Supreme Court Cases

R

RWK

New member
The Supreme Court may soon accept some Second Amendment cases, principally because the RKBA has become a major and current political issue. Many of our TFL brethren believe that a series of Supreme Court decisions that affirm the strict constructionist interpretation of the Second Amendment ("the right of the people to keep and bear arms shall not be infringed") will result.

While I believe that outcome is warranted, I'm afraid the Court will construe the Second Amendment, as it does the remainder of the Constitution (e.g., the First Amendment's freedom of speech guarantees do not extend to crying "fire" in a crowded theatre). For example:
> Do "arms" include fully automatic weapons, artillery pieces, etc.?
> Do "the people" include convicted felons, the mentally deranged, etc.?
> Does "infringed" preclude onerous licensing requirements, registration, taxation, etc.?

I certainly am not advocating interpretive decisions; however, based on its long history we are virtually certain to see the Court impose its judgment in a quasi-legislative manner.

This leads me to a substantial conclusion: It is better to keep the Supreme Court removed from the RKBA debate, since any decision(s) are likely to impose/affirm some RKBA limitations, whereas the Second Amendment is now virtually uninterrupted by the high Court.
 
RWK: But not uninterpreted by lower courts, whose virtually uniform anti-RKBA decisions have the force of law until the Supreme court rules. If the Supreme court takes a case, we have a chance of a positive ruling. Probably, almost certainly, not all we want. But a start. A floor to stop our current free-fall. After all, the FIRST amendment didn't get much respect from the court at first, either. If the court recognizes the Second amendment as a guarantee of an individual right at all, (And indications are they would.) the logic of civil rights jurisprudence will drive them in our direction, since infringements on civil rights have to be justified by a very high standard of proof. Not just Congressional whim.

In my opinion, better to end this policy of malign neglect, even at the risk of a hostile SC ruling, which would after all only ratify what the lower courts have already been doing.

And, by the way, that's "falsely" cry fire in a crowded theater.

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Sic semper tyrannis!
 
Emerson will be decided in the 5th Circuit in New Orleans this June. The 5th could possibly go pro-gun on this, they are a conservative court. There were 18 pro-gun briefs filed and 8 anti-gun briefs. I have read some of the pro briefs and only read one anti brief so far, it uses some poor logic IMHO. To bad I am not a judge. I will plow through the rest. If the govt loses in the 5th they will probably appeal to the SC. If they do not. or allow stare decisis, it opens the gates to challange nearly every restrictive gun control law in the country on the basis of the term 'infringed' in the Second Amendment. I do not know if the court will address the 'militia' clause, but it may in relation to 'the people' and 'infringed'.
 
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Jeff OTMG:
Emerson will be decided in the 5th Circuit in New Orleans this June. The 5th could possibly go pro-gun on this, they are a conservative court. There were 18 pro-gun briefs filed and 8 anti-gun briefs. [/quote]

I expect the court to go pro-individual right.
I read some of the briefs (there wasn't 18 PRO-2nd Amendment briefs last time I was there...that is great!).
They all cite legal precedent..but what of the precedent that American citizens have owned guns on an individual basis for 224 years. Now, that is the precedent I want the court to realize!
 
i submit that the second amendment does not establish any rights. it affirms and protects rights that it states already exist. it is not the function of the congress, federal government or supreme court to modify or abridge that right, anymore than the right to free speech or freedom of religion is to be modified or abridged. if any decision comes it is likely to muddy the waters even futher. anyone with half a mind can read the texts from the time of the framing of the bill of rights and see that the intent of this amendment was about the rights of individuals. by protecting our rights the health of the free state, protected by a citizen militia was assured.

oh yes, by the way, registration, taxation and permit structures are infrigement and restriction. refer to the decision by the supreme court on a tax on news print and ink. they decided that this amounted to a defacto act by the federal government limiting the free press. all these items are traded intrastate.

and as far as machine guns, mortars ect. if you accept the severely limited version of the 2nd as just reffering to a citizen militia. then what weapons are we to appear with when called. bolt actions? revolvers? shotguns? 10 round clips on what semiautos they LET us keep? BULL HOCKY
we have laws enough against felons and mental deviates with weapons. if you are not one you should be able to buy what you want when you want. and carry it if you can handle it. but if you screw up and cross the line. you should be strung up by the neck in public. it is the namby pamby way we handle our criminals now that has led us all to pay the price for thier rampages.

