Inspector Joe Fox formerly of the Philadelphia Police Department should learn to keep his trap shut.
First off, Politicians, government officials and editorial boards can use cops as a reason for better gun laws. In fact, if we are getting down to it, Politicians and government officials can use their own constituents as reasons for better gun laws. Since most everyone in Philadelphia is asking for better gun laws. Maybe you should get on the street and talk to the citizens of Philly, Joe. Oh, yeah, you pissed them off when you were serving as a cop.
But, what really gets me is, Joe, if the gun laws on the books are working: how come you guys can't get the guns off the streets? Is it because you are too busy at the Dunkin' Doughnuts near 1301 Filbert? I mean if the gun laws are so good, you should be able to get the guns off the streets.
If you can't it's because:
1) You can't do your job.
2) The gun laws on the books are shit.
Which is it, Joe, the gun laws, or you're a fuck up at your job???? Remember I pay your salary, boss. I'd prefer to have someone who is competent on the force than you if you can't piss without someone holding your dick.
Anyway, If the gun laws are working, how come kids show up at Philadelphia Schools toting Uzis? Fortunately, they didn't have the proper ammo or clip, but I remember Judge Gordon's face in A Court when that case went to court. Guns are arterially bleeding onto the streets of Philadelphia, which is something someone in your position should be aware.
You are aware of this, Joe?
Problem is that the word "technicalities" means to me, as a criminal defence attorney, that you aren't doing your job. You're fucking up the paperwork, Joe, which means those criminals are walking the streets. In other words, you and your crew are dumbfucks that can't write a complete sentence or understand multiple syllable words.
Either that, Or I am the smartest fucking dude on the planet. I can whip your ass in a cross examination, Joe, you'd be the babbling fuck you are with me grilling your ass. And the better part is it's in open court instead of online as my dog. So, you can say all sorts of shit about me being a coward, but if I am showing you off for the dumbshit you are after you swore an oath to almighty God that you would tell the truth.
Well. Think about that one.
So, you can blame everybody except the person with the real culpability, and that's you, Joe! And going out there and saying the crappy gun laws are enforceable, but your men just can't seem to enforce them only tells me you're all a bunch of total dumbfucks. Is that what you're saying, Joe?
If it isn't then, start working toward better gun laws and stop saying shit that isn't true.
But, you aren't doing your job, Joe. Your job is to see that the streets of Philly are safe. And saying the shit you do isn't doing your job. And that pisses me off as a taxpayer (BPT, NPT, School tax, excessive sales tax, etc.) in this town. fortunately, you're retired so I can't scream about getting you transferred to PPA.
I have to admit to doing some research on you since I can't believe someone who is a member of the Philadelphia Police Department could say the shit you did, Joe. But, I was told you were at one time a member of the force by more than a few serving officers. Of course, the cops I asked didn't have anything good to say about you.
Maybe YOU should spend some time with your men.
But, you're retired, and probably not too soon. You piss on Gary Skerski's and Chuck Cassidy's graves with that letter. I'd toss in Dan Faulkner as well for good measure. Be glad you're not on the streets of Philly, or it might be the cops' guns you need to watch out for, not the criminals. You might want to stay away from Philly.
Oh, yeah, you're at the Dunkin' Doughnuts across from City Hall. Stayin' safe from those guns we shouldn't worry about because the fairy godmother of Philly is making the streets safe through the crappy gun laws that are on the books.
But, getting shot at is one of the reasons it's hard to get people who want to be Philadelphia Cops.
So, I am hoping Johnny Doc wins the state senate seat from Fumo. Why? tougher gun laws. That would prove you're spouting shit, Joe. Johnny Doc wins sends a message that the people of Philly want stronger gun laws.
And not hearing the business as usual from Cops who have wet dreams about Frank Rizzo.
But, that's a whole 'nother story.
31 March 2008
Hallelujah !
A Message from John Cleese
To the citizens of the United States of America:
In light of your failure to nominate competent candidates for President of the USA and thus to govern yourselves, we hereby give notice of the revocation of your independence, effective immediately.
Her Sovereign Majesty Queen Elizabeth II will resume monarchical duties over all states, commonwealths, and territories (except Kansas, which she does not fancy). This means you will stop calling her the Queen of England - she's Queen of the United Kingdom i.e England, Scotland, Wales and Northern Ireland. Mistakenly calling her anything else is like calling George Bush, President of Texas.
Your new Prime Minister, Gordon Brown, will appoint a Governor for America without the need for further elections.
Congress and the Senate will be disbanded, and a questionnaire may be circulated next year to determine whether any of you noticed.
To aid in the transition to a British Crown Dependency, the following rules are introduced with immediate effect:
You should look up "revocation" in the Oxford English Dictionary.
1. Then look up aluminium, and check the pronunciation guide. You will be amazed at just how wrongly you have been pronouncing it.
2. The letter 'U' will be reinstated in words such as 'favour' , 'humour' and 'neighbour.' Likewise, you will learn to spell 'doughnut' without skipping half the letters, and the suffix -ize will be replaced by the suffix -ise.
Generally, you will be expected to raise your vocabulary to acceptable levels. (look up 'vocabulary').
3. Using the same twenty-seven words interspersed with filler noises such as " cool", "like" and "you know" is an unacceptable and inefficient form of communication.
There is no such thing as US English. We will let Microsoft know on your behalf. The Microsoft spell- checker will be adjusted to take account of the reinstated letter 'u' and the elimination of -ize.
4. July 4th will no longer be celebrated as a holiday and you will relearn your original national anthem, God Save The Queen.
5. You will learn to resolve personal issues without using guns, lawyers, or therapists. The fact that you need so many lawyers and therapists shows that you're not adult enough to be independent. Guns should only be handled by adults. If you're not adult enough to sort things out without suing someone or speaking to a therapist then you're not grown up enough to handle a gun.
6. Therefore, you will no longer be allowed to own or carry anything more dangerous than a vegetable peeler. A permit will be required if you wish to carry a vegetable peeler in public.
7. All American cars are hereby banned. They are crap and this is for your own good. When we show you German cars, you will understand what we mean.
8. All intersections will be replaced with roundabouts, and you will start driving on the left with immediate effect. At the same time, you will go metric with immediate effect and without the benefit of conversion tables. Both roundabouts and metrication will help you understand the British sense of humour.
9. The Former USA will adopt UK prices on petrol (which you have been calling gasoline)-roughly $10 per US gallon. Get used to it.
10. You will learn to make real chips. Those things you call French fries are not real chips, and those things you insist on calling potato chips are properly called crisps. Real chips are thick cut, fried in animal fat, and dressed not with catsup but with vinegar.
11. The cold tasteless stuff you insist on calling beer is not actually beer at all. Henceforth, only proper British Bitter will be referred to as beer, and European brews of known and accepted provenance will be referred to as Lager. South African beer is also acceptable as they are pound for pound the greatest sporting Nation on earth and it can only be due to the beer. They are also part of British Commonwealth - see what it did for them.
12. Hollywood will be required occasionally to cast English actors as good guys. Hollywood will also be required to cast English actors to play English characters.
Watching Andie McDowell attempt English dialogue in Four Weddings and a Funeral was an experience akin to having one's ears removed with a cheese grater.
13. You will cease playing American football. There is only one kind of proper football; you call it soccer. Those of you brave enough will, in time, be allowed to play rugby (which has some similarities to American football, but does not involve stopping for a rest every twenty seconds or wearing full Kevlar body armour like a bunch of nancies). Don't try Rugby - the South Africans and Kiwis will thrash you, like they regularly thrash us.
14. Further, you will stop playing baseball. It is not reasonable to host an event called the World Series for a game which is not played outside of America. Since only 2.1% of you are aware that there is a world beyond your borders, your error is understandable. You will learn cricket, and we will let you face the South Africans first to take the sting out of their deliveries.
15. You must tell us who killed JFK. It's been driving us mad.
16. An internal revenue agent (i.e. tax collector) from Her Majesty's Government will be with you shortly to ensure the acquisition of all monies due (backdated to 1776).
17. Daily Tea Time begins promptly at 4 pm with proper cups, never mugs, with high quality biscuits (cookies) and cakes; strawberries in season.
God save the Queen.
Only He can.
John Cleese
If only this were true!
To the citizens of the United States of America:
In light of your failure to nominate competent candidates for President of the USA and thus to govern yourselves, we hereby give notice of the revocation of your independence, effective immediately.
Her Sovereign Majesty Queen Elizabeth II will resume monarchical duties over all states, commonwealths, and territories (except Kansas, which she does not fancy). This means you will stop calling her the Queen of England - she's Queen of the United Kingdom i.e England, Scotland, Wales and Northern Ireland. Mistakenly calling her anything else is like calling George Bush, President of Texas.
