29 January 2008

The Solictor General's new clothes

Well, I love to keep pointing out that "the masses are asses" as one of my tutors at uni loved to rub my nose in. On the other hand, the popular belief that the Second Amendment allows for an individual right is a load of dog poop. That is all the Solicitor General's opinion means.

First off, finding an individual right goes against the Supreme Court's own precedent. If Chief Justice Robert's doesn't have his stuff together to say that it's settled law that the Second Amendment applies only to "Well regulated militias" being those set up under Article I, Section 8, then maybe I SHOULD be chief justice. The only people it isn't settled law in are the ignorant or the dishonest, which most of the "Standard Model Scholars" such as Tribe, Volokh, Levinson, et al fall into in my opinion. Come on, folks, you have to say WHAT the law is, not what YOU WANT IT TO BE!

Second off, there have been about 60 cases holding that the Second Amendment relates to Article I, Section 8. This is just a guess so I don't really want the nitpicking wankers to start saying there were 48 or 127.230707609 cases. But, pretty much up until Emerson and Parker, the rulings were that the right belongs to the militia. In fact, U.S. v. Sandidge, 520 A.2d 1057 (D.C.), cert. denied, 108 S.Ct. 193 (1987) was the controlling case in DC up until Paker v. DC and it held that the Second Amendment only applied to the National Guard. That means that Sandidge was controlling precedent for 20 years!

Third off, even if you think that Heller broke new ground, it didn't really say that guns couldn't be regulated, but the upshot of saying there is an individual right will mean there will be a flood of litigation about what that right means. It seems everybody has forgotten John Walker Lindh, the US Taliban bloke, who used Ashcroft's pronouncement to fight his charges.

He was only exercising his Second Amendment rights there.

Now, I have a client named Mohammad who was caught with a loaded AK-47 near an International Airport. I can use the Second Amendment to argue that he shouldn't be charged. After all, he didn't go hunting intercontinental jumbo jet airliners. At least, not that time. Isn't it his right to carry a loaded AK-47 near the airport? Ditto, the Chaps who wanted to have a sniper challenge at Fort Dix. I mean, they just took videos of themselves, they weren't shooting soldiers.

Isn't that bearing arms? Now, doesn't arms also mean things like rocket launchers and guided missiles? I mean "arms control" isn't about handguns. Maybe, Mr. Mohammad will want to exercise his right to use a stinger on a jet airliner. What would stop him then?

Of course, I am hearing that "sober second thoughts of practicing lawyers" is what took over and is causing the Administration to want to change it's position. Well, I am a criminal defence lawyer and I know what trouble a finding of an "individual right" will cause. It has been settled law, among the truly knowledgeable, that the Second Amendment protects a collective right for nearly 70 years, yet there have been a shitload of cases where people have tried to argue an individual right.

Now, think of how many cases will come about when it the Second Amendment is declared an individual right? The Fort Dix Six have just received the biggest gift they could imagine.

I'd like to think that the Judges on the Supreme Court will have enough sense to see the mess that would be created by declaring an individual right as well. The "Scholars" want to twist dicta to buttress their weak arguments against what is pretty much well settled case law, but they don't mention Adams v. Williams, 407 U.S 143, 150 -51 (1972) in their lists of Second Amendment cases. Is it because Justice Douglas said: "There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police" in his analysis of the Second Amendment?

Yep, That's William O. "Wild Bill" Douglas, my hero. Of course, I like him for saving the C&O Canal. He had a neat house as well.

But, the "Scholars" want to make an argument where one doesn't exist which is why they use dicta rather than holdings to buttress their argument. That's because the legal holdings are against them.

And, there is no good policy reason to change the law to find an individual right to own a firearm. Unless, you want to destroy this county by giving guns to criminals and terrorists. Although, that seems to be the objective of the RKBA crowd.

A point here, The Court would have to rethink US v. Bean, 537 U.S. 71 (2002) if they find an individual right. Since the holding was in opposition to an individual right. Bean was a felon who was precluded from owning a firearm. He petitioned the ATF to reinstate his "rights", but the ATF didn't have enough money (guess why!). SO, ATF didn't come to a decision. Bean wanted judicial relief, but the law didn't grant it without a decision. The problem here was that the Court was unanimous in its decision that Bean wasn't entitled to relief.

Now, if the Second Amendment guarantees an individual right, the court HAD to grant Bean relief.

But, I have been pointing out that US v. Rybar was a case that held the Second Amendment was a collective right. And, Justice Alito was one that panel.

Now, it's ridiculous to say that conservativism means one finds the Second Amendment to be an Individual right, because, Justice McReynolds who wrote US v.Miller has been described as the most reactionary of Justices. Judge Robert Bork has denounced what he calls the "NRA view" of the Second Amendment, something he describes as the "belief that the constitution guarantees a right to Teflon-coated bullets." Instead, he has argued that the Second Amendment merely guarantees a right to participate in a government militia.

Nor, does gun ownership mean one supports an individual right.

The problem is that the Government wants to please everyone, which it really shouldn't be doing. The RKBA crowd is not representative of the American people, or even gun owners. I know I don't condone the ability of prohibited people to acquire firearms because of the lack of serious firearms regulation, and I AM a gun owner!

Government should lead, not follow. I mean they aren't called "our leaders" for nothing.

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