More Parker vs. the District of Columbia

I called Judge Silberman senile in a previous post and I now stand by that after reading this decision.

Unlike everyone else on the web who has no legal knowledge and calls this "the correct decision", this decision is only worthy of picking up my dog poop. Silberman must have let his clerk write this and not proof read it if he isn't senile.

There are four reasons this is crap:
1) Stare decisis
2) Misunderstanding of Miller v. US, 307 U.S. 174 (1939)
3) Poor scholarship and use of citations.
4) Silly logic

Let's start with stare decisis. Judge Silberman should know this as it's something everyone learns before law school and should have grasped by first term. Sure US law schools are dogshit, but come on--it's a basic.

Stare decisis for those of you who don't understand it. including you Judge Silberman, is a Latin legal term, used in common law to express the notion that prior court decisions must be recognized as precedents, according to case law. More fully, the legal term is "stare decisis et non quieta movere" meaning "stand by decisions and do not move that which is quiet" (the phrase "quieta non movere" is itself a famous maxim akin to "let sleeping dogs lie").

The principle of stare decisis can be divided into two components. The first is the rule that a decision made by a higher court is binding precedent (also known as mandatory authority) which a lower court cannot overturn. The second is the principle that a court should not overturn its own precedents unless there is a strong reason to do so and should be guided by principles from lateral and lower courts. The second principle, regarding persuasive precedent, is an advisory one which courts can and do occasionally ignore.

Stare decisis is one of the basics for the rule of law, which is predictability. It screws the system up if some joker judge decides he doesn't like precedent.

In short, Silberman, you have to follow precedent if the Supreme Court makes a ruling whether or not you agree with it until it is overturned. You buck that tradition in violation of the principle of stare decisis.

Which takes us to point number 2, misunderstanding of Miller v. US, 307 U.S. 174 (1939).

Judge Silberman, while the ignorant classes can say that the Second Amendment guarantees an individual right, the Supremes have said it only guarantees a collective right. Other courts understand this. You have the dubious distinction of writing an opinion which contradicts this rather large corpus of decisions which take the collective right position.

United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 122 S. Ct. 2362 (2002) isn't really an exception since the court there was sensible enough to use their opinion as a soap box for the idiotic "individual rights" argument you actually use! The Emerson court only spouted that shit as dicta, you actually use it as logic for your ruling.

I have serious wonders if you cheated to get through law school given the scholarship of your opinion. Did you actually read what you quote? I can expect that sort of ignorance from the hoi polloi, but not someone who is allegedly educated.

You would find that your sources contradict your opinion and support the dissent's opinion. I would much rather embarrass you in public by having you sue me for slander, but your quote From Cooley, which is short enough you should have read it:

SECTION IV. — THE RIGHT TO KEEP AND BEAR ARMS.

The Constitution. — By the Second Amendment to the Constitution it is declared that "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."

The amendment, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.[1]

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 elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or 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 the 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 doing so the laws of public order.

Standing Army. — A further purpose of this amendment is, to preclude any necessity or reasonable excuse for keeping up a standing army. A standing army is condemned by the traditions and sentiments of the people, as being as dangerous to the liberties of the people as the general preparation of the people for the defence of their institutions with arms is preservative of them.

What Arms may be kept. — The arms intended by the Constitution are such as are suitable for the general defence of the community against invasion or oppression, and the secret carrying of those suited merely to deadly individual encounters may be prohibited.[1]

-[1] 1 Tuck. Bl. Com., App. 300.

Summing up Cooley, the Right to keep and bear arms is predicated upon militia service which is a counterbalance to a standing army. In fact, a militia means there shouldn't be a standing army.

Have you seen the how much money is budgeted lately for the military each year. Silberman? Doesn't sound like the militia is a very vibrant institution.

Actually, Aymette v. State, 2 Humphreys 154 (Tenn. 1840) is a much better repudiation of your logic since the right to keep and bear arms relates to military service, that is training for militia duty.

The right to keep and bear arms as mentioned in the Second Amendment is not a personal one. Look to state constitutions for examples of how it would be written if it were intended to have been a personal right.

Which takes me to point number 4: silly logic.

Using your logic, I am allowed to keep machineguns, tanks Chemical weapons, and even nuclear weapons.

Take the recent US invasion of Iraq with it's shock and awe would a mere firearm do to repel such a foe? The same goes for a tyrant. I mean, People were, and are, armed to the teeth in Saddam Hussein's Iraq. He just used Chemical weapons on them.

What would repel a tyrant like that other than an H-bomb?

Now, should individuals be allowed such weaponry?

Anyway, it is obvious from Cooley and the post-Miller precedents that "With obvious purpose to assure the continuation and render possible the effectiveness of such forces (Militia set up under Article I, Section 8) the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

I mean, where does this stuff about not having standing armies come in? Does that make any sense to you? Did you miss that in what minimal research you did to write this?

What is the real agenda for trying to come up with an "individual right". I mean do you want to abolish the standing army in favour of a citizen's militia like what Switzerland had at one time? Does that really make any sense to you? Did you fail to think all this through?

Anyway, I have this H-bomb I need to register thanks to your categorising the right to keep arms "suitable for the general defence of the community against invasion or oppression" as an individual right.