D.C. Circuit Upholds Second Amendment
- Thread starter swman
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Got the prefix screwed up. Shudabin "postdates" Don't you have to know the thought process of the "people" you are trying to overcome?
Let's breakdown their thought process:
Militia= able bodied men 17 to 45ish
They believe the National Guard is what the militia "morphed" into.
Why? Because the National Guard is a Volunteer militia.
A well regulated volunteer miltia comprised of individuals who have everyday lives. They are called upon in times of need.
Isn't that what the second amendment says? The only difference between then and now is that it is on a volunteer basis........
**I am not endorsing the above comments
Let's breakdown their thought process:
Militia= able bodied men 17 to 45ish
They believe the National Guard is what the militia "morphed" into.
Why? Because the National Guard is a Volunteer militia.
A well regulated volunteer miltia comprised of individuals who have everyday lives. They are called upon in times of need.
Isn't that what the second amendment says? The only difference between then and now is that it is on a volunteer basis........
**I am not endorsing the above comments
Jim, a little history on your point #3: The militia is actually the National Guard, which [pre]dates the Second Amendment by [153] years;
Where the anti's get this is direct from the National Guard itself.
Now, while the Guard, in this case, the Army National Guard, does indeed trace it's history back to the Mass. Bay Colony in 1636, it was not what we today would consider the Guard. It was at that time a citizen-militia of the kind and type exemplified by the founders in the Federalists Papers.
Just before the civil war, the New York state militia became the first militia to be actually named "National Guard" in honor of the Marquis de Lafayette who commanded the "Garde Nationale" in the early days of the French Revolution.
After the civil war, many states began to follow the lead of New York.
There's a bit more, but essentially, you can visit the National Guard Website and see this (mis)information.
Where the anti's get this is direct from the National Guard itself.
Now, while the Guard, in this case, the Army National Guard, does indeed trace it's history back to the Mass. Bay Colony in 1636, it was not what we today would consider the Guard. It was at that time a citizen-militia of the kind and type exemplified by the founders in the Federalists Papers.
Just before the civil war, the New York state militia became the first militia to be actually named "National Guard" in honor of the Marquis de Lafayette who commanded the "Garde Nationale" in the early days of the French Revolution.
After the civil war, many states began to follow the lead of New York.
There's a bit more, but essentially, you can visit the National Guard Website and see this (mis)information.
Someone correct me if I appear to be wrong here, but after reading the decision for the third time, I offer the following:
The dissent was very weak. It mostly hinges on the word "State." Judge Henderson is forgetting her Blackthorn, who deals with this word in several ways. Essentially, her dissent was trashed from 250 years in the past.
Next, the ruling, while a breakthrough as far as Federal Courts go, was actually very narrow. It tossed out the laws that prevented honest citizens from owning and using small arms (particularly handguns) for self defense. The ruling did not strike down the registration laws. In effect, it opened the registration.
The city is essentially been hoisted upon its own petard. It can let the ruling stand (which makes the most sense, from a political stance) or it can petition for a stay while it petitions the Circuit en banc. - forced, that is, by the anti-gun lobby.
This is risky, because Circuit Courts, especially the D.C. Circuit rarely convene en banc except to correct a mistaken panel. Judge Silberman is a senior Judge on the Circuit and I seriously doubt that he is out of line with his thinking.
If the Circuit grants an en banc hearing, I strongly suspect that it will uphold the panels decision. In which case, the City will appeal to the SCOTUS.
If the full Circuit reverses the panel, then Parker, et al will appeal to the SCOTUS.
Whichever way it goes, SCOTUS will get to decide the issue.
Of course, now the question is: will they dodge the issue again or will they grant cert? For those that don't know, it takes 4 Justices on the court to grant cert. Even though this decision is very narrow, it's a political hot potato. And make no mistake, the SCOTUS is as political as it gets.
Now here's the interesting part: The majorities reasoning (in reaching the decision) is not dicta, as Henderson claims. It is a necessary part of the decision itself. As such, I have the distinct feeling that the decision was written, not for the Circuit, but for the SCOTUS itself. It is an excellent brief for granting cert. It lays out in almost "irritating" detail the reasoning behind the decision. It is, in my opinion, the most succinct and complete treatise on what the 2A means. It never discusses the scope of the second beyond what was necessary to reach the decision (which is why it is not dicta). The research and citations are impeccable.
In short, it is as if Silberman tailored this decision just for the SCOTUS. The Justices would really have to weave from thin air, in order to reverse this decision (note: we've seen them do this before - so don't hold your breath), should they grant cert.
