s guarantees.

The court's opening list of cite's was intended to show by precedent that it was OK for the U.S. to "usurp---police powers"; previous errors supporting the current error.

The cite; “Aymette v. State of Tennessee” is essentially a cite of the relevant provision in the Tennessee State Constitution, to wit: "That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime."

They could as easily have cited the Pennsylvania State Constitution’s equivalent provision: "The right of the citizens to bear arms in defense of themselves and the State shall not be questioned”; except that they apparently didn’t have a convenient court case to cite here.

Notwithstanding that citing state case law in support of a nationally-applicable decision is clearly in error, the two state constitutions cited above are obviously in opposition as to the individual vs. collective right and whether the state may enact laws infringing the Second Amendment.

My earlier post probably mistakenly implied that had Miller and Clayton been able to show that the short-barreled shotgun was "in common military use" they would have been home free. Such is clearly not the case, since the 1934 NFA was not nullified and they had failed to comply with its provisions.

All things considered, the Court clearly vacated its duties, possibly because Miller was dead, Clayton had copped a plea, some attorney's egregious neglect to answer the subpoena would not have to be addressed and the case could be improperly concluded without holding over.

As an aside, the Court did provide guidance to refute the attempt to equate “the Militia” to the National Guard. The court stated; “The Militia which the States were expected to maintain and train is set in contrast with Troops which they [307 U.S. 174, 179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia- civilians primarily, soldiers on occasion.”

Clearly, the National Guards of the states are controlled, funded and a part of the “standing army”, somewhat analogous to what was then referred to as the “Select Militia”.

FWIW,
ElZorro
 
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ElZoro,

I've looked up Miller in the Government printing office; in Kopel's, Halbrook's, and Korwin's book Supreme Court Gun Cases; Cornell University and and elsewhere and only found one instance where "Reversed and Remanded" has been added at the end and that was at findlaw.com. "Reversed and Remanded" does not appear in any other reprint of US v. Miller. I think Findlaw.Com added that themselves.

In all those other instances, the reprints all end with:

We are unable to accept the conclusion of the court below, and the challenged judgment must be reversed. The cause will be remanded for further proceedings.

Another thing I find interesting: It says the "cause" will be remanded for further proceedings, not the "case". I cannot find this verbiage in any other case after a random search of about 50 cases.

And there is this: "we are unable to accept...". Not "we do not accept", but unable as in, "In the absence of any evidence..., we cannot say...".

In just now doing a cursory search of about ten remanded cases, I find the verbiage in this passage from US v. Miller is unique and without precedent. Same for reversed cases. The Court generally makes it undeniably clear that a reversed and/or remanded case is reversed and/or remanded, and that it is a case and not a cause.

US v. Miller is a snow job.


doublenutz said:
Interesting position. However, I am curious- Are you presenting this as THEORY or FACT?

If factual- is it based on your interpretive experiences in the environment or an academic prowess.

I see it clearly as fact. Words mean things - just as numbers have value and you can add, subtract, multiply and divide them. I just do the math.

Woody

This crap will continue until the Court stops allowing itself to be misused as a legislative branch of government, or as an alternative to amending the Constitution. B.E. Wood
 

doublenutz

New member
I see it clearly as fact. Words mean things - just as numbers have value and you can add, subtract, multiply and divide them. I just do the math.

Woody


OK, I can appreciate that line of reasoning and you make a great deal of sense to me. The reason I ask is that should I ever plagiarize your argument in the future (I hope you don't mind that I may ;)), I just want to be able to recite how the points were arrive at.:)
 

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