Your new Prime Minister, Gordon Brown, will appoint a Governor for America without the need for further elections.
Congress and the Senate will be disbanded, and a questionnaire may be circulated next year to determine whether any of you noticed.
To aid in the transition to a British Crown Dependency, the following rules are introduced with immediate effect:
You should look up "revocation" in the Oxford English Dictionary.
1. Then look up aluminium, and check the pronunciation guide. You will be amazed at just how wrongly you have been pronouncing it.
2. The letter 'U' will be reinstated in words such as 'favour' , 'humour' and 'neighbour.' Likewise, you will learn to spell 'doughnut' without skipping half the letters, and the suffix -ize will be replaced by the suffix -ise.
Generally, you will be expected to raise your vocabulary to acceptable levels. (look up 'vocabulary').
3. Using the same twenty-seven words interspersed with filler noises such as " cool", "like" and "you know" is an unacceptable and inefficient form of communication.
There is no such thing as US English. We will let Microsoft know on your behalf. The Microsoft spell- checker will be adjusted to take account of the reinstated letter 'u' and the elimination of -ize.
4. July 4th will no longer be celebrated as a holiday and you will relearn your original national anthem, God Save The Queen.
5. You will learn to resolve personal issues without using guns, lawyers, or therapists. The fact that you need so many lawyers and therapists shows that you're not adult enough to be independent. Guns should only be handled by adults. If you're not adult enough to sort things out without suing someone or speaking to a therapist then you're not grown up enough to handle a gun.
6. Therefore, you will no longer be allowed to own or carry anything more dangerous than a vegetable peeler. A permit will be required if you wish to carry a vegetable peeler in public.
7. All American cars are hereby banned. They are crap and this is for your own good. When we show you German cars, you will understand what we mean.
8. All intersections will be replaced with roundabouts, and you will start driving on the left with immediate effect. At the same time, you will go metric with immediate effect and without the benefit of conversion tables. Both roundabouts and metrication will help you understand the British sense of humour.
9. The Former USA will adopt UK prices on petrol (which you have been calling gasoline)-roughly $10 per US gallon. Get used to it.
10. You will learn to make real chips. Those things you call French fries are not real chips, and those things you insist on calling potato chips are properly called crisps. Real chips are thick cut, fried in animal fat, and dressed not with catsup but with vinegar.
11. The cold tasteless stuff you insist on calling beer is not actually beer at all. Henceforth, only proper British Bitter will be referred to as beer, and European brews of known and accepted provenance will be referred to as Lager. South African beer is also acceptable as they are pound for pound the greatest sporting Nation on earth and it can only be due to the beer. They are also part of British Commonwealth - see what it did for them.
12. Hollywood will be required occasionally to cast English actors as good guys. Hollywood will also be required to cast English actors to play English characters.
Watching Andie McDowell attempt English dialogue in Four Weddings and a Funeral was an experience akin to having one's ears removed with a cheese grater.
13. You will cease playing American football. There is only one kind of proper football; you call it soccer. Those of you brave enough will, in time, be allowed to play rugby (which has some similarities to American football, but does not involve stopping for a rest every twenty seconds or wearing full Kevlar body armour like a bunch of nancies). Don't try Rugby - the South Africans and Kiwis will thrash you, like they regularly thrash us.
14. Further, you will stop playing baseball. It is not reasonable to host an event called the World Series for a game which is not played outside of America. Since only 2.1% of you are aware that there is a world beyond your borders, your error is understandable. You will learn cricket, and we will let you face the South Africans first to take the sting out of their deliveries.
15. You must tell us who killed JFK. It's been driving us mad.
16. An internal revenue agent (i.e. tax collector) from Her Majesty's Government will be with you shortly to ensure the acquisition of all monies due (backdated to 1776).
17. Daily Tea Time begins promptly at 4 pm with proper cups, never mugs, with high quality biscuits (cookies) and cakes; strawberries in season.
God save the Queen.
Only He can.
John Cleese
If only this were true!
28 March 2008
Why do you think they call it dope?
At another preliminary hearing today when the topic of street heroin named "white house" came up.
They say you're more out of it after you've had a hit than "Dubious" ("Dubya" Bush).
Partly true. Well, the last part may be true, but I made it up.
They say you're more out of it after you've had a hit than "Dubious" ("Dubya" Bush).
Partly true. Well, the last part may be true, but I made it up.
27 March 2008
More on Justice Scalia's comment about Scottish arms.
The 1746 Act of Proscription (19 Geo. 2, c. 39) banned more than just Scottish arms, it banned wearing of the Kilt. Of course, had the Scotsman been loyal to King George the Second, AKA the Kraut, they were still able to wear the kilt and bear arms (e.g., the Black Watch). It was basically an extension of the Dress Act of 1746 (19 George II, Chap. 39, Sec. 17, 1746).
Anyway, what brought this about was that I was thinking about the fact that Highlanders never wore the kilt when they fought. No, I am not joking. As one friend pointed out, just think about a few hundred highlanders chasing you with swords and no kilt on. Part of the reason for their success, I bet you'd run too if you were being chased by THAT!
I wish I had known Justice Scalia would ask questions about this. If I had I would have liked to have argued the case wearing formal highland dress. This is especially true since my family were Jacobites.
"Justice Scalia, the British had reasons for barring the highlanders and Catholics from bearing arms. This was due to the Jacobite Risings by the Highlanders between 1689 and 1746 where they attempted to restore the Stuart Monarchy. The Catholics were seen to be working against the established order due to religious wars, e.g., the Civil War."
Anyway, I have attached a picture of me bearing arms. In this case, it is a two handed claymore sword. I was holding a targe and claymore broadsword in the previous post on this topic. So, I have nothing against "keeping and bearing arms" as long as it is within a well regulated militia, such as my Pennsylvania Loyalist Highlanders.
One does not "bear arms" for private purposes. One bears them for the common defence. I bear my arms in service of my monarch: Queen Elizabeth the First (She's the First in Scotland).
The state has an interest in seeing who bears arms and that they don't bear arms in detriment of public order.
When one takes off the kilt though, one is baring something totally different.
26 March 2008
Maybe an individual right isn't that bad an idea!
I was in a preliminary hearing today where several gun charges were raised in relation to a drug dealer. For the most part, they were possession charges: such as not having a permit for a firearm. Now, the gun was in a place of business. Sure, the business was selling drugs, but he has to protect his business!
Amusing aside, there was the issue of a business card and I was imagining something along the lines of "Kwame Johnson: drug dealer to scumbags".
Now, once an individual right is announced, these gun charges can be fought. In fact, they should be fought anyway since the State constitution provides: The right of the citizens to bear arms in defense of themselves and the State shall not be questioned. I mean what the hell is a law that prevents drug dealers from having guns doing on the books!?!?!?!?
More guns for criminals! More work for lawyers!
Yeah!
Amusing aside, there was the issue of a business card and I was imagining something along the lines of "Kwame Johnson: drug dealer to scumbags".
Now, once an individual right is announced, these gun charges can be fought. In fact, they should be fought anyway since the State constitution provides: The right of the citizens to bear arms in defense of themselves and the State shall not be questioned. I mean what the hell is a law that prevents drug dealers from having guns doing on the books!?!?!?!?
More guns for criminals! More work for lawyers!
Yeah!
Heller--Individual Right? Again, not so fast!
I was googling "Second Amendment military budget" and found this piece by Akhil Reed Amar where he admits that the Second Amendment doesn't contain the right to armed self-defence. But he tries to make an argument that other provisions of the Constitution do, namely the ninth and fourteenth Amendments. He is making an analogy to the right to privacy and the Roe v. Wade. Maybe he's been reading these blogs, or maybe I am reading the justices correctly.
Nice one, Akhil, but once you get away from the right to keep and bear arms and it gets even more tenuous. First off, we have to deal with the concept of self-defence as it is in legal doctrine in which deadly force is the last resort. Additionally, as I have pointed out other common law jurisdictions do not allow firearms for self-defence. In fact, self-defence items can be proscribed by law. Otherwise, we do indeed open up a Pandora's box as that means the laws on brass knuckles, coshes, switchblades, and other items would be up for grabs.
Of course, you don't have the terrorists and nuclear weapons issue, but you do get involved in what weapon is reasonable. Additionally, since deadly force is the last resort, deadly weapons such as firearms are disfavoured. The statistics for the cost of gun violence would be even more relevant than they are now in terms of how much the medical treatment of gunshot victims costs society.
So, one can attempt to claim a right to a firearm for self-defence, but the less likely it is that it will be found the further you go from actual constitutional language. As I pointed out in my post on constructionism, if it ain't in the Constitution, it doesn't exist. And in the case of firearms, it makes no sense to try and put them into a constitutional framework.