The dissent was very weak. It mostly hinges on the word "State." Judge Henderson is forgetting her Blackthorn, who deals with this word in several ways. Essentially, her dissent was trashed from 250 years in the past.
Next, the ruling, while a breakthrough as far as Federal Courts go, was actually very narrow. It tossed out the laws that prevented honest citizens from owning and using small arms (particularly handguns) for self defense. The ruling did not strike down the registration laws. In effect, it opened the registration.
The city is essentially been hoisted upon its own petard. It can let the ruling stand (which makes the most sense, from a political stance) or it can petition for a stay while it petitions the Circuit en banc. - forced, that is, by the anti-gun lobby.
This is risky, because Circuit Courts, especially the D.C. Circuit rarely convene en banc except to correct a mistaken panel. Judge Silberman is a senior Judge on the Circuit and I seriously doubt that he is out of line with his thinking.
If the Circuit grants an en banc hearing, I strongly suspect that it will uphold the panels decision. In which case, the City will appeal to the SCOTUS.
If the full Circuit reverses the panel, then Parker, et al will appeal to the SCOTUS.
Whichever way it goes, SCOTUS will get to decide the issue.
Of course, now the question is: will they dodge the issue again or will they grant cert? For those that don't know, it takes 4 Justices on the court to grant cert. Even though this decision is very narrow, it's a political hot potato. And make no mistake, the SCOTUS is as political as it gets.
Now here's the interesting part: The majorities reasoning (in reaching the decision) is not dicta, as Henderson claims. It is a necessary part of the decision itself. As such, I have the distinct feeling that the decision was written, not for the Circuit, but for the SCOTUS itself. It is an excellent brief for granting cert. It lays out in almost "irritating" detail the reasoning behind the decision. It is, in my opinion, the most succinct and complete treatise on what the 2A means. It never discusses the scope of the second beyond what was necessary to reach the decision (which is why it is not dicta). The research and citations are impeccable.
In short, it is as if Silberman tailored this decision just for the SCOTUS. The Justices would really have to weave from thin air, in order to reverse this decision (note: we've seen them do this before - so don't hold your breath), should they grant cert.
Ric in RIC
Inactive
The framers of the constitution on the Second Amendment
The Framers on the Second Amendment.
James Madison: The right of the people to keep and bear Arms, shall not be infringed. A well-regulated Militia, composed of the people trained to arms, is the best and most natural defense of a free country.
Samuel Adams: And that the said Constitution be never construed to authorize Congress to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.
Thomas Paine: Arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property ... horrid mischief would ensue were the law-abiding deprived of the use of them.
George Mason: I ask, sir, what is the militia? It is the whole people, except for a few public officials.
George Washington: Firearms are second only to the Constitution in importance they are the peoples liberty teeth. A free people ought to be armed. When firearms go, all goes. We need them every hour.
Thomas Jefferson: No free man shall ever be debarred the use of arms. ... The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.
Alexander Hamilton: The best we can hope for, concerning the people at large, is that they be properly armed. It is absolutely clear that the Bill of Rights was meant to apply to individuals NOT to collective bodies.
The Framers on the Second Amendment.
James Madison: The right of the people to keep and bear Arms, shall not be infringed. A well-regulated Militia, composed of the people trained to arms, is the best and most natural defense of a free country.
Samuel Adams: And that the said Constitution be never construed to authorize Congress to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.
Thomas Paine: Arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property ... horrid mischief would ensue were the law-abiding deprived of the use of them.
George Mason: I ask, sir, what is the militia? It is the whole people, except for a few public officials.
George Washington: Firearms are second only to the Constitution in importance they are the peoples liberty teeth. A free people ought to be armed. When firearms go, all goes. We need them every hour.
Thomas Jefferson: No free man shall ever be debarred the use of arms. ... The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.
Alexander Hamilton: The best we can hope for, concerning the people at large, is that they be properly armed. It is absolutely clear that the Bill of Rights was meant to apply to individuals NOT to collective bodies.
I was going to post the link to the decision but forgot how to do so, so I will simply place the Address here and hope it don't offend.
http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf
http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf
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national guard
did every one forget that in 1934? the national guard was made a component of the army.it is now called"the army national guard"the gov arms and pays the guard.-there is in some states a "state guard"in RI it is "the honerable artillery company"the name may be off.texas I believe still has a state guard.
did every one forget that in 1934? the national guard was made a component of the army.it is now called"the army national guard"the gov arms and pays the guard.-there is in some states a "state guard"in RI it is "the honerable artillery company"the name may be off.texas I believe still has a state guard.
Nobody is forgetting Teddy. My point was that the anti's use the very statements of the Army itself to make their misinformed point. Did you even go to the link I provided? When the Army National Guard makes the bold claim it does, can you blame them (the anti's) for using such a statement?
Never once said I agreed with it. I was just pointing out where they get it from.
Now if you want to get downright technical, it was the 1892 Militia Act that began the federalization the State Militias (see Spanish American War and why the states refused to send their Guard units). This was further enhanced by the National Defense Act of 1916.
Never once said I agreed with it. I was just pointing out where they get it from.
Now if you want to get downright technical, it was the 1892 Militia Act that began the federalization the State Militias (see Spanish American War and why the states refused to send their Guard units). This was further enhanced by the National Defense Act of 1916.
an apologe
sir I stand corrected.I am glad you made the statement we need all the information we can get.this is a great ruling provided we can build on it. and for the other post on NRA
had same thing happen in SC. by the NRA.they sank a revision in the concealed weapon law.because they had not had a hand in it.they seem very jealous.
NRA endowment member
sir I stand corrected.I am glad you made the statement we need all the information we can get.this is a great ruling provided we can build on it. and for the other post on NRA
had same thing happen in SC. by the NRA.they sank a revision in the concealed weapon law.because they had not had a hand in it.they seem very jealous.
NRA endowment member
Wildalaska
Moderator
Lets get down to the nitty gritty here...this academic discussion is all fine and dandy, but with this decision, as with Emerson, the time has come to leave the arcana of constituional law and stirring excerpts from the founders and move into reality, viz:
1. When and if the issue reaches SCOTUS, the Court willl, on the basis of scholarship (see Sanford Levinson), case law and history undoubtably rule that the @nd protects an individual right.
2. Based on precedent, the 2nd will be applied to the states
3.. 2nd ammendment rights will be subject to "limitations" under strict scrutiny standards. Deal with it, it is both likely AND constituionally supportable.
Accordingly the issues is the future are not going to be annoyances such as the instant check or the NFA (except as it relates to a "ban" on ownership by not permitting registration), but rather, laws in places like Chicago, NYC and NJ where guns are effectively banned. The wild card is cosmetic assault weapons laws, which, under a strict scrutiny test, if written right, could be and probably are constituional, as well as registration laws, which also are constitutional.
Bottom line: action rather than debate is needed, as follows:
1. Someone needs to raise the constitutional issue in a place like Chicago.
2. Every gun owner should dedicate some time to the most effective means of stopping anti gun politics by things such as "take a liberal to shoot day", take a media member to shoot day, outreach to the gay, latino, transgendered and immigrant communities and most importantly, stop the silly frothing at the mouth tirades....gun owners must TURN MAINSTREAM, or at least, we must police our own ranks to remove the screechers and that haters so that the general public realizes that a gun is just a tool, not the penis extension of the angry white male.
3. Educated and reasonable letters, letters, letters to everyone involved in the issue from politicians to the media. No more slogans like "from my cold dead fingers"...no more JBTs or sheeple. No morte bs staistics...this is a policy debate and that requires thinking about the policies, negotiations and compromise...yes comprimise....
We have to start working.
WildletsdoabunchofformlettersAlaska
1. When and if the issue reaches SCOTUS, the Court willl, on the basis of scholarship (see Sanford Levinson), case law and history undoubtably rule that the @nd protects an individual right.
2. Based on precedent, the 2nd will be applied to the states
3.. 2nd ammendment rights will be subject to "limitations" under strict scrutiny standards. Deal with it, it is both likely AND constituionally supportable.
Accordingly the issues is the future are not going to be annoyances such as the instant check or the NFA (except as it relates to a "ban" on ownership by not permitting registration), but rather, laws in places like Chicago, NYC and NJ where guns are effectively banned. The wild card is cosmetic assault weapons laws, which, under a strict scrutiny test, if written right, could be and probably are constituional, as well as registration laws, which also are constitutional.
Bottom line: action rather than debate is needed, as follows:
1. Someone needs to raise the constitutional issue in a place like Chicago.
2. Every gun owner should dedicate some time to the most effective means of stopping anti gun politics by things such as "take a liberal to shoot day", take a media member to shoot day, outreach to the gay, latino, transgendered and immigrant communities and most importantly, stop the silly frothing at the mouth tirades....gun owners must TURN MAINSTREAM, or at least, we must police our own ranks to remove the screechers and that haters so that the general public realizes that a gun is just a tool, not the penis extension of the angry white male.
