How does the 2nd get a Roe V Wade?

M

Meiji_man

New member
I was not around when the Roe v Wade Debates were going on. From what I hear though, it was a hand crafted suit specificly built from the ground up, to go to SCOTUS, and to set in stone the issue.
If the NRA, GOA, and others could find the "pure second" case. With the most PC crafted players on the face of the earth. Could it be taken up to SCOTUS and win? What would the elements of the "perfect case" be? I like the idea of taking a retired WW2 vet. in New York City or elsewhere. Who uses his 60 yearold 1911 to vape a BG in his store. Then gets nailed on possesion charges. Emerson is good, but there's the "5th" issue.
 
Wishful thinking at this point. What you say about Roe is true, but they could count heads and know the courts decision beforehand.

We certainly don't know that we have a majority that will faithfully interprete the 2nd, do we? We only know that Scalia and Thomas support the 2nd, where are the other three? Rehnquist, O'Connor, Kennedy?
 
The way I see it Roe v. Wade never should have made it to the high court as abortion has nothing do do with the constitution, but should be a state issue. But I do see your point Meiji, here is a little from my clayton cramer book. A little off your question but these are some of the options that the court could decide.

The court can recognize the Second Amendment as a limitation on the powers of the Federal Government ONLY, precluding any federal ban. Having done so, it can either use the republican theory, recognize that the Framers intended for the tools of revolution to be widely distribited, and use the U.S. v. Miller precedent to hold that milita weapons are protected; or it can use the liberal theory, and recognize that nearly any hand carried weapon qualifies as constitutionally protected. This would leave a number of state laws, such as Kalifornia's, intact--but raise serious questions of the constitutionality of statutes in Massachusetts and New York, where the state analogs to the Second Amendment would clearly need to be interpreted in an equivalent manner.

The court can recognize the Second Amendment as incorporated under the 14th. If it does so, it can either use the republican theory, and therefore strike down the stae laws that prohibit or restrictively license rifles, shotguns, and large military pistols; or the liberal theory, and strike down a great many laws on a wide variety of weapons, much as the Oregon Suprme Court did in the 1980's. This would also lead to serious questions about the constitutionality of statutes that provided discretion to the authoritits in the issuance of permits to carry or purchase firearms.

The Supreme Court has the option to continue ducking decision about the 2nd--and allow circuit courts to make decisions that would have seemed incomprehensible to the framers--as they did when they denied the appeal of Quilici V. Village of morton grove (7th circuit 1982) and upheld the Appeals courts decision that handguns ar not military weapons. Without direciton form the Supreme Court, the decisions may eventually diverge sufficiently that, for practical purposes, the constitutionality of gun control laws will differ depending on the circuit.

Finally the Supreme Court has a fourth Option--to hear a case, overturn existing precedents of U.S. v. Cruikshank (1876) and Presser v. Illinois (1886), and ignore the overwhelming number of state supreme court decisons that have recognized "the right to keep and bear arms" as an individual right. But this last option has risks. Many millions of Americans will beocme angry, afraid, and will lose confidence in the integrity of their government---and those millions will be forced to look to the arms they possess on that day and make the choice: "Use it, or loose it" Unlike other factions whose rights have been stepped on throughout American history, owners of "asssult rifles" are in a positon to experimentally determine if firearms can be used to overturn a modern government. Win or lose, the results will be unpleasant.

It is important to remember that the court has a long history of wriggling out of unpleasant decisions; U.S. v. Miller is just one example. The court has made other decisions that have provoked political change to counteract those decisions; the Warren Court's recognition of the rights of criminal suspects and the Rov v. Wade decision played a role in the conservative political shift of American National politics that culminated in the election of President Reagan. Most dramatically, the court in Dred Scott v. Sanford (1857) made a decison so diametrically opposed to the sentiments of abolitionists, that the only resolution possible was the Civil War.

Gotta watch out who gets into office as it always affects the courts for years to come.