Certainly, there are more items that cause death than firearms, such as cars or swimming pools. But firearms are deadly if used properly, where the other items are deadly only if improperly used. There is a use-benefit analysis that comes in here. For example, the most dangerous act is to cross the street. On the other hand, are we going to prohibit people from walking? No, we have safety standards and laws that address that issue. So, swimming pools may cause more deaths than guns, but how many people use swimming pools who don't have injuries to reach those numbers of deaths?
On the other hand, cigarette smoking has been greatly regulated since the costs to society in terms of public health are phenomenal. Likewise, it makes sense that firearms are strongly regulated as well since the cost of misuse to society is another strain to the budget.
But it's good that people are beginning to look elsewhere to try and justify gun ownership besides the Second Amendment. Unfortunately, its a lot far too late. The "pro-gun" organisations should have been working toward keeping rural areas rural by fighting sprawl. When the countryside goes, so does shooting sports. They could also have worked toward fighting crime rather than enabling it by weakening gun laws.
So, the Second Amendment may become a dead letter for "gun rights", but it obviously won't be a wake up call. This is good. Since the more the "gun rights" crowd alienate the rest of us, the easier it will be to get strong gun laws enacted. People will question the "pro-gun" movement even more if it becomes public that they have been lied to by a special interest which has not worked in the public interest.
Nice one, Akhil, but once you get away from the right to keep and bear arms and it gets even more tenuous. First off, we have to deal with the concept of self-defence as it is in legal doctrine in which deadly force is the last resort. Additionally, as I have pointed out other common law jurisdictions do not allow firearms for self-defence. In fact, self-defence items can be proscribed by law. Otherwise, we do indeed open up a Pandora's box as that means the laws on brass knuckles, coshes, switchblades, and other items would be up for grabs.
Of course, you don't have the terrorists and nuclear weapons issue, but you do get involved in what weapon is reasonable. Additionally, since deadly force is the last resort, deadly weapons such as firearms are disfavoured. The statistics for the cost of gun violence would be even more relevant than they are now in terms of how much the medical treatment of gunshot victims costs society.
So, one can attempt to claim a right to a firearm for self-defence, but the less likely it is that it will be found the further you go from actual constitutional language. As I pointed out in my post on constructionism, if it ain't in the Constitution, it doesn't exist. And in the case of firearms, it makes no sense to try and put them into a constitutional framework.
Certainly, there are more items that cause death than firearms, such as cars or swimming pools. But firearms are deadly if used properly, where the other items are deadly only if improperly used. There is a use-benefit analysis that comes in here. For example, the most dangerous act is to cross the street. On the other hand, are we going to prohibit people from walking? No, we have safety standards and laws that address that issue. So, swimming pools may cause more deaths than guns, but how many people use swimming pools who don't have injuries to reach those numbers of deaths?
On the other hand, cigarette smoking has been greatly regulated since the costs to society in terms of public health are phenomenal. Likewise, it makes sense that firearms are strongly regulated as well since the cost of misuse to society is another strain to the budget.
But it's good that people are beginning to look elsewhere to try and justify gun ownership besides the Second Amendment. Unfortunately, its a lot far too late. The "pro-gun" organisations should have been working toward keeping rural areas rural by fighting sprawl. When the countryside goes, so does shooting sports. They could also have worked toward fighting crime rather than enabling it by weakening gun laws.
So, the Second Amendment may become a dead letter for "gun rights", but it obviously won't be a wake up call. This is good. Since the more the "gun rights" crowd alienate the rest of us, the easier it will be to get strong gun laws enacted. People will question the "pro-gun" movement even more if it becomes public that they have been lied to by a special interest which has not worked in the public interest.
25 March 2008
Interesting ignorance
I am amazed at the amount of people charged with enforcing the gun laws in this city are ignorant of the significance of DC v. Heller. Yet another DA has admitted he didn't know about the case, but he opined that lax gun laws do indeed feed the amount of guns on the black market. That wasn't really news to me given my experience.
On the other hand, there are a significant amount of people outside the District with a stake in seeing that DC's gun laws are upheld. In my opinion, by a recognition of stare decisis which means a reiteration of the "collective right" standard. Even if one wishes to say that the Second Amendment is an "individual right" that right is tied into the relationship to the desire and ability to preserve a well regulated militia, not for personal purposes. Dellinger was remiss in citing to the Swiss example where the use of the service weapon for any non-national defence purpose is subject to militiary penalty.
The chief justice is quite correct about coming up with an intricate standard and none is needed if precedent is followed. Does the law impare militia efficacy? No, then it's valid. That means that a total gun ban is more than reasonable under the Second Amendment if it doesn't impare militia efficacy.
Self-defence is not a constitutionally protected "right" and the Second Amendment should not be extended to include that concept.
Additionally, the term "people" is a collective one. It is a Synecdoche which is a term denoting a general class of thing is used to refer to a smaller, more specific class. It is a figure of speech. In this case, it refers back to the militia. Anyway, the term "people" is not a singular noun, but a collective one.
Ignorantia juris non excusat. Unfortunately, there are people out there who have positions of power, but lack the knowledge to adaquately use that power.
It ain't what you know, but who you know.
On the other hand, there are a significant amount of people outside the District with a stake in seeing that DC's gun laws are upheld. In my opinion, by a recognition of stare decisis which means a reiteration of the "collective right" standard. Even if one wishes to say that the Second Amendment is an "individual right" that right is tied into the relationship to the desire and ability to preserve a well regulated militia, not for personal purposes. Dellinger was remiss in citing to the Swiss example where the use of the service weapon for any non-national defence purpose is subject to militiary penalty.
The chief justice is quite correct about coming up with an intricate standard and none is needed if precedent is followed. Does the law impare militia efficacy? No, then it's valid. That means that a total gun ban is more than reasonable under the Second Amendment if it doesn't impare militia efficacy.
Self-defence is not a constitutionally protected "right" and the Second Amendment should not be extended to include that concept.
Additionally, the term "people" is a collective one. It is a Synecdoche which is a term denoting a general class of thing is used to refer to a smaller, more specific class. It is a figure of speech. In this case, it refers back to the militia. Anyway, the term "people" is not a singular noun, but a collective one.
Ignorantia juris non excusat. Unfortunately, there are people out there who have positions of power, but lack the knowledge to adaquately use that power.
It ain't what you know, but who you know.
Barely has the dust settled...
And SCOTUS is going to hear its first felon in possession case. well, actually it's a challenge to the West Virginia domestic violence statute, but it's the opening salvo in a barrage that will seem like the Battle of the Somme fought with hydrogen bombs.
The problem is that changing the status quo regarding the Second Amendment, especially by setting up some sort of standard of review, will place this issue into a state of flux. I am not sure of where the Court will go in regard to the issue of whether self-defence should be added to the Second Amendment. Justice Roberts did make this comment:
CJ Roberts makes a comment a little later on about the First Amendment picking up baggage over time. Now, adding concepts to the Second Amendment which aren't there and announcing standards will indeed create baggage. Highly unnecessary baggage as far as public safety is concerned. And while the Constitution didn't mention self-defence it did mention insuring domestic tranquility and promoting the general welfare, which means it would be against the Constitution to find an individual right to firearms given the cost to society.
At this point, I plan on using the individual right to keep and bear arms in my criminal practise. Mr. Mohammad, my AK-47 toting client may benefit from this sort of decision. As will other criminals, which explains why the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights. Of course, I agree with Douglas Berman that an individual right means that criminals and terrorists are entitled to guns.
After all, I consider Washington, Hamilton, and the rest of that pack of traitors to be terrorists. They terrorised law abiding British American citizens to either leave home or support their treachery.
So, indeed, Al-queda is entitled to arms whether that be a handgun or a weapon of mass destruction if there is an individual right to keep and bear arms under the Constitution.
The problem is that changing the status quo regarding the Second Amendment, especially by setting up some sort of standard of review, will place this issue into a state of flux. I am not sure of where the Court will go in regard to the issue of whether self-defence should be added to the Second Amendment. Justice Roberts did make this comment:
Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these -- how this restriction and the scope of this right looks in relation to those?
I'm not sure why we have to articulate some very intricate standard.
CJ Roberts makes a comment a little later on about the First Amendment picking up baggage over time. Now, adding concepts to the Second Amendment which aren't there and announcing standards will indeed create baggage. Highly unnecessary baggage as far as public safety is concerned. And while the Constitution didn't mention self-defence it did mention insuring domestic tranquility and promoting the general welfare, which means it would be against the Constitution to find an individual right to firearms given the cost to society.
At this point, I plan on using the individual right to keep and bear arms in my criminal practise. Mr. Mohammad, my AK-47 toting client may benefit from this sort of decision. As will other criminals, which explains why the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights. Of course, I agree with Douglas Berman that an individual right means that criminals and terrorists are entitled to guns.
After all, I consider Washington, Hamilton, and the rest of that pack of traitors to be terrorists. They terrorised law abiding British American citizens to either leave home or support their treachery.
So, indeed, Al-queda is entitled to arms whether that be a handgun or a weapon of mass destruction if there is an individual right to keep and bear arms under the Constitution.
24 March 2008
US Air pilot and Gun
Well, I haven't flown any US Airlines since the FFDO program began. Finally, one of these nitwits discharges his gun in a plane. And it seems this "well-trained" clown was mishandling his gun. It's one thing to fuck around with a gun on the ground, but another to do it in a pressurised cabin of an airliner.
As one person pointed out, one wrong shot with a .40 and the whole plane comes down. A bullet through the wind screen or the control panel of a jet traveling at over 500 miles per hour means an instantly killed crew and, a few minutes later, several hundred dead passengers. Well, the experts say a gunshot wouldn't be likely to cause the kind of damage that would lead immediately to a crash.
O.K., maybe not immediately, but maybe it might take a little while longer.
Anyway, a hijacker of the 9/11 ilk isn't going to be put off by some middle-aged jet jockey with a gun. In fact, I am pretty sure al-queda would train them to take out at least one of these guys. FYI, al-queda doesn't just rush into action.
Furthermore, al-queda is probably done with hijacking jet airliners. They can take them out of the sky with a Man-portable air-defense systems (MANPADS), such as a SA-18 Grouse or stinger, if they want to drop one as well. It's been done before, and I can see al-queda as being more likely to do that than hijack again. Rumours are that TWA flight 800 was taken out by a MANPAD. MANPADS are far more of a threat than hijacking these days.
Imagine what would happen if al-queda took out a few US airliners during a period of time. Especially if that happened in US airspace!
Are people really that stupid as to think a handgun will stop someone with a guided missile?
I guess this is just another way of feeling like you're something when the US rolled over and played dead after 9/11. Personally, it doesn't make me feel safe having any loaded weapons in the cockpit. Especially when this country is doing zip to really address the terrorism issue.
As one person pointed out, one wrong shot with a .40 and the whole plane comes down. A bullet through the wind screen or the control panel of a jet traveling at over 500 miles per hour means an instantly killed crew and, a few minutes later, several hundred dead passengers. Well, the experts say a gunshot wouldn't be likely to cause the kind of damage that would lead immediately to a crash.
O.K., maybe not immediately, but maybe it might take a little while longer.
Anyway, a hijacker of the 9/11 ilk isn't going to be put off by some middle-aged jet jockey with a gun. In fact, I am pretty sure al-queda would train them to take out at least one of these guys. FYI, al-queda doesn't just rush into action.
Furthermore, al-queda is probably done with hijacking jet airliners. They can take them out of the sky with a Man-portable air-defense systems (MANPADS), such as a SA-18 Grouse or stinger, if they want to drop one as well. It's been done before, and I can see al-queda as being more likely to do that than hijack again. Rumours are that TWA flight 800 was taken out by a MANPAD. MANPADS are far more of a threat than hijacking these days.
Imagine what would happen if al-queda took out a few US airliners during a period of time. Especially if that happened in US airspace!
Are people really that stupid as to think a handgun will stop someone with a guided missile?
I guess this is just another way of feeling like you're something when the US rolled over and played dead after 9/11. Personally, it doesn't make me feel safe having any loaded weapons in the cockpit. Especially when this country is doing zip to really address the terrorism issue.
How to take a gun
How To Take A Gun! - Watch the best video clips here
No, I am not being macho.
television images where criminals meekly surrender at the mere sight of a handgun do not represent reality. In fact, police officershave their service weapons turned against them by suspects far too often. One study found that 21 percent of officers killed with a handgun were shot with their own service weapon.
You can't effectively use a pistol for defence if you aren't in shape or properly trained. Or a drunken pilot.
More RKBA illogic
I read that the "gun control" crowd is the "guns for criminals" crowd because they prevent law abiding citizens from having guns. That's a lot of a distraction from reality there. I mean John Allen Muhammad, Steven Kazmierczak, and Seung-Hui Cho bought their guns legally, not through the black market.
Gun enthusiasts often claim that there is no link between legal ownership of guns and gun crime - legal guns are legal, illegal guns are illegal and, according to them, never the twain shall meet.
The problem is that guns are the only commodity that start out legal and then end up on the black market. Some are bought directly from a gun dealer (above), some enter through straw purchase/traffickers, and others are stolen. To understand how guns are acquired on the illicit market, we must also look at the legal trade, since the majority of guns on the black market began as part of the legal trade. In the United States alone, approximately 500,000 small arms enter the black market every year due to theft from private citizens.
Legal gun ownership creates a pool of weapons from which crime weapons can be obtained through theft and other means such as fraud. The more guns in circulation, the larger the pool of guns that can end up in the hands of criminals. This is especially true if the penalties for selling to disqualified persons are non-existant, or weak enough that they could be non-existant. Also, we have seen the Government give immunity from lawsuits to gun dealers who sell to disqualified persons.
It's funny how we hear the "Guns for criminals" crowd scream about enforcing the gun laws on the books (which they have structured to be ineffective) on one hand, yet work to repeal them or make them weaker on the other. More than enough times I have pointed out that a finding of an individual right in DC v. Heller will lead to litigation regarding existing firearms laws. It is not strong guns laws that put guns in the hands of criminals, but weak and ineffective ones.
DC's experience shows that having strong gun laws in one jurisdiction while another jurisdiction has weak laws will indeed lead to criminals having guns. DC's crime guns come from outside DC and from legal sources. Crime guns don't come from outer space. Ambiguous or ineffective domestic laws concerning the purchase of small arms contribute to the quantity of guns available on the black market. For example, "straw purchasers" can buy several weapons at once and then illegally resell them if there are no limits to how many guns a person may buy at one time. These illegal weapons are often sold across state lines from a State with lax regulations to one with quite strict gun laws.
On the other hand, the "guns for criminals" crowd refuses to allow for the tools to prevent guns from falling into the hands of criminals. Even simple actions like reporting stolen guns are fought as infringing upon the rights of "law abiding" citizens. The problem is that "stolen guns" find their way into the hands of criminals. In fact, stolen guns by definition have entered the black market. The Tiahrt amendment blocks law enforcement from accessing useful statistics regarding the source of illegal firearms.
Sorry, by doing everything in their power the alphabet soup of "gun rights" organisations (NRA, SAF, GOA, CCRKBA, SAS, etcetera) have ensured a steady source of guns for criminals. This is a pool which won't dry up anytime soon even if SCOTUS does the correct thing and upholds the Miller standard.
Unfortunately, instead of talking about gun responsibilities and enforcing gun laws which had teeth, the "gun rights" organisations have been working to eliminate gun laws. This means more guns for criminals. Gun owners would have been far better served had the talk been of gun responsibilities.
So, to be quite frank with you, crime guns start out as legal guns. We have to look at who is responsible for blocking any serious solution to this problem until the flow of legal guns into the black market is stopped.
Gun enthusiasts often claim that there is no link between legal ownership of guns and gun crime - legal guns are legal, illegal guns are illegal and, according to them, never the twain shall meet.
The problem is that guns are the only commodity that start out legal and then end up on the black market. Some are bought directly from a gun dealer (above), some enter through straw purchase/traffickers, and others are stolen. To understand how guns are acquired on the illicit market, we must also look at the legal trade, since the majority of guns on the black market began as part of the legal trade. In the United States alone, approximately 500,000 small arms enter the black market every year due to theft from private citizens.
Legal gun ownership creates a pool of weapons from which crime weapons can be obtained through theft and other means such as fraud. The more guns in circulation, the larger the pool of guns that can end up in the hands of criminals. This is especially true if the penalties for selling to disqualified persons are non-existant, or weak enough that they could be non-existant. Also, we have seen the Government give immunity from lawsuits to gun dealers who sell to disqualified persons.
It's funny how we hear the "Guns for criminals" crowd scream about enforcing the gun laws on the books (which they have structured to be ineffective) on one hand, yet work to repeal them or make them weaker on the other. More than enough times I have pointed out that a finding of an individual right in DC v. Heller will lead to litigation regarding existing firearms laws. It is not strong guns laws that put guns in the hands of criminals, but weak and ineffective ones.
DC's experience shows that having strong gun laws in one jurisdiction while another jurisdiction has weak laws will indeed lead to criminals having guns. DC's crime guns come from outside DC and from legal sources. Crime guns don't come from outer space. Ambiguous or ineffective domestic laws concerning the purchase of small arms contribute to the quantity of guns available on the black market. For example, "straw purchasers" can buy several weapons at once and then illegally resell them if there are no limits to how many guns a person may buy at one time. These illegal weapons are often sold across state lines from a State with lax regulations to one with quite strict gun laws.
