D.C. vs. Heller (Supreme Court and the 2A) - Mega Thread
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So let's say I egg the house of the CEO of CCA. Can he lock me in one of his clinks? I mean, they're private, right?
We gave that power exclusively to the govt. It contracts private companies to carry it out, but they can only act under the delegated power of government.
Are we getting ready to get this thing closed for thread veer?
We gave that power exclusively to the govt. It contracts private companies to carry it out, but they can only act under the delegated power of government.
Are we getting ready to get this thing closed for thread veer?
i found this to be very interesting....
"Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States." - Noah Webster
"Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States." - Noah Webster
(sarcastically) What???? Pay a TAX on a RIGHT? What's the matter with you Mike? You'd stand by and let the gov't charge a tax so you could exercise your rights?
In reality, the $200 tax might have to disappear. But that does not mean there can't or won't be limitations and responsibilities imposed on those who want to own artillery, explosive shells and WMD's.
I'd see no constitutional issue with the separation of small arms from explosive devices as "area munitions" (grenades & landmines to WMDs) and then regulate the storage of those latter devices to certified munitions bunkers that are located away from populated areas (especially for WMDs). The "safety measures" required for true WMD's (nuclear, biological or chemical) weapons would likely be cost-prohibitive.
There is certainly a "compelling interest" in tightly regulating the storage, maintenance and access to these kinds of devices whether they are in private or government hands.
While it may be "inconvienient" for you to drive 1-2 hours to get to your stash of grenades, mortar shells or 75mm recoiless rifle ammo, it was also "inconvienent" for someone living in the Sierras to ride 2 hours on horseback into town to vote too.
Opinion on the Second Amendment:
"The right is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the laws, are liable to the performance of military duty, and are officered and enrolled for service when called upon.... f the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in so doing the laws of public order." [emphasis added]
-- Thomas M. Cooley (1824-1898),
Chief Justice of the Michigan Supreme Court and author of the leading nineteenth-century works on constitutional law.
"The right is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the laws, are liable to the performance of military duty, and are officered and enrolled for service when called upon.... f the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in so doing the laws of public order." [emphasis added]
-- Thomas M. Cooley (1824-1898),
Chief Justice of the Michigan Supreme Court and author of the leading nineteenth-century works on constitutional law.
Just to add to what Thomas Cooley has said:
"The next amendment is: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." {[In Story's Familiar Exposition of the Constitution of the United States (1840), the following two sentences are also added:] One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men.}
"The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights."
Justice Joseph Story, Commentaries on the Constitution of the United States (1833)
"The next amendment is: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." {[In Story's Familiar Exposition of the Constitution of the United States (1840), the following two sentences are also added:] One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men.}
"The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights."
Justice Joseph Story, Commentaries on the Constitution of the United States (1833)
"And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights."
to Antipitas : sad but so true...
to Antipitas : sad but so true...
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Publius:
Re what I recall of a post of yours, I cannot find it now, you had mentioned something about Miller and ownership/possession of arms of a type similar to military issue being protected.
Re that, I wrote the following:
Would that include those dastardly "assault rifles/weapons" they being Selective fire weapons, usually of rifle configuration, chambered for intermediate power cartridges, ala the M-16 of one "A" variation or another?, to which you replied: I don't understand your question, Alan.
Hopefully this will clear up your question.
Re what I recall of a post of yours, I cannot find it now, you had mentioned something about Miller and ownership/possession of arms of a type similar to military issue being protected.
Re that, I wrote the following:
Would that include those dastardly "assault rifles/weapons" they being Selective fire weapons, usually of rifle configuration, chambered for intermediate power cartridges, ala the M-16 of one "A" variation or another?, to which you replied: I don't understand your question, Alan.
Hopefully this will clear up your question.
Hi Alan,
I think what I said was that the Miller court did not say whether or not sawed off shotguns were militia weapons, they only said that no one had proven to the court that they were militia weapons. If Miller had had a machine gun of the type in common military use at the time, that argument would not have worked. If he had appeared before the Court with evidence of the use of shotguns in WWI, that also would most likely have changed the ruling.
It's worth noting that they never questioned Miller's right to own militia weapons, nor whether he was part of any organized militia. They just said, "we're not sure a sawed off shotgun is a militia weapon, so we're sending this back to the trial court to answer that question." Unfortunately, Miller was a scumbag who fled and then died, so the question never went back to the trial court.
I think what I said was that the Miller court did not say whether or not sawed off shotguns were militia weapons, they only said that no one had proven to the court that they were militia weapons. If Miller had had a machine gun of the type in common military use at the time, that argument would not have worked. If he had appeared before the Court with evidence of the use of shotguns in WWI, that also would most likely have changed the ruling.