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Democracy is two wolves and a lamb voting on what is for lunch.
Liberty is a well armed lamb contesting the outcome of the vote.
Let he that hath no sword sell his garment and buy one. Luke 22-36
They all hold swords, being expert in war: every man hath his sword upon his thigh because of fear in the night. Song of Solomon 3-8
The man that can keep his head and aims carefully when the situation has gone bad and lead is flying usually wins the fight.

[This message has been edited by riddleofsteel (edited March 27, 2000).]
 
RWK - I have heard your arguement before. I think it may have been valid some years ago, when we could still win in Congress.

I think it is time to take our case to the courts just the way our opponents have with other pieces of their agenda. With the present makup of the court I think a 5-4 decision in our favor is likely. Would we have seen that in the Warren Court? I don't think so. Will we see it in the next court? Especially if a Democrat gets to make some appointments. I rather doubt it.

An affirmative ruling on Emerson will set them back decades. It will give us time to make the changes in society that are necessary for us to win in Congress again. We are losing fighting the way we are now. I don't see any way that this court will rule against us. Look at their other decisions on individual rights. I think the court is attempting to fullfill it's role as the check on the other two branches of government. Our present court is leaning more toward a literal interpretation of the constitution then any court has since the '30s. I think the time is now.

Jeff
 
Jeff, and others: I think we can count on Scalia and Thomas to go our way, but I'd be concerned about the others. If Bush can win in November (and I think he can), we would have a much better shot. But who knows how long it will take for Emerson to be heard, or if they will even hear it? It took nearly four years for them to decide on the FDA and tobacco.

Dick
 
As far as the Supreme Court seeing things our way we may have a problem . They seem to look out for future problems and act before it happens . The fact that we have had Second Ammendment rights for 224 years may not hold water . Mormons had Plural Marraige for some years and the SC struck them a blow in 1890 when the law forbidding it was upheld . The arguement of Religious freedom was circumvented deftly . They may BELIEVE . They may , however not act on it .When the Constitution was framed it said that ALL MEN were created equal . Yet many of the framers had slaves . Sooooo all men excluded blacks . NOT ANY MORE !! The constitution is interpeted according to the standards in effect today . If the SC fears everyone becomming an overnight RAMBO they will rule on the side of public safety as they view it . And noooooobody overrules the SC .
Things like this are at the very heart of who the Pres. gets to nominate for a vacancy . A Republican Pres. with a Republican Congress you get a conservative .Dem. Pres. with Dem. Congress you get a bed wetting liberal . I would watch out for a very P.C. ruling with ambigiuos justification . Justice Blah Blah writing for the majority ." Whereas the certainty of whatever concludes that the definite unknown of something cannot be thought of as simply an enigma but an ongoing struggle . People have for so long done something we can only conclude that it has been a question . "
I'm sure that after they get done with this fiasco 9 drunks could decide on 3 Pizza toppings with a coupon easier than understanding the direction of the ruling .

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TOM SASS MEMBER AMERICAN LEGION MEMBER NRA MEMBER
 
I grabbed this off the msnbc's bbs.
A pro 2nd. was debateing a lib.gun grabber.
I am no lawyer but it sounds good to me.


SO I GUESS WHEN THE CONSTITUTION SAYS, WE THE PEOPLE OF
THE UNITED STATES IN ORDER TO FORM A MORE PERFECT UNION!!
IT DOES NOT MEAN ME AND YOU.

PULITZER PRIZE-WINNING HISTORIANS SAY THAT THE SECOND
AMENDMENT DOES NOT PREVENT THE GOVERMENT
FROM IMPOSEING REGULATIONS ON GUN OWNERS!!
SORRY BUT IT DOES!!
!!HERES THE PROOF!!
A WELL REGULATED MILITIA !! THAT MEANS
U.S.CITIZENS WHO CHOOSE TO BE A MEMBER OF A ARMED AND READY FORCE
SO YOU CAN REGULATE THE MILITIA!!
BEING NECESSARY!!HAVE TO HAVE!!
TO THE SECURITY.TO DEFEND AND PROTECT!!
OF A FREE STATE. UNITED STATES!! TO HAVE ABSOLUTE RIGHTS!!
THE RIGHT!!WITCH IS A ABSOLUTE RIGHT, MEANS NO LAWS CAN BE PASSED!! OR IT IS NO LONGER A ABSOLUTE RIGHT!!
OF THE PEOPLE!!THAT IS YOU AND ME!!
TO KEEP AND BEAR ARMS!!THAT IS TO, OWN GUNS,KNIFES,ETC.
AND USE GUNS,KNIFES,ETC.!!
SHALL NOT BE INFRINGED!!THAT MEANS NO ENCROACHMENT!!
LOOK UP THE WORD INFRINGE!!
INFRINGE MEANS-TO ENCROACH UPON!!
GUN LAWS ENCROACH UP ON MY ABSOLUTE RIGHT!!THEY LIMIT MY
ABSOLUTE RIGHT!!
SO GUN LAWS ARE UNCONSTITIONAL!!

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!!

I HAVE FOUND THAT THE FEDS. USE THE WEBSTER DICTIONARY TO FIND MEANINGS OF WORDS!!
THEY USE THESE INTERPRETATIONS IN COURT CASES!
WELL THERE IS A PRECEDENT. ALL OF THESE WORDS ARE IN IT.-GOOD FOR THEM GOOD FOR ME.
 
There are a number other interesting points about all of this:

1. There should be a book out later this year that addresses the false notion that the Supreme Court only addressed the 2nd Amendment in U.S. v. Miller (1939).

2. Emerson could very well be decided on other than a 2nd Amendment basis, such as the 5th. Even if the 5th Circuit Court of Appeals upholds Emerson, it may still not help settle RKBA confusion.

3. The anti-self defense movement has begun to capitulate regarding the 'individual right' argument. Note the recent statement reported from some 40 'scholars' of various reputations. The emerging strategy seems to be one of admitting the RKBA is an individual right, but that doesn't mean government can't 'regulate' that right. I have even heard it argued that 'shall not be infringed' only means the government can't ban all firearms.

The plot thickens.

Regards from AZ
 
It is time to bring this thing to a head. If it contiues to fester, only ill will continue to follow. At least the lines will be clearly drawn, and we will seperate the lambs from the wolves. It is time to concentrate our resources and stike while the iron is hot. We may never have a more favorable court, and I believe it will only get better if GWB is elected. Being from Texas myself, I know him to be a fair and honorable with respect to firearm rights. He openly disagreed with his father on his stand with the NRA. IMHO, the weight of history is in our favor. There is ample evidence in writting from the founding fathers to backup the individual right to bear arms and its meaning intended to secure our liberty from oppressive government. One reason that the court has stayed away form this issue was to prevent the legal codifying of revolution setforth in our constitution. To admit to the right of the people to bear arms by the courts, is tantamount to admitting the right of the people to overthrow the government using armed force when their rights are infringed, because that is the very reason the second amendment was placed there. The purpose of setting forth our rights in a document such as our Constitution has nothing to do with our system of government persa, as much as codifying what responsiblities governments have to the people and the rights of the people to secure those rights from government infringement. Our rights as people are above and independent of any government, regardless of the system that government operates on. That is why military men and government officals swear an oath to the protect and defend the Constitution, not a government or person. However, the Uniform code of Military Justice, circumvents many constituional guarantees, and allows for the prosecution of military personnel under circumstances where their understanding of the constitution comes in conflict with "lawful" orders from superiors. You know, the NAZI syndrome- I was merely following orders form my superiors. I wish those folks had not worn uniforms and confused the American people as to the fact that the NAZI leaders were all CIVILIANS as was the police force that did their bidding, and were legally elected by the people just like in this country. It is a very thin skin of civilization, which covers thousands of years of barbarity as we have witnessed many time in this century alone. There can be no more fence sitting with this thing. Not to decide is to decide. Stands must be made, and on this one, there is bedrock.

[This message has been edited by ak9 (edited March 31, 2000).]
 
Sorry to go off on a tangent here folks, but I sure appreciate the civility with which this topic is being discussed. I have been on many a newsgrousp of supposedly equal minded members, but things sure got nasty quick when one person started calling names.

Thanks for keeping the gloves on,
Andy
 
Does'nt alot depend on the lawyers who will argue this case in the SC? If it does go that far, they will be arguing for their client (Emerson)Won't the Supremes narrow their focus on the case at hand....and not a blanket ruling (what constitutes infringment..etc?)on the 2nd ammendment?
 
Mr. X,

I am neither an attorney nor a student of the Supreme Court. However, I respectfully suggest that laws, legal arguments and briefs, legislation, and litigation mean comparatively little -– particularly in a politically-charged area like the RKBA –- because the Court’s members are likely to decide what outcome is desired and then construe all the information and documentation before them to substantiate their predetermined conclusion.
 
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