3. Educated and reasonable letters, letters, letters to everyone involved in the issue from politicians to the media. No more slogans like "from my cold dead fingers"...no more JBTs or sheeple. No morte bs staistics...this is a policy debate and that requires thinking about the policies, negotiations and compromise...yes comprimise....
We have to start working.
WildletsdoabunchofformlettersAlaska
Alito, Roberts, Scalia and Thomas will decide 2A is an individual right.
Ginsburg, Souter, Stevens and Breyer will decide it is a state's right.
Kennedy could go either way.
There are at least 4 justices, possibly 5 for whom the rule of law, their duties as jurists, and the clearly documented intentions of the ammendment and COTUS are not as important as enacting social change in accordance with their enlightenned view of "what America should be."
I wish it was as certain as Wild made it out to be. I actually discussed this face to face with Wayne LaPierre back in October when I emt him at a local function. There is real concern over whether or not the we shoudl throw the dice, to say nothing of if the case would be accepted. Loose a 2A case definitively at the SCOTUS and we are truly hosed.
Wildalaska
Moderator
Yep thats what I was talking about. Time to let go of the anger boys, and lets start working. Even the blind pig finds the acorn, especially when thay have NO LEGAL CHOICE.
Whoopee for him. Time for him to join the real world too. A little less screeching is in order.
WildcoffeehighAlaska
Hugh Damright
New member
Let's say that we incorporate/federalize the RKBA ... I can see how that might seem like a good thing, and maybe a few city gun laws could be struck down ... but then we enter an age where it is up to the federal government to determine what is a reasonable restriction on the RKBA ... when the US starts telling Virginians that we must have more and more gun laws which the US thinks are reasonable but which Virginians find to be unreasonable, then will Virginia be a free State such as the Second Amendment is intended to protect?
For example, suppose that fifty years from now the SCOTUS rules that a city has a right to ban handguns ... wouldn't it be better for Virginians to perserve our right to pass preemption laws?
Of course, some folks seem to believe in some kind of "one way jurisdiction", where the US is empowered to say that a city cannot ban handguns, but is not empowered to say that a city can ban handguns. But I don't seem to believe in such a thing ... I reckon if a body has the power/jurisdiction to say "no" then they must have the power/jurisdiction to say "yes".
For example, suppose that fifty years from now the SCOTUS rules that a city has a right to ban handguns ... wouldn't it be better for Virginians to perserve our right to pass preemption laws?
Of course, some folks seem to believe in some kind of "one way jurisdiction", where the US is empowered to say that a city cannot ban handguns, but is not empowered to say that a city can ban handguns. But I don't seem to believe in such a thing ... I reckon if a body has the power/jurisdiction to say "no" then they must have the power/jurisdiction to say "yes".
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Already there. machineguns, silencers and sawed off shotguns.
The SCOTUS is exactly the place where this issue needs to be decided because it is a COTUS issue. This is a case of local, state and fed laws infringing on an ammendment to the COTUS.
You can still fight your state battles on state constiutional grounds but there is most certainly a FEDERAL issue present in that NO STATE or MUNICIPALITY should be able to override the COTUS.
Have VA pass a law that says you can own a machinegun manufactured after 1984 and see if you have State pre-emption of Federal Law.
and you have actually spoken with him when?
The man is the most vocal advocate we have. If he is LOUD itis to counteract the other side. You may not like it but having spoken with him twice I think he does so for two reasons:
1. He IS a solid believer in the 2A and is passionate about it.
2. He knows his place is to be the lightning rod for our side. There are plenty of people working in many of ways for the 2A at the NRA but he is the face man on 2A issues and does what he can to motivate the troops as best he can. His presentation style may not work with you but I have seen it work first hand on many people. Do people want someone on the issue who is not loud and passionate?
I would say the discusion I had with him was very "real world." He had serious concerns about the court balance and is still not absolutely certain that Alito and Roberts are not going to side with "Federal Powers" over "Individual Rights". Given who appointed them and his love for Federal Power (Patriot Act anyone and the recent FBI revelations) this is a reasonable concern. He thinks they are good but not sure.
LaPierre stated they may push for a SCOTUS case on campaign finance reform again now that the balance may have changed. Decisions on that could help gauge where people will side on other cases. He then gave me a person to follow up with at the NRA who I think I will do so with shortly.
That seemd like a real world and though out approach to me. What did you want from him?
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