On the other hand, the "guns for criminals" crowd refuses to allow for the tools to prevent guns from falling into the hands of criminals. Even simple actions like reporting stolen guns are fought as infringing upon the rights of "law abiding" citizens. The problem is that "stolen guns" find their way into the hands of criminals. In fact, stolen guns by definition have entered the black market. The Tiahrt amendment blocks law enforcement from accessing useful statistics regarding the source of illegal firearms.
Sorry, by doing everything in their power the alphabet soup of "gun rights" organisations (NRA, SAF, GOA, CCRKBA, SAS, etcetera) have ensured a steady source of guns for criminals. This is a pool which won't dry up anytime soon even if SCOTUS does the correct thing and upholds the Miller standard.
Unfortunately, instead of talking about gun responsibilities and enforcing gun laws which had teeth, the "gun rights" organisations have been working to eliminate gun laws. This means more guns for criminals. Gun owners would have been far better served had the talk been of gun responsibilities.
So, to be quite frank with you, crime guns start out as legal guns. We have to look at who is responsible for blocking any serious solution to this problem until the flow of legal guns into the black market is stopped.
The Ultimate Vanity Press
Vanity presses are private publishers which allow one to "publish" a book usually at the author's expense. The term vanity comes from the fact that someone must be vain to publish in such a way. A desire to see his name in print. Anyway, I write this as my dog, so it's not really my name.
Well, I have mentioned that I do this blog for myself and there have been times I have received comments which I am glad that I did. On the other hand, I just disabled the comment feature. Mostly because it pisses me off to have the ignorant (the guns for criminals crowd) come and make idiotic comments. I have addressed a few of these comments in my posts, but I am not really keen on doing this.
Those really intent on contacting me can do so, but it requires a certain amount of intelligence and creativity. I know this may prevent Silda and myself from ever hooking up, but so it goes!
Alas, they say that do what you love and the money will follow, but I am still in debt. Anyway, defending criminals is not what I had anticipated doing in this lifetime. To quote John Mortimer, "It not the SW1 of the legal profession", which is something my mother can't get through her head. Like Rumpole, it seems like years before I get paid. Unlike Rumpole, I have never had my phone service cut off.
I can dream of a woman like Silda who didn't mind that Idiot earned less than she did, probably because it was in high profile positions. She might not look twice at someone with a first degree in medieval literature and languages though. Anyway, I am married which means that Silda (or a woman like her) has to remain one of those fantasies like finding the nebulous job that pays me 6-7 figures a year or winning the big lottery payoff.
I mean, a rainmaker may have less legal acumen than a first year law student, but he comes with some form of name. I know I've mentioned at least one of those idiots in my blog at one time or another and don't feel like naming any more names. Anyway, I try to have more free time in the day than I spend in court. Especially since the dog pisses on the carpet if I stay in court longer than 2 PM (14h00). That means forget the large firms, unless I can bring the dog. I am not that much of a name in the legal community to name that kind of term.
So for the crowd that says spend X on a legal education and you're still an idiot, when they come here and spout all sorts of legal inaccuracies. Yeah, well I earn $500 an hour and probably do better than you do working 10 hours (or less a week). People pay to have me represent them and for the most part are happy. There are always the whingers, but that's one of the drawbacks of the job.
I guess I am really doing this for myself. Anyway, it's pretty unlikely that my fairy godmother will show up through this blog and grant all my wishes. But she probably has my number if she did exist anyway. If it's meant to be, it will be
Que sera, sera!
Well, I have mentioned that I do this blog for myself and there have been times I have received comments which I am glad that I did. On the other hand, I just disabled the comment feature. Mostly because it pisses me off to have the ignorant (the guns for criminals crowd) come and make idiotic comments. I have addressed a few of these comments in my posts, but I am not really keen on doing this.
Those really intent on contacting me can do so, but it requires a certain amount of intelligence and creativity. I know this may prevent Silda and myself from ever hooking up, but so it goes!
Alas, they say that do what you love and the money will follow, but I am still in debt. Anyway, defending criminals is not what I had anticipated doing in this lifetime. To quote John Mortimer, "It not the SW1 of the legal profession", which is something my mother can't get through her head. Like Rumpole, it seems like years before I get paid. Unlike Rumpole, I have never had my phone service cut off.
I can dream of a woman like Silda who didn't mind that Idiot earned less than she did, probably because it was in high profile positions. She might not look twice at someone with a first degree in medieval literature and languages though. Anyway, I am married which means that Silda (or a woman like her) has to remain one of those fantasies like finding the nebulous job that pays me 6-7 figures a year or winning the big lottery payoff.
I mean, a rainmaker may have less legal acumen than a first year law student, but he comes with some form of name. I know I've mentioned at least one of those idiots in my blog at one time or another and don't feel like naming any more names. Anyway, I try to have more free time in the day than I spend in court. Especially since the dog pisses on the carpet if I stay in court longer than 2 PM (14h00). That means forget the large firms, unless I can bring the dog. I am not that much of a name in the legal community to name that kind of term.
So for the crowd that says spend X on a legal education and you're still an idiot, when they come here and spout all sorts of legal inaccuracies. Yeah, well I earn $500 an hour and probably do better than you do working 10 hours (or less a week). People pay to have me represent them and for the most part are happy. There are always the whingers, but that's one of the drawbacks of the job.
I guess I am really doing this for myself. Anyway, it's pretty unlikely that my fairy godmother will show up through this blog and grant all my wishes. But she probably has my number if she did exist anyway. If it's meant to be, it will be
Que sera, sera!
stolen guns
We never hear about how many guns are stolen from their owners in all this talk about the efficacy of handguns for self-defence. I am curious as to what the actual number is of guns stolen which end up in the hands of criminals. I asked the ATF agent I worked with if they kept statistics on this, but she told me that most traffickers say their guns are stolen.
By definition, stolen guns are available to criminals. I mean who the hell else is going to buy a hot gun other than a criminal? The guns for criminals crowd won't admit to straw purchases or want to prevent people like Steven Kazmierczak and Seung-Hui Cho from buying guns. No, they would rather deal with the aftermath of shootings than attempt at prevention. So, let's just deal with the issue of stolen guns.
Now, there are several thoughts on this. the first of which is that anything which can be taken away from you and ultimately used against you is a lousy tool for self-defence. Even more so if having that object means that you will become a target for crime.
The reason for sci-fi studies such as John Lott and Gary Kleck is that it is a no brainer that having a gun in the house makes it more likely that you may suffer gun injuries. I mean you can't suffer from injuries if you don't have a gun, unless you are hit by a bullet from your neighbour's gun. Likewise, guns aren't the best choice for self-defence if are likely likely to be stolen, or, worse, they make you a target for crime.
Actually, what is interesting is that the Lott and Kleck studies allegedly show people engaging in "criminal behaviour". So, we have most of the alleged defensive gun uses being made by criminals! That's why I am sort of hoping that SCOTUS does find an individual right since it WILL be guns for criminals time! More work for criminal defence attorneys and more criminals with guns on the streets.
So why does the NRA fight laws that require stolen guns are reported to the police? I mean that's rather a no brainer. The first thing I would do if i were robbed is report the crime to the police if only for insurance reasons. I know that gun stores report robberies. I believe they have to as part of their licensing requirements. On the other hand, this law is being fought for no apparent reason.
Unless, of course, this is indeed because the traffickers are saying that their guns are stolen once they turn up at a crime scene. personally, I think the owner should be charged in such an instance if he didn't report it to the police. Given the gun lock argument during the Heller oral arguments, this might not be an issue.
Even sillier are the laws that allow for people to keep guns in their cars. I had my car broken into a few weeks ago in what appeared to be a secure parking garage. And, as a criminal defence lawyer, I know that theft from auto is pretty hard to prosecute. Keeping guns in cars is one of the most idiotic thing to do. Why not hand out guns to criminals in the first place.
But then again, I now call the RKBA crowd "guns for criminals".
The problem is that there are no good statistics for how many guns are stolen. I mean really stolen, as opposed to someone who traffics saying his gun was stolen. The guns for criminals crowd don't want any good data out there regarding crime guns which means this data won't become available. I mean we have Tiahrt blocking gun trace data and the stolen gun data has never been available. Well, there is this little blurb which is pretty much useless:
Of course, this data doesn't adaquately reflect how many guns are stolen, just reported. And there should be better data available given this is the only source which the guns for criminals crowd will admit. On the other hand, the guns for criminals crowd might get caught feeding the illegal gun supply if they draw too much attention toward thefts.