It's worth noting that they never questioned Miller's right to own militia weapons, nor whether he was part of any organized militia. They just said, "we're not sure a sawed off shotgun is a militia weapon, so we're sending this back to the trial court to answer that question." Unfortunately, Miller was a scumbag who fled and then died, so the question never went back to the trial court.
publius42 wrote:
Hi Alan,
I think what I said was that the Miller court did not say whether or not sawed off shotguns were militia weapons, they only said that no one had proven to the court that they were militia weapons. If Miller had had a machine gun of the type in common military use at the time, that argument would not have worked. If he had appeared before the Court with evidence of the use of shotguns in WWI, that also would most likely have changed the ruling.
It's worth noting that they never questioned Miller's right to own militia weapons, nor whether he was part of any organized militia. They just said, "we're not sure a sawed off shotgun is a militia weapon, so we're sending this back to the trial court to answer that question." Unfortunately, Miller was a scumbag who fled and then died, so the question never went back to the trial court.
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That might have been generally what you said, I do not recall exactly either, though I do believe that you made mention, re the militia, of their being armed with arms of the same type as were issued to the regular military.From that came my reference to "assault rifles", which would be in the personal possession of militiamen, as they were expected to report, when/if called, with their own weapons, and suitable ammunition, these being of a type similar to those issued to the regular military.
As to Miller not himself appearing before The Court, nor his legal counsel, one wonders at to whether such a proceeding would have been allowed today. Obviously, it was allowed in 1939, the unfortunate result being that The Court had the "benefit" on only the government's side. Naturally, the government didn't bring before The Court, historical facts or other evidence that would have, to use a polite phrase, let the hot air out of their balloon, ergo The Court ruled as it did. Notwithstanding this, for as I understand, at least one of the then sitting justices had served in the military during WW 1, where he might well have personally seen the issue and use of "sawed-off shotguns", and others might otherwise have known of this aspect of the thing, the ruling of The Court strikes one as strange, in the light of history.
Of course, given that I have virtually no legal education or other background, what I understand or not might not amount to much, still I find The Court's ruling curious to say the very least. Who knows but that matters now before the court, or the eddies resulting from pebbles from this case being tossed into the legal pond, we might well see an overturning of any number of laws and previous court findings from an earlier date, Miller being one such.
Hi Alan,
I think what I said was that the Miller court did not say whether or not sawed off shotguns were militia weapons, they only said that no one had proven to the court that they were militia weapons. If Miller had had a machine gun of the type in common military use at the time, that argument would not have worked. If he had appeared before the Court with evidence of the use of shotguns in WWI, that also would most likely have changed the ruling.
It's worth noting that they never questioned Miller's right to own militia weapons, nor whether he was part of any organized militia. They just said, "we're not sure a sawed off shotgun is a militia weapon, so we're sending this back to the trial court to answer that question." Unfortunately, Miller was a scumbag who fled and then died, so the question never went back to the trial court.
-----------------------
That might have been generally what you said, I do not recall exactly either, though I do believe that you made mention, re the militia, of their being armed with arms of the same type as were issued to the regular military.From that came my reference to "assault rifles", which would be in the personal possession of militiamen, as they were expected to report, when/if called, with their own weapons, and suitable ammunition, these being of a type similar to those issued to the regular military.
As to Miller not himself appearing before The Court, nor his legal counsel, one wonders at to whether such a proceeding would have been allowed today. Obviously, it was allowed in 1939, the unfortunate result being that The Court had the "benefit" on only the government's side. Naturally, the government didn't bring before The Court, historical facts or other evidence that would have, to use a polite phrase, let the hot air out of their balloon, ergo The Court ruled as it did. Notwithstanding this, for as I understand, at least one of the then sitting justices had served in the military during WW 1, where he might well have personally seen the issue and use of "sawed-off shotguns", and others might otherwise have known of this aspect of the thing, the ruling of The Court strikes one as strange, in the light of history.
Of course, given that I have virtually no legal education or other background, what I understand or not might not amount to much, still I find The Court's ruling curious to say the very least. Who knows but that matters now before the court, or the eddies resulting from pebbles from this case being tossed into the legal pond, we might well see an overturning of any number of laws and previous court findings from an earlier date, Miller being one such.
I posted a version of this over at THR in response to a question. Here then, is the timetable for briefs to be filed on D.C. v Heller:
D.C. has 45 days to file its brief - Friday, January 4th (Rule 25.1). Respondents will have 30 days to file their brief - Monday, February 4th (Rule 25.2). Reply Brief will be due 30 days after that - Wednesday, March 5th (Rule 25.3).
Applications to extend time to file may be filed up to 10 days before the filing deadline (Rule 30.2).
Amici briefs may be filed within 7 days after the brief for the party supported is filed (Rule 37.3(a)).
Oral arguments will be scheduled by the Court Clerk, not less than 2 weeks after the last date of filling (Rule 27.1).
I would expect the calendar to be filled for March, which would put Orals sometime in April. A decision will be made and announced, most likely at the end of June or early July at the latest - assuming there are no extensions of time filed and granted.
NB: Please remember that while some of these rules are "hard and fast," the Court may set the orals and/or delay the decision at their whim. I would not expect it, but contrary to popular belief, politics do play a part in all of this.
D.C. has 45 days to file its brief - Friday, January 4th (Rule 25.1). Respondents will have 30 days to file their brief - Monday, February 4th (Rule 25.2). Reply Brief will be due 30 days after that - Wednesday, March 5th (Rule 25.3).
Applications to extend time to file may be filed up to 10 days before the filing deadline (Rule 30.2).
Amici briefs may be filed within 7 days after the brief for the party supported is filed (Rule 37.3(a)).
Oral arguments will be scheduled by the Court Clerk, not less than 2 weeks after the last date of filling (Rule 27.1).
I would expect the calendar to be filled for March, which would put Orals sometime in April. A decision will be made and announced, most likely at the end of June or early July at the latest - assuming there are no extensions of time filed and granted.
NB: Please remember that while some of these rules are "hard and fast," the Court may set the orals and/or delay the decision at their whim. I would not expect it, but contrary to popular belief, politics do play a part in all of this.
Antitipas wrote at NB:
Please remember that while some of these rules are "hard and fast," the Court may set the orals and/or delay the decision at their whim. I would not expect it, but contrary to popular belief, politics do play a part in all of this.
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Re your last, I would suspect that anyone who thought or claimed otherwise would be rather sharply out of touch with reality. The sticking point in Parker/Heller V. D.C. being the direction that "politics" will lead the court in, hopefully in a direction that produces a ruling that is both broad as well as favorable to our side.
As to Miller and the politics then in play, having been quite young in 1939, I cannot claim any recollection thereof. Possibly, the "politics" of the day revolved around comments and opinion offered by Roosevelt's AG, one Homer Cummings, who from what I have seen in print was all for what today is commonly described as Gun Control, national gun registration, and the licensing of gun owners, along with the usual folderol, which as I recall might have included draconian restrictions concerning handguns.
Please remember that while some of these rules are "hard and fast," the Court may set the orals and/or delay the decision at their whim. I would not expect it, but contrary to popular belief, politics do play a part in all of this.
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Re your last, I would suspect that anyone who thought or claimed otherwise would be rather sharply out of touch with reality. The sticking point in Parker/Heller V. D.C. being the direction that "politics" will lead the court in, hopefully in a direction that produces a ruling that is both broad as well as favorable to our side.
As to Miller and the politics then in play, having been quite young in 1939, I cannot claim any recollection thereof. Possibly, the "politics" of the day revolved around comments and opinion offered by Roosevelt's AG, one Homer Cummings, who from what I have seen in print was all for what today is commonly described as Gun Control, national gun registration, and the licensing of gun owners, along with the usual folderol, which as I recall might have included draconian restrictions concerning handguns.
As some of you have been patiently waiting... Friday, Jan 4, D.C. will file it's first brief in the Heller case. It should be available for reading sometime that evening. Be aware that the brief is rumored to be about 15,000 words in length.... Still, it will be an interesting read.
Holy Backstabing, Batman!
In other news, relevent to this case, the Washington Post is reporting that the attorney who would have defended the city's gun ban (and wrote to soon-to-be-filed brief), Alan B. Morrison, has been fired.
Also being reported by David Hardy at Of Arms & the Law, Legal Tomes Blog, How Appealing and the Volokh Conspiracy
This is a political move that beats watching Comedy Central, IMO. Whatever is Mayor Fenty thinking? Even Ralph Nader thinks this is the most stupid move the City can make and is calling for acting AG Nichols head.
Holy Backstabing, Batman!
In other news, relevent to this case, the Washington Post is reporting that the attorney who would have defended the city's gun ban (and wrote to soon-to-be-filed brief), Alan B. Morrison, has been fired.
Also being reported by David Hardy at Of Arms & the Law, Legal Tomes Blog, How Appealing and the Volokh Conspiracy
This is a political move that beats watching Comedy Central, IMO. Whatever is Mayor Fenty thinking? Even Ralph Nader thinks this is the most stupid move the City can make and is calling for acting AG Nichols head.
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