This month's "Court Jester" Award: Bill Clinton has nominated Ms. Bonnie Campbell to fill a vacancy on the Eighth U.S. Circuit Court of Appeals. Ms. Campbell, who has never held a previous position as a judge, has strong ties to feminist and pro-abortion groups.

"A woman who demands further gun control legislation is like a chicken who roots for Colonel Sanders." --Larry Elder



[This message has been edited by oberkommando (edited July 29, 2000).]
 
MEIJI_MAN Check out this site I posted the link before but dont know if you saw it on the other thread whateve it was, the article is too long to post here in my view, though I think a lot of members of this forum should read it to see where the scholars are viewing the second amendment from these days.

Here it is: http://www.linguafranca.com/0002/showdown.html
 
Since Clayton's book was first published, there's been scholarship that says that the 14th Amendment was specifically planned as an "arm the blacks against lynch mobs and KKK raids" measure. Clayton himself pointed out Stephen Hallbrook's book to me ("That Every Man Be Armed") in his living room and was quite impressed.

Yale law professor Akhil Reed Amar backs the Hallbrook view in his book "The Bill Of Rights". I've read that, am personally impressed, haven't yet scored a copy of Hallbrook's work.

US vs. Emerson is as perfect a test case as we could possibly craft ourselves, in many ways. It's in the right Fed Circuit (the 5th) that's liable to uphold trial Judge Cumming's opinion that the 2A is an individual civil right that at the very least can't be revoked via a "standard form" without a trial or specific finding of public threat.

As a bonus, the gun is a Beretta 9mm so similar to current US military issue that the Miller "is this a militia weapon?" question is side-stepped. We can deal with that later. (The US military has issued, used or distributed so many funky weapons over the years that damn near ANYTHING qualifies :D.)

And the law involved is Federal, therefore the Hallbrook/Amar theory that the 14th transferred the 2A to the states isn't in play. The next possible case "up to bat" that could decide that is the California Roberti-Roos case involving a state ban on "assault rifles", which even in semi-auto config are about as "militia weapon" as they get.

Understand, if the 5th Circuit goes our way and decides Emerson at least in part on 2A grounds, they'll be 180deg. opposite the 9th where I live (where "collective right" is the paradigm in play). That gross difference all but guarantees SCOTUS scrutiny AND they'll have to sort out the 2A implications rather than "duck out" on 5th or 10th amendment grounds. The only danger is that the 5th Circuit could themselves sidestep the 2A bit...we don't *think* they'll do that, but they could - the damn Feds screwed up so many different ways they could indeed :(.

If Emerson does well at the 5th Circuit, all we need are the right Judges on the SCOTUS. The next prez will pick between 1 and 4. Bush's daddy picked Clarence Thomas, one of our best friends in the Supremes, Dubya just picked a seriously pro-RKBA veep and he's said publicly he admired Scalia most among the current Supremes and he'd go find more guys like that - and Scalia is another of our buddies.

Hell ya. Vote Bush.

Jim
 
Originally posted by Jim March:
Since Clayton's book was first published, there's been scholarship that says that the 14th Amendment was specifically planned as an "arm the blacks against lynch mobs and KKK raids" measure . . .

My own theory of the Second Amendment is that the founders put in the stuff about the militia in order to lay the theoretical groundwork for applying the Second Amendment to the States. In their view, the citizen militia was an essential component not only of national defense, but a bulwark against tyranny. If they had meant the Second Amendment only as a restriction on the powers of the federal government, why did they not say that "Congress shall make no law" restricting the right to keep and bear arms, in similar fashion to the First Amendment?

Anyway, to ask for a Roe v. Wade decision is to dream. Roe v. Wade is incredibly bad law. No one can say where exactly in the Constitution the right to abortion is guaranteed. On the other hand, we have a very specific Second Amendment. To get a Roe v. Wade type of decision, the Court would have to rule that minors are allowed to possess field artillery without informing their parents, and even this is not the stretching of constitutional law that occurred in Roe v. Wade.

Your Cousin Vinnie.
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