15 December 2007

Yet More DC v. Heller

OK, I have an interest in this given a strong background in DC gun laws.

Although, I am a lot less bothered that the SCOTUS will listen to the masses and will not follow it's precedent in US v. Miller, 307 U.S. 174 (1939).

First thing is Miller, supra, is out there. While both sides argue about the applicability of this. I would say it is pretty well accepted in legal circles that the holding is:

The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

To summarise, the Second Amendment must be interpreted as a whole. the declaration, that is “A well regulated Militia, being necessary to the security of a free State", and the guarantee, the "right of the people to keep and bear Arms, shall not be infringed” bit, need to be interpeted as a whole. There is loads of legal doctrine behind this. For example, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), discusses how none of the language of the Constitution can be considered "surplusage". The Constitution was written in a considered fashion and what was written must be considered essential to its interpretation.

The Appellant (Heller) would like us to believe that the declaration is a superfluity. Additionally, he would appreciate it if the Miller decision were interpreted as looking to the nature of the firearm, when the court said "Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." Meaning that the court doesn't need to take this into account as the right is to ensure the effectiveness of the militia, which was set up under Article I, Section 8.

The gun is irrelevant! Trying to compare the Second Amendment to the other Amendments is silly. The Second Amendment is to ensure the Article I, Section 8 Militia is not disarmed.

I like to quote Patrick Henry:

9.1 Let me here call your attention to that part which gives the Congress power "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States—reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress."

9.2 By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither—this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory. Our situation will be deplorable indeed: nor can we ever expect to get this government amended, since I have already shown that a very small minority may prevent it, and that small minority interested in the continuance of the oppression.
Patrick Henry, Against the Federal Constitution, June 5, 1788

My guess is that there are at least five votes (Justices Stevens, Souter, Ginsburg, and Breyer, with either Kennedy or Alito possibly both) for the collective right. I am using the dissent in Printz v. United States), 521 U.S. 898 (1997), to predict the four votes to keep Miller. Alito stays consistent with his dissent in Rybar and holds the Collective right.

US v. Rybar, 103 F.3d 273, 286 (3d Cir.1996), recapped for those who missed it followed the collective right interpretation to the Second Amendment. Of course, There was a dissent in Rybar.

The dissenting judge's name: Samuel Alito.

Yes, this is the case which earned Alito the nickname "machinegun Sammy". Funny thing, Alito was silent about the collective right issue in his dissent and only used the US v. Lopez, 514 U.S. 549 (1995) Commerce clause issue.

What if Alito holds the collective rights interpretation of the Second Amendment? What if Alito beings along Roberts and Scalia? Not so crazy an idea. Scalia is a strong believer in stare decisis and upholding Heller would screw up a lot of legal opinions out there.

Scalia, while calling himself a textualist, defers to legislators and also doesn't like stirring up accepted legal doctrines. DC's gun laws were enacted under the home rule statute in 1976: Legally legislated. Additionally, there are loads of decisions out there interpreting the Second Amendment as enabling the militia, that is now the National Guard.

Sure, the masses believe the Second Amendment can be divorced from the "well-regulated militia" language, giving the "people" "a right to keep and bear arms", but that type of logical thinking is fallacious. It's called Argumentum ad populum (argument or appeal to the public). This is the fallacy of trying to prove something by showing that the public agrees with you. Also known as Argumentum ad numerum (argument or appeal to numbers). This fallacy is the attempt to prove something by showing how many people think that it's true. But no matter how many people believe something, that doesn't necessarily make it true or right. Example: "At least 70% of all Americans support restrictions on access to abortions."

Well, maybe 70% of Americans are wrong!

Live with it!

No comments: