D.C. vs. Heller (Supreme Court and the 2A) - Mega Thread
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He said "might" and for what it is worth I am far from certain this will come down in our favor. A loss here could really hurt us badly and I do not know if such a big roll of the dice at this time was warranted.
The meaning of the 2A and understanding of the laws and theories which gave it birth mean absolutely nothing if 5 of 9 people who have no accountability to anyone believe it is more important to orchestrate a plan for society than obey their oaths. Likewise if they feel it is more important to establish gov't power than the rights of the people.
We can loose this easily and if we do there is really nothing that we can do about it.
The meaning of the 2A and understanding of the laws and theories which gave it birth mean absolutely nothing if 5 of 9 people who have no accountability to anyone believe it is more important to orchestrate a plan for society than obey their oaths. Likewise if they feel it is more important to establish gov't power than the rights of the people.
We can loose this easily and if we do there is really nothing that we can do about it.
Garand Illusion
New member
Perfectly said Musketeer.
Like you stated ... the reason I said for good reasons is that if we lose this case we will wish in very short order the NRA HAD managed to scuttle it.
Without the cover of a constitutional 2nd amendment (if it is made into a dead letter) the fight will go to a whole new level and we will have lost the high ground. In many eyes, anyway.
And I fear we will have lost the pivotal battle that will lose the war.
Like you stated ... the reason I said for good reasons is that if we lose this case we will wish in very short order the NRA HAD managed to scuttle it.
Without the cover of a constitutional 2nd amendment (if it is made into a dead letter) the fight will go to a whole new level and we will have lost the high ground. In many eyes, anyway.
And I fear we will have lost the pivotal battle that will lose the war.
If not now, when? After Obama has a chance to stack the court? The gun control agenda has done well over the past 40 years. Are we just fighting a holding action? If so, holding for what? 9 ProRKBA judges? If that is what you are waiting for, it ain't gonna happen.
Or do we wait 20 years? After Obama, a Dem congress, and Obama's supremes have years to work over the 2A. When we are like Great Britain, and our guns are gone.
Or do we wait 20 years? After Obama, a Dem congress, and Obama's supremes have years to work over the 2A. When we are like Great Britain, and our guns are gone.
Wildalaska
Moderator
Anybody read this
Gun Battle at the White House?
By Robert D. Novak
Thursday, March 13, 2008; A17
In preparation for oral arguments Tuesday on the extent of gun rights guaranteed by the Second Amendment, the U.S. Supreme Court has before it a brief signed by Vice President Cheney opposing the Bush administration's stance. Even more remarkably, Cheney is faithfully reflecting the views of President Bush.
The government position filed with the Supreme Court by U.S. Solicitor General Paul Clement stunned gun advocates by opposing the breadth of an appellate court's affirmation of individual ownership rights. The Justice Department, not the vice president, is out of order. But if Bush agrees with Cheney, why did the president not simply order Clement to revise his brief? The answers: disorganization and weakness in the eighth year of his presidency.
Consequently, a Republican administration finds itself aligned against the most popular tenet of social conservatism: gun rights, which enjoy much wider agreement than do opposition to abortion or gay marriage. Promises in two presidential campaigns are being abandoned, and Bush finds himself to the left of even Democratic presidential candidate Sen. Barack Obama.
The 1976 D.C. statute prohibiting ownership of all functional firearms was called unconstitutional a year ago in an opinion by Senior Judge Laurence Silberman, a conservative who has served on the U.S. Court of Appeals for the D.C. Circuit for 22 years. It was assumed that Bush would fight Mayor Adrian Fenty's appeal.
The president and his senior staff were stunned to learn, on the day it was issued, that Clement's petition called on the high court to return the case to the appeals court. The solicitor general argued that Silberman's opinion supporting individual gun rights was so broad that it would endanger federal gun control laws such as the bar on owning machine guns. The president could have ordered a revised brief by Clement.
But facing congressional Democratic pressure to keep his hands off the Justice Department, Bush did not act.
Cheney did join 55 senators and 250 House members in signing a brief supporting the Silberman ruling. Although this unprecedented vice presidential intervention was widely interpreted as a dramatic breakaway from the White House, longtime associates could not believe that Cheney would defy the president. In fact, he did not. Bush approved what Cheney did in his constitutional role as president of the Senate.
That has not lessened puzzlement over Clement, a 41-year-old conservative Washington lawyer who clerked for Silberman and later for Supreme Court Justice Antonin Scalia. Clement has tried to explain his course to the White House by claiming that he feared Justice Anthony Kennedy, the Supreme Court's current swing vote, would join a liberal majority on gun rights if forced to rule on Silberman's opinion.
The more plausible explanation for Clement's stance is that he could not resist opposition to individual gun rights by career lawyers in the Justice Department's Criminal Division (who clashed with the Office of Legal Counsel in a heated internal struggle). Newly installed Attorney General Michael Mukasey, a neophyte at Justice, was unaware of the conflict and learned about Clement's position only after it had been locked in.
A majority of both houses in the Democratic-controlled Congress are on record as being against the District's gun prohibition. So are 31 states, with only five (New York, Massachusetts, Maryland, New Jersey and Hawaii) in support. Sen. Barack Obama has weighed in against the D.C. law, asserting that the Constitution confers an individual right to bear arms -- not just collective authority to form militias.
This popular support for gun rights is not reflected by an advantage in the oral arguments to take place Tuesday. Former solicitor general Walter Dellinger, an old hand at arguing before the Supreme Court, will make the case for the gun prohibition. Opposing counsel Alan Gura, making his first appearance before the high court, does not have the confidence of gun-ownership advocates (who tried to replace him with former solicitor general Ted Olson).
The cause needs help from Clement during his 15-minute oral argument, but it won't get it if he reiterates his written brief. The word was passed in government circles this week that Clement would amend his position when he actually faces the justices -- which would be an odd ending to bizarre behavior by the Justice Department.
© 2008 Creators Syndicate Inc.
http://www.washingtonpost.com/wp-dy...AR2008031203396.html?hpid=opinionsbox1&sub=AR
By the way, I compliment everyone on this thread.
WildgreatjobAlaska ™
Gun Battle at the White House?
By Robert D. Novak
Thursday, March 13, 2008; A17
In preparation for oral arguments Tuesday on the extent of gun rights guaranteed by the Second Amendment, the U.S. Supreme Court has before it a brief signed by Vice President Cheney opposing the Bush administration's stance. Even more remarkably, Cheney is faithfully reflecting the views of President Bush.
The government position filed with the Supreme Court by U.S. Solicitor General Paul Clement stunned gun advocates by opposing the breadth of an appellate court's affirmation of individual ownership rights. The Justice Department, not the vice president, is out of order. But if Bush agrees with Cheney, why did the president not simply order Clement to revise his brief? The answers: disorganization and weakness in the eighth year of his presidency.
Consequently, a Republican administration finds itself aligned against the most popular tenet of social conservatism: gun rights, which enjoy much wider agreement than do opposition to abortion or gay marriage. Promises in two presidential campaigns are being abandoned, and Bush finds himself to the left of even Democratic presidential candidate Sen. Barack Obama.
The 1976 D.C. statute prohibiting ownership of all functional firearms was called unconstitutional a year ago in an opinion by Senior Judge Laurence Silberman, a conservative who has served on the U.S. Court of Appeals for the D.C. Circuit for 22 years. It was assumed that Bush would fight Mayor Adrian Fenty's appeal.
The president and his senior staff were stunned to learn, on the day it was issued, that Clement's petition called on the high court to return the case to the appeals court. The solicitor general argued that Silberman's opinion supporting individual gun rights was so broad that it would endanger federal gun control laws such as the bar on owning machine guns. The president could have ordered a revised brief by Clement.
But facing congressional Democratic pressure to keep his hands off the Justice Department, Bush did not act.
Cheney did join 55 senators and 250 House members in signing a brief supporting the Silberman ruling. Although this unprecedented vice presidential intervention was widely interpreted as a dramatic breakaway from the White House, longtime associates could not believe that Cheney would defy the president. In fact, he did not. Bush approved what Cheney did in his constitutional role as president of the Senate.
That has not lessened puzzlement over Clement, a 41-year-old conservative Washington lawyer who clerked for Silberman and later for Supreme Court Justice Antonin Scalia. Clement has tried to explain his course to the White House by claiming that he feared Justice Anthony Kennedy, the Supreme Court's current swing vote, would join a liberal majority on gun rights if forced to rule on Silberman's opinion.
The more plausible explanation for Clement's stance is that he could not resist opposition to individual gun rights by career lawyers in the Justice Department's Criminal Division (who clashed with the Office of Legal Counsel in a heated internal struggle). Newly installed Attorney General Michael Mukasey, a neophyte at Justice, was unaware of the conflict and learned about Clement's position only after it had been locked in.
A majority of both houses in the Democratic-controlled Congress are on record as being against the District's gun prohibition. So are 31 states, with only five (New York, Massachusetts, Maryland, New Jersey and Hawaii) in support. Sen. Barack Obama has weighed in against the D.C. law, asserting that the Constitution confers an individual right to bear arms -- not just collective authority to form militias.