By definition, stolen guns are available to criminals. I mean who the hell else is going to buy a hot gun other than a criminal? The guns for criminals crowd won't admit to straw purchases or want to prevent people like Steven Kazmierczak and Seung-Hui Cho from buying guns. No, they would rather deal with the aftermath of shootings than attempt at prevention. So, let's just deal with the issue of stolen guns.
Now, there are several thoughts on this. the first of which is that anything which can be taken away from you and ultimately used against you is a lousy tool for self-defence. Even more so if having that object means that you will become a target for crime.
The reason for sci-fi studies such as John Lott and Gary Kleck is that it is a no brainer that having a gun in the house makes it more likely that you may suffer gun injuries. I mean you can't suffer from injuries if you don't have a gun, unless you are hit by a bullet from your neighbour's gun. Likewise, guns aren't the best choice for self-defence if are likely likely to be stolen, or, worse, they make you a target for crime.
Actually, what is interesting is that the Lott and Kleck studies allegedly show people engaging in "criminal behaviour". So, we have most of the alleged defensive gun uses being made by criminals! That's why I am sort of hoping that SCOTUS does find an individual right since it WILL be guns for criminals time! More work for criminal defence attorneys and more criminals with guns on the streets.
So why does the NRA fight laws that require stolen guns are reported to the police? I mean that's rather a no brainer. The first thing I would do if i were robbed is report the crime to the police if only for insurance reasons. I know that gun stores report robberies. I believe they have to as part of their licensing requirements. On the other hand, this law is being fought for no apparent reason.
Unless, of course, this is indeed because the traffickers are saying that their guns are stolen once they turn up at a crime scene. personally, I think the owner should be charged in such an instance if he didn't report it to the police. Given the gun lock argument during the Heller oral arguments, this might not be an issue.
Even sillier are the laws that allow for people to keep guns in their cars. I had my car broken into a few weeks ago in what appeared to be a secure parking garage. And, as a criminal defence lawyer, I know that theft from auto is pretty hard to prosecute. Keeping guns in cars is one of the most idiotic thing to do. Why not hand out guns to criminals in the first place.
But then again, I now call the RKBA crowd "guns for criminals".
The problem is that there are no good statistics for how many guns are stolen. I mean really stolen, as opposed to someone who traffics saying his gun was stolen. The guns for criminals crowd don't want any good data out there regarding crime guns which means this data won't become available. I mean we have Tiahrt blocking gun trace data and the stolen gun data has never been available. Well, there is this little blurb which is pretty much useless:
Victims report to the Victim Survey that
handguns were stolen in 53% of the
thefts of guns. The FBI's stolen gun
file's 2 million reports include information
on ¾
1.26 million handguns (almost 60%)
470,000 rifles (22%)
356,000 shotguns (17%).
Of course, this data doesn't adaquately reflect how many guns are stolen, just reported. And there should be better data available given this is the only source which the guns for criminals crowd will admit. On the other hand, the guns for criminals crowd might get caught feeding the illegal gun supply if they draw too much attention toward thefts.
Silda, leave the jerk!
I was looking at youtube and came across this video
This guy is gaga for you. I mean "crawling down the throughway covered with cut glass to Albany just to stand in your shadow".
Wow!
Now, your name means something like armed warrior woman or teutonic warrior goddess and you're from NC. Why not go to Fort Bragg and hang out? I am sure there are loads of Officers who would worship you for being a "teutonic war goddess".
I mean I wish I had been in England when you where there in the early 80s and we could have hooked up. Naw, I was in the South Atlantic or someplace else nasty.
This guy is gaga for you. I mean "crawling down the throughway covered with cut glass to Albany just to stand in your shadow".
Wow!
Now, your name means something like armed warrior woman or teutonic warrior goddess and you're from NC. Why not go to Fort Bragg and hang out? I am sure there are loads of Officers who would worship you for being a "teutonic war goddess".
I mean I wish I had been in England when you where there in the early 80s and we could have hooked up. Naw, I was in the South Atlantic or someplace else nasty.
23 March 2008
Interesting thought
Elliott Spitzer and a Man gurning. Is Elliott Spitzer the NY state Gurning champion?
Yet another reason for his wife to leave him. She may do that if she sees this post.
Sorry, I have a problem with men like Spitzer who run off on supportive wives.
Tactical Nuclear Weapons Approved for American Consumers
http://www.avantnews.com/modules/news/article.php?storyid=256
Date 2006/3/14 8:44:12 | Topic: U.S.
By Ion Zwitter, Avant News Editor
Washington, D.C., October 9, 2021
Marking what may be the final passage in a series of groundbreaking weapons bills, Congress yesterday signed into law the Homeowners Fission Liberty Bill (H.R. 9985: To totally actualize the second amendment rights of all Americans), permitting the legal possession and use of tactical nuclear weapons for hunting and personal protection. While tactical nukes have been previously permitted under certain special conditions, the Homeowners Fission Liberty Bill for the first time extends that right to all American citizens.
"We've been waiting for this one a long time," said Sally Ack-Ack, spokesman for the NWMDA (National Weapons of Mass Destruction Association, formerly known as the NRA). "The steps have been slow and incremental, but now, thanks to this judicious and far-sighted law, we can finally take full advantage of the Second Amendment rights guaranteed us under the United States Constitution. No longer will we have to become a convenience store owner or an elementary school teacher just to get our mitts on some of this tasty ordnance."
The Second Amendment referred to by Ms. Ack-Ack reads: "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 was intended by its drafters to ensure states the right to raise an armed force to protect against popular insurrection in the absence of a standing army such as the National Guard.
Given the continued presence of standing armies at both the state and national level, the amendment, which even the most cursory historical analysis proves was never intended to provide individuals with the right to own weapons outside of the context of a government-regulated militia, is justly considered largely irrelevant today.
The Homeowners Fission Liberty Bill for the first time allows private citizens to safely, securely vaporize intruders, squirrels or fish "That's why this has been such an uphill climb," a delighted Ms. Ack-Ack said. "It's taken literally decades to get enough lawmakers to kind of ignore the first half of the amendment and just focus on the second half, but we've done it."
"Yippee," Ms. Ack-Ack added, tossing a legally-sanctioned live hand grenade in the air. Ms. Ack-Ack was unavailable for further comment.
Under intense pressure from organizations such as the NWMDA, the Republican-dominated Congress has successively enacted new laws and repealed restrictions on the individual possession and use of increasingly powerful weaponry over the past several decades.
These have included: the Screw Perforation law of 2009, which ruled that it was unconstitutional to prohibit incarcerated felons from carrying firearms while in prison; the Wide Open Arms law of 2012, which significantly broadened the definition of "arms" available for private use to include armor-piercing bullets, fully automatic weapons, flame throwers, howitzers, anti-tank weaponry, bunker-busters, land mines, plastic explosives and surface-to-air missiles, among others; the Bugs Don't Kill, People Do law of 2017, which further broadened the definition to include chemical and biological weapons for hunting and home protection; and finally the Homeowners Fission Liberty Bill, passed yesterday.
"We're obviously delighted with the passage of the Homeowners Fission Liberty Bill," said Lenny Fallaught, press spokesman for Lockheed Martin, a leading manufacturer of tactical nuclear weapons for both the military and consumers. "Not only does it further vindicate the rights of weapons enthusiasts around the nation, it also opens extensive new markets for our products."
Mr. Fallaught said Lockheed Martin hopes to sell up to 100,000 0.01-0.5 kiloton tactical nuclear weapons to American homeowners and hobbyists in the first year following the bill's passage.
"The only quibbles we have with the law as it stands now are the three-day waiting period, the cursory background check, and the yield restriction, which we find arbitrary and overly restrictive," Mr. Fallaught said. "The largest model we're allowed to sell won't do more than take out a couple of city blocks. That's really going to stick in the craw of some of the more gung-ho NWMDA members."
Date 2006/3/14 8:44:12 | Topic: U.S.
By Ion Zwitter, Avant News Editor
Washington, D.C., October 9, 2021
Marking what may be the final passage in a series of groundbreaking weapons bills, Congress yesterday signed into law the Homeowners Fission Liberty Bill (H.R. 9985: To totally actualize the second amendment rights of all Americans), permitting the legal possession and use of tactical nuclear weapons for hunting and personal protection. While tactical nukes have been previously permitted under certain special conditions, the Homeowners Fission Liberty Bill for the first time extends that right to all American citizens.
"We've been waiting for this one a long time," said Sally Ack-Ack, spokesman for the NWMDA (National Weapons of Mass Destruction Association, formerly known as the NRA). "The steps have been slow and incremental, but now, thanks to this judicious and far-sighted law, we can finally take full advantage of the Second Amendment rights guaranteed us under the United States Constitution. No longer will we have to become a convenience store owner or an elementary school teacher just to get our mitts on some of this tasty ordnance."
The Second Amendment referred to by Ms. Ack-Ack reads: "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 was intended by its drafters to ensure states the right to raise an armed force to protect against popular insurrection in the absence of a standing army such as the National Guard.
Given the continued presence of standing armies at both the state and national level, the amendment, which even the most cursory historical analysis proves was never intended to provide individuals with the right to own weapons outside of the context of a government-regulated militia, is justly considered largely irrelevant today.
The Homeowners Fission Liberty Bill for the first time allows private citizens to safely, securely vaporize intruders, squirrels or fish "That's why this has been such an uphill climb," a delighted Ms. Ack-Ack said. "It's taken literally decades to get enough lawmakers to kind of ignore the first half of the amendment and just focus on the second half, but we've done it."
"Yippee," Ms. Ack-Ack added, tossing a legally-sanctioned live hand grenade in the air. Ms. Ack-Ack was unavailable for further comment.
Under intense pressure from organizations such as the NWMDA, the Republican-dominated Congress has successively enacted new laws and repealed restrictions on the individual possession and use of increasingly powerful weaponry over the past several decades.
These have included: the Screw Perforation law of 2009, which ruled that it was unconstitutional to prohibit incarcerated felons from carrying firearms while in prison; the Wide Open Arms law of 2012, which significantly broadened the definition of "arms" available for private use to include armor-piercing bullets, fully automatic weapons, flame throwers, howitzers, anti-tank weaponry, bunker-busters, land mines, plastic explosives and surface-to-air missiles, among others; the Bugs Don't Kill, People Do law of 2017, which further broadened the definition to include chemical and biological weapons for hunting and home protection; and finally the Homeowners Fission Liberty Bill, passed yesterday.
"We're obviously delighted with the passage of the Homeowners Fission Liberty Bill," said Lenny Fallaught, press spokesman for Lockheed Martin, a leading manufacturer of tactical nuclear weapons for both the military and consumers. "Not only does it further vindicate the rights of weapons enthusiasts around the nation, it also opens extensive new markets for our products."
Mr. Fallaught said Lockheed Martin hopes to sell up to 100,000 0.01-0.5 kiloton tactical nuclear weapons to American homeowners and hobbyists in the first year following the bill's passage.
"The only quibbles we have with the law as it stands now are the three-day waiting period, the cursory background check, and the yield restriction, which we find arbitrary and overly restrictive," Mr. Fallaught said. "The largest model we're allowed to sell won't do more than take out a couple of city blocks. That's really going to stick in the craw of some of the more gung-ho NWMDA members."
From the Vatican
A second point, which has long been a grave concern for the Holy See, in the framework of criminal justice and crime prevention, is the sale and possession of firearms. This issue is closely related to building peace and is a key component of a truly sustainable economic and social development. Clearly, there is a link between crime and trafficking in firearms that feeds terrorism at national and international levels. A reduction in the availability of firearms will facilitate the establishment of peace and security. It will also contribute to channel money spent on trafficking weapons, into programmes for development.INTERVENTION BY THE HOLY SEE AT THE ELEVENTH UNITED NATIONS CONGRESS ON CRIME PREVENTION AND CRIMINAL JUSTICE (BANGKOK, 18-25 APRIL 2005)
Now, I am pretty sure that the Vatican didn't directly weigh in on the issue of DC v. Heller, but we have the above concern expressed by the them regarding crime prevention. Now, the "Conservative" block of the Justices (CJ Roberts, JJ Scalia, Kennedy, and Alito) are all Catholics and should keep in mind that this is an issue that the Church has expressed concern. I was hoping to find a way to contact the Pope and ask for some sort of comment on this case.
I would be pretty certain that he would side with Washington, DC in its desire to control firearms within its jurisdiction. I can't be certain to what extent the Church would go in its opinion. I found this article from the bishop of the Diocese of Juneau, Alaska about Catholicism and gun control. Of course, the Church points out that gun control is not a panacea, but only a part of a project which requires other social matters.
The "right" of self-defence is not a part of the Constitution and in no way should be part of the constitution. To say one has a right of first recourse to deadly force flies in the face of how the concept of self-defence was understood at the time of the Constitution:
THE defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cafes, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affrayd . For the law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say, to what wanton lengths of reapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence therefore as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away be the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor.Blacktone's Commentaries on the Law of England, PRIVATE WRONGS, BOOK III., Ch. 1
OK, it is well settled that the law of self-defence only allows the minimum of force allowed to stop the threat. Any excessive force (e.g., deadly force) can turn the defender in to an aggressor.
Now, I am looking at the St. George Tucker quote and wondering if it has been taken out of context and is actually a gloss on the Blackstone's piece on British Bill of Rights, NOT the US Bill of Rights. That would be the problem with taking quotes out of context, which I can imagine most people quoting this are doing. In fact, I think quite a bit of the "Scholarship" is people doing term searches and then just using the quote without concern of meaning or context (e.g., Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)). There are copies of Tucker's commentaries on line:
http://www.lonang.com/exlibris/tucker/index.html
http://www.constitution.org/tb/tb-0000.htm
I was able to find the whole gloss at Constitution.org, but it was chopped up so much that it was rather worthless. Indeed, it appeared to be more of a gloss on the British Bill of Rights. Compare and Contrast the British Bill of Rights to that of The US Bill of Rights seemed to have been a theme in the Heller arguments of which the advocates did a lousy job. As I said before, I am not sure what these people had been doing with their time.
Anyway, both Blackstone and St. George Tucker are rather long works which I doubt that many people have plowed through. Most of the time, Tucker is just updating Blackstone and trying to make it applicable to the US experience, especially post-rebellion. Given that the only print copy of Tucker costs US$450, I don't see too many people actually buying a copy and reading it! And given the cite for the Tucker quote: St. George Tucker, Blackstone's Commentaries 1:App. 300, he may actually be discussing the British Bill of Rights. I would also add that Tucker was not a party to the Constitutional debates, which only means that this is his opinion and definitely not legal authority regarding the Second Amendment.
On the other hand, I am really not here to discuss Blackstone, Tucker, or the "right of self-defence" which is not a Constitutional concept, but that the Vatican has expressed an opinion that firearms should be regulated. The concept of Self-defence has no requirement that firearms be made available. In fact, it has the requirement that only the minimum of force needed to stop the threat is used. The Catholic church talks about respecting life and the Constitution says that life cannot deprived without due process of law. To constitutionally sanction deadly force in self-defence flies in front of all that is proper.
There is no reason to place the "right of self-defence" within the Constitution. On the other hand, there are more than enough reasons to ensure that legislatures can regulate firearms without having to fear being second guessed by the court system.
22 March 2008
Why none of the "public interest groups" want a definitive answer on Heller.
Quite frankly, if the SCOTUS does the sane and sensible thing by reiterating US v. Miller in idiot proof, plain English, then there will be an end to the interminable fund raising letters, e-mails, etcetera I receive. Not to mention the road will be indeed cleared for the possibility of a gun ban. Perhaps we will see much needed talk of gun responsibilities, rather than fictitious "gun rights".
On the other hand, finding "an individual right" outside of militia service will guarantee that there will be loads of litigation. We'll see loads more trash written about the "individual right". It'll be the gravy train for "Second Amendment" lawyers and scholars. Someone reading these blogs might offer me a lucrative job, especially if whatever opinion generated is not unanimous.
On the other hand, probably not since I would much prefer that my real Second Amendment right of being free from standing armies were implemented rather than some nonsensical right which never was intended to be part of the whole shebang. I would want to see an end to this and make the Second Amendment the dead letter it is for firearms ownership once and for all.
To be quite honest, I don't mind expanding rights in a Roe v. Wade fashion if it truly impinges upon something which affects only a person and his/her personal life. I do mind when the right leads to high social costs which is undeniable about "gun violence".
The RKBA crowd has a sticker which says "fear the government that fears your gun".
I say "fear the government which tells you how to run your personal life and doesn't care about the welfare of its citizens".
I don't want the government telling someone that she can or cannot have children. Worse, forcing children into this world without parents who want them. Especially if that government is unwilling to shoulder the burden of raising those children. Even more so when it is all too willing to pay to incarcerate those children rather than pay to properly educate them.
The government has no business telling me what I should believe as far as religion goes. Even more so since the Constitution says that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States" and that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." That means public officials should keep their arses out of proselytising.
I agree with Justice McReynolds when he said the liberty guaranteed by the Due Process Clause of the Fourteenth Amendment included an individual's right "to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his conscience, and generally to enjoy privileges, essential to the orderly pursuit of happiness by free men."
This means that I can do what I will if it doesn't lead to harming others. Unfettered firearms ownership does harm others. The cost of gun violence in terms of law enforcement, legal process, health care, etcetera is astronomical. Firearm ownership also makes no sense in a city for a multitude of reasons. And if a legislature also reaches that conclusion, it is not the place of the courts to come and second guess the legislative process.