This popular support for gun rights is not reflected by an advantage in the oral arguments to take place Tuesday. Former solicitor general Walter Dellinger, an old hand at arguing before the Supreme Court, will make the case for the gun prohibition. Opposing counsel Alan Gura, making his first appearance before the high court, does not have the confidence of gun-ownership advocates (who tried to replace him with former solicitor general Ted Olson).
The cause needs help from Clement during his 15-minute oral argument, but it won't get it if he reiterates his written brief. The word was passed in government circles this week that Clement would amend his position when he actually faces the justices -- which would be an odd ending to bizarre behavior by the Justice Department.
© 2008 Creators Syndicate Inc.
http://www.washingtonpost.com/wp-dy...AR2008031203396.html?hpid=opinionsbox1&sub=AR
By the way, I compliment everyone on this thread.
WildgreatjobAlaska ™
Nothing, other than exercise our right "to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
But that's a big hassle, of course.
And besides, I don't think that the Supreme Court will rule that direction anyway. The body of evidence on the original intent of the Second Amendment is vast and clear. If they ignore it, they'd deserve to be altered and abolished, and they know it.
Garand Illusion
New member
You don't rush into a battle for life and liberty that you're going to lose just because you're tired of waiting. A holding action and a draw is FAR better than a total defeat.
Gun control has only done well in a very few states in the last 40 years, and we've turned a lot of that back. Especially at the state level.
NOBODY can ready the future. But ...
If we lose Heller, then we very well may end up in the next half century with gun laws like Great Britain. It may be game over.
Without Heller ... well, we've been fighting a damn good holding action. An odd metaphor, but rather like England in 1941 as it struggled just to survive with no hope of offensive action against Germany. Where there's life, there's hope.
Bottom line is ... I'd rather fight a holding action if we're going to lose Heller and see what we can accomplish -- we've accomplished a hell of a lot so far. I'd rather see the 2nd amendment ignored by the supremes forever (no one has worked it over in the past 80 years, no reason to think a future SCOTUS will want to mess with that kind of trouble) with our current patchwork of gun rights then a dead letter 2nd amendment and Federal bans galore.
Because without the concept of the 2nd amendment, and Congress using the commerce clause to pass whatever laws they want ... they only have to get the right majority once and you can start kissing 'em good buy.
Did anybody ever think the SCOTUS would rule it is in the public interest to use Eminent Domain to claim people's homes so the land can be sold to a developer on the grounds that the developer will create greater tax revenue for the local gov't enacting the eminent domain in the first place?
That is what they did one or two years ago... Be worried.
I'm getting on in years. About ten feet from where I sit is a locker with a bunch of old iron in it. Within the next few years that stuff will be distributed to my kids and grandkids.
What do I tell them to do with it? Bury it for an uncertain future? Turn it in at the local police station? Shake it in the face of a cowering politician? What I'd like to do is have them sit on their front porches in full view of the neighbors, clean and lovingly reassemble it as my dad did and as I did after him. This case may very well give me the answer to my question. If the verdict is pro second amendment we could see a quick reversal of many of the opinions - if not the laws - that have recently burdened those who own guns. If the decision goes the other way I can caution them to maintain a low profile until they finally need those guns.
The past sixty years have been difficult ones for those of us who treasure our guns. I don't know if this case will change any of the harm that has been done but to wait any longer would only make the eventual fight that much harder. Our enemies, already strong, would become even more entrenched in the schools and businesses that shape and sustain our kids. I've never read Sun Tzu's book but I seem to recall an excerpt about never waiting for your enemy to gain strength.
Hit 'em now. If we lose then hit 'em again - differently. Just don't stop hitting!
What do I tell them to do with it? Bury it for an uncertain future? Turn it in at the local police station? Shake it in the face of a cowering politician? What I'd like to do is have them sit on their front porches in full view of the neighbors, clean and lovingly reassemble it as my dad did and as I did after him. This case may very well give me the answer to my question. If the verdict is pro second amendment we could see a quick reversal of many of the opinions - if not the laws - that have recently burdened those who own guns. If the decision goes the other way I can caution them to maintain a low profile until they finally need those guns.
The past sixty years have been difficult ones for those of us who treasure our guns. I don't know if this case will change any of the harm that has been done but to wait any longer would only make the eventual fight that much harder. Our enemies, already strong, would become even more entrenched in the schools and businesses that shape and sustain our kids. I've never read Sun Tzu's book but I seem to recall an excerpt about never waiting for your enemy to gain strength.
Hit 'em now. If we lose then hit 'em again - differently. Just don't stop hitting!
Wildakaska:
If the Clement brief is actually offensive to Bush, how come he hasn't fired the guy, as I believe he has the power to do.
Otherwise, the material you posted is certainly interesting.
All:
The following link will take you to an interview with Aaron Zelman of JPFO and Edwin Vieira, JR., an attorney who offers some interesting/troubling views of/on the Heller case and it's possible ending via USSC action. The audio runs about 30 minutes.
http://www.jpfo.org/media-sound/vieira-heller.mp3
If the Clement brief is actually offensive to Bush, how come he hasn't fired the guy, as I believe he has the power to do.
Otherwise, the material you posted is certainly interesting.
All:
The following link will take you to an interview with Aaron Zelman of JPFO and Edwin Vieira, JR., an attorney who offers some interesting/troubling views of/on the Heller case and it's possible ending via USSC action. The audio runs about 30 minutes.
http://www.jpfo.org/media-sound/vieira-heller.mp3
Going to the Supreme Court for relief, is always a gamble, regardless of who sits on the Bench.
There hasn't been a more receptive Court since since the Miller decision. This is the best Court we have had since then (and quite probably, the best we will have for another 50 years).
Since that time (1939), we have had all but 2 Circuit Courts decide that the 2A is a collective right. All manner of anti-guns laws have been upheld. At some point, we just have to pick up the dice and roll them. In this, I'm with Oldphart and consider him good company.
Come what may, we do need to know where we, and our Bill of Rights, stand. Because this is what's at stake here. The whole enchilada is up for grabs here. Either the Supreme Court validates the principles of the Constitution, along with the prohibitions on governmental power (the BoR), or they will make the whole experiment moot.
The political aspect of this case, should a contrary decision be handed down, may very well be the death knoll of this country. Don't think for a moment that the Court doesn't know this. Whatever they decide, for good or bad, will have far reaching effects. How far and to what extent, will be up to those nine who will sit in judgment of the future directions of this country.
Having said this, I still believe that the Court will decide in favor of Heller. I believe this, because of the nature of the question the Court posed to be answered:
It is a straight, yes or no question. If I am correct, the answer will be, "yes," with little or no discussion. Yes, I'm aware that the question is actually in three parts - the three codes that are in question - and I have detailed my reasonings why they will be held as unconstitutional, both here and elsewhere (see: Gun Rights: The Supreme Court and Heller, S.W.A.T. March 2008).
A simple "yes" (with little or no discussion), minimizes everything. It is the least harmful, overall.
There hasn't been a more receptive Court since since the Miller decision. This is the best Court we have had since then (and quite probably, the best we will have for another 50 years).
Since that time (1939), we have had all but 2 Circuit Courts decide that the 2A is a collective right. All manner of anti-guns laws have been upheld. At some point, we just have to pick up the dice and roll them. In this, I'm with Oldphart and consider him good company.
Come what may, we do need to know where we, and our Bill of Rights, stand. Because this is what's at stake here. The whole enchilada is up for grabs here. Either the Supreme Court validates the principles of the Constitution, along with the prohibitions on governmental power (the BoR), or they will make the whole experiment moot.
The political aspect of this case, should a contrary decision be handed down, may very well be the death knoll of this country. Don't think for a moment that the Court doesn't know this. Whatever they decide, for good or bad, will have far reaching effects. How far and to what extent, will be up to those nine who will sit in judgment of the future directions of this country.
Having said this, I still believe that the Court will decide in favor of Heller. I believe this, because of the nature of the question the Court posed to be answered:
Whether the provisions of [the] D.C. Code, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?
It is a straight, yes or no question. If I am correct, the answer will be, "yes," with little or no discussion. Yes, I'm aware that the question is actually in three parts - the three codes that are in question - and I have detailed my reasonings why they will be held as unconstitutional, both here and elsewhere (see: Gun Rights: The Supreme Court and Heller, S.W.A.T. March 2008).
A simple "yes" (with little or no discussion), minimizes everything. It is the least harmful, overall.
Garand Illusion
New member
BTW -- I also hope that Antip is right and I respect phart's opinion. I'm actually glad this is going to SCOTUS as well, as I think you can see from previous posts.
I just recognize that there are no guarantees and believe that status quo would be better than an all out loss.
Is this the best court we'll ever have? I can't read the future that well myself. We're making great strides locally in this country, and that could be followed by changes at the national level. Maybe not in 2008, but this is not the last election we'll ever have.
But then, I wouldn't totally rule out the pro-gun movement even with a negative ruling. Although I stand behind every negative I listed, we do have a lot of momentum and hopefully some politicians are true enough to stand with us. And maybe it would incite the people to do something positive.
I just recognize that there are no guarantees and believe that status quo would be better than an all out loss.
Is this the best court we'll ever have? I can't read the future that well myself. We're making great strides locally in this country, and that could be followed by changes at the national level. Maybe not in 2008, but this is not the last election we'll ever have.
But then, I wouldn't totally rule out the pro-gun movement even with a negative ruling. Although I stand behind every negative I listed, we do have a lot of momentum and hopefully some politicians are true enough to stand with us. And maybe it would incite the people to do something positive.
The concept of "public use" is evidently as slippery as "regulation of interstate commerce" or "general welfare." The same cannot be said for "shall not be infringed." So looking to Kelo, I believe, has you looking in the wrong direction.
Antipitas makes a very good point - the question is yes or no. Vast reams of historical evidence recognize the Second Amendment as an individual right, while the opposition had to go to British seizure of firearms to make their points, apparently too stupid to realize that this was exactly WHY the Second Amendment was drafted in the first place.
I am confident that the answer will be "yes" - and that will finally drive a stake through the heart of the "collective rights" argument, thanks to the "not affiliated with any state-regulated militia" phrase in the question.
Antipitas makes a very good point - the question is yes or no. Vast reams of historical evidence recognize the Second Amendment as an individual right, while the opposition had to go to British seizure of firearms to make their points, apparently too stupid to realize that this was exactly WHY the Second Amendment was drafted in the first place.
I am confident that the answer will be "yes" - and that will finally drive a stake through the heart of the "collective rights" argument, thanks to the "not affiliated with any state-regulated militia" phrase in the question.
"...but this is not the last election we'll ever have."
I wish I could be completely certain of that. It's easy to say that if Obama or Hillary get the White House we can expect to go Socialist or even Sharia but McCain is hardly a stalwart conservative either. Any of them could find some good reason to suspend the Constitution and declare martial law. We could find ourselves holding elections with only one candidate instead of several with similar political outlooks.
This country has been going downhill for a long time... some say since the Civil War. I can't remember that far back but what I do remember certainly supports that statement. We've enjoyed a few minor successes with the sunsetting of the AWB and Shall Issue in many states but those things barely touch the overall situation. We need a major decision... preferably in our favor but if not then one that will let us know what we have to do to right our ship of state. Make no mistake, it will have to be done sooner or later. History shows that only the most repressive governments last for long periods but that eventually the people rise up and make changes. We will too, though it probably won't be "we" as in the present members of this board but our grandchildren or their grandchildren who will have the job of re-establishing freedom.
I too would prefer nine good conservative justices to be deciding his case but that's not what we have. Considering the candidates running for President, I sincerely doubt we'll get a better court before we get some national emergency that "requires" the President to "protect" us from our own evil guns.
I wish I could be completely certain of that. It's easy to say that if Obama or Hillary get the White House we can expect to go Socialist or even Sharia but McCain is hardly a stalwart conservative either. Any of them could find some good reason to suspend the Constitution and declare martial law. We could find ourselves holding elections with only one candidate instead of several with similar political outlooks.
This country has been going downhill for a long time... some say since the Civil War. I can't remember that far back but what I do remember certainly supports that statement. We've enjoyed a few minor successes with the sunsetting of the AWB and Shall Issue in many states but those things barely touch the overall situation. We need a major decision... preferably in our favor but if not then one that will let us know what we have to do to right our ship of state. Make no mistake, it will have to be done sooner or later. History shows that only the most repressive governments last for long periods but that eventually the people rise up and make changes. We will too, though it probably won't be "we" as in the present members of this board but our grandchildren or their grandchildren who will have the job of re-establishing freedom.
I too would prefer nine good conservative justices to be deciding his case but that's not what we have. Considering the candidates running for President, I sincerely doubt we'll get a better court before we get some national emergency that "requires" the President to "protect" us from our own evil guns.
Antipitas wrote in part:
Going to the Supreme Court for relief, is always a gamble, regardless of who sits on the Bench.
There hasn't been a more receptive Court since since the Miller decision. This is the best Court we have had since then (and quite probably, the best we will have for another 50 years).
-----------------------
Re his observations and other things, the following question comes to mind. If Not Now, Indeed When?
Going to the Supreme Court for relief, is always a gamble, regardless of who sits on the Bench.
There hasn't been a more receptive Court since since the Miller decision. This is the best Court we have had since then (and quite probably, the best we will have for another 50 years).
-----------------------
Re his observations and other things, the following question comes to mind. If Not Now, Indeed When?
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