On the other hand, finding "an individual right" outside of militia service will guarantee that there will be loads of litigation. We'll see loads more trash written about the "individual right". It'll be the gravy train for "Second Amendment" lawyers and scholars. Someone reading these blogs might offer me a lucrative job, especially if whatever opinion generated is not unanimous.
On the other hand, probably not since I would much prefer that my real Second Amendment right of being free from standing armies were implemented rather than some nonsensical right which never was intended to be part of the whole shebang. I would want to see an end to this and make the Second Amendment the dead letter it is for firearms ownership once and for all.
To be quite honest, I don't mind expanding rights in a Roe v. Wade fashion if it truly impinges upon something which affects only a person and his/her personal life. I do mind when the right leads to high social costs which is undeniable about "gun violence".
The RKBA crowd has a sticker which says "fear the government that fears your gun".
I say "fear the government which tells you how to run your personal life and doesn't care about the welfare of its citizens".
I don't want the government telling someone that she can or cannot have children. Worse, forcing children into this world without parents who want them. Especially if that government is unwilling to shoulder the burden of raising those children. Even more so when it is all too willing to pay to incarcerate those children rather than pay to properly educate them.
The government has no business telling me what I should believe as far as religion goes. Even more so since the Constitution says that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States" and that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." That means public officials should keep their arses out of proselytising.
I agree with Justice McReynolds when he said the liberty guaranteed by the Due Process Clause of the Fourteenth Amendment included an individual's right "to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his conscience, and generally to enjoy privileges, essential to the orderly pursuit of happiness by free men."
This means that I can do what I will if it doesn't lead to harming others. Unfettered firearms ownership does harm others. The cost of gun violence in terms of law enforcement, legal process, health care, etcetera is astronomical. Firearm ownership also makes no sense in a city for a multitude of reasons. And if a legislature also reaches that conclusion, it is not the place of the courts to come and second guess the legislative process.
Self-defence, nuclear weapons, and the Constitution
Why can't I own nuclear weapons? The Second Amendment guarantees it!
This argument comes up from time to time during gun control arguments. An anti-gun person who intends to use it as a strawman argument usually offers it facetiously or sarcastically. A strawman is a logical fallacy in which a debater exaggerates an opponent's position, directs arguments at this exaggerated position, and claims to have defeated the opponent's real argument.
No this isn't a "straw-man" argument. It is a very valid critique of the individual right position.
I decided to do a search using the text of the Constitution, which is available here.
Now the term "self-defence" is never used in this document. Neither is "democracy" for that matter, instead this country is formed as a republic (article 4, section 4).
On the other hand, "provide for the common Defence" is used twice, once in the preamble and in Article I, Section 8.
The term "self" shows up once in the fifth amendment regarding self-incrimination: "nor shall be compelled in any criminal case to be a witness against himself."
Since the term self-defence is never mentioned in the Second Amendment, or the Constitution. And, given the term common defence IS used. It is very obvious that the intent of the Constitution is to deal with the common defence and not self-defence. I think it is sensible that the Second Amendment is not extended to the common law concept of self-defence.
Moreover, this is borne out in the debates regarding both the militia and the adoption of the Second Amendment. Never was the "right of self-defence" (or even "self-defence") mentioned during these debates. The issue was the common defence, not personal defence. Personal defence was not a concern. The ultimate issue was the possibility of the establishment of a standing army over the institution of the militia. As I have said before, Justice Kennedy's frontier farmer's family could have been scalped and the women raped for all "we the people" who wrote the Constitution could have cared in respect to the Second Amendment. The issue was not private arms, but the plenary power of Congress over the militia and the establishment of a standing army.
I have more than enough posts on this topic to delve too far with the issue of self-defence here, but it is a common law concept, not a Constitutional one.
In fact, the Pennsylvania Minority is mentioned regarding a personal right, yet they said "no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals". This says that public injury is a reason for disarming the people. Would they support gun control given the current cost of gun violence in this country? And, the Pennsylvania minority is usually cited as a pro-self-defence position.
True, I cannot use a nuclear weapon for self-defence if that is the alleged purpose of the Second Amendment, but I am more than justified if the right extends to military purposes. We can't read the term "the people" broadly and then restrict the term "arms". That is a logical inconsistency. Both must be read broadly or read narrowly. One can't read one term narrowly and the other broadly.
Additionally, if I am entitled to a personal right to fight tyrant's armies and invading forces, then it makes total sense to have a nuclear or other form of weapon of mass destruction. I cannot fight off a tyrant who is equipped with missiles and tanks if I am not similarly equipped. Where would the US have been had Saddam Hussein actually possessed and used WMD?
On the other hand, the "right of self-defence" is one at common law and can be limited in scope by law. One cannot repulse the attack with such force that one then becomes the attacker to paraphrase Blackstone (and St. George Tucker). We see in other common law jurisdictions (e.g., Britain and Canada) where personal defence weapons are barred from ownership. Additionally, one cannot use self-defence as a reason to justify firearms ownership in Britain. In fact, the use of deadly force is extremely limited at common law, which means that a firearm is definitely not the first choice of self-defence weapon.
There is absolutely no reason to open up the Second Amendment to add the common law concept of self-defence. To do so would be to destroy the constitution. We will see all forms of litigation if a personal right is recognised where it doesn't exist. Whether that is challenging laws regarding machineguns, felon in possession, sentencing, etcetera. There is more than just a hint that this will happen as I have also cited in my other posts.
And I will indeed file a petition to the Supreme Court claiming that my Second Amendment rights are being infringed by treaties limiting nuclear weeapons if it finds an individual right.
Political Parties
I belong to the Constitutional Monarchist party even though I am registered as a Democrat. This is because being an independent in Philadelphia is like being an atheist in Northern Ireland: I.e. "Are you a Democrat Indpendent or a Republican Independent?" Anyway, being a Constitutional Monarchist is the best way to express my political philosophy, but unfortunately, I am probably the only Constitutional Monarchist in the United States.
Now the "Republican" party has truly fallen away from this, especially in terms of its attitude toward rule of law and the Second Amendment. The Second Amendment would make sense if there were still a strong institutional militia; however, most "republicans" aren't willing to accept that institution. Moreover, they are willing to destroy the rule of law for popular opinion, which is the exact opposite of how Adams defined a republic.
People in a republic are expected to participate and give their efforts to running the democracy. In early American times, I would have had some government job where I could have contributed my skills and knowledge. Nowadays, I am marginally employed. People seem to get government jobs by knowing somebody, not by ability.
Worse, the "Republicans" have taken to talking about democracy, which is a contradiction. Not to mention it leads to my next point.
Democracy:
Competitive elections! That doesn't really apply in the United States as I think that it is a system where loads of money is required to get anywhere in the political process.
Absolute democracy is mobocracy where the majority rule. Of course, this isn't really the case in the United States as the 2000 and 2004 elections have shown. Also, I have never had the opportunity to vote for a candidate I support (e.g., Wesley Clark in the 2004 election). We are seeing a wonderful thwarting of democracy regarding the Michigan and Florida primaries and apportioning of delegates.
I find it interesting that both a Democracy and Republic demand rule of law, as does a Constitutional monarchy. However, we may be seeing the thwarting of the rule of law by the Second Amendment/Right to Keep and Bear Arms crowd. The Heller case is a wonderful example of how the rule of law works and how it may be thwarted. the principle of rule of law means that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule.
I keep rattling on about stare decisis which is part of procedural rules. A court must follow precedent unless there is a valid reason to overrule that precedent. In other words, judges should rule in a predictable and non-chaotic manner. Even more salient, judges should not be swayed by popular opinion or the law will change willy-nilly. Justice Breyer recently summarized this Court’s approach, “[T]he rule of law demands that adhering to . . . prior case law be the norm [and] [d]eparture from precedent is exceptional and requires ‘special justifications’ . . . . especially [where] the principle has become settled through iteration and reiteration over a long period of time.” Randall v. Sorrell, 126 S. Ct. 2479 at 2489 (2006) (declining to overrule Buckley v. Valeo, 424 U.S. 1 (1976)). Additionally, if our "leaders" aren't bold enough to show some backbone in time of crisis, then the courts should stand on precedent. I am not really going to go back into this since I have run on about how Heller could and should stick with precedent and just clarify the Miller decision in terms which even idiots can understand.
Anyway, with the exception of Constitutional Monarchy, these systems require some form of personal responsibility and civic mindedness. Constitutional Monarchy realises that the masses are peasants and do indeed need a nanny state. fortunately, Constitutional Monarchists practise noblesse oblige meaning we have a requirement for social responsibility. We can come up with elections, but there are institutions, such as the landed aristocracy which keeps some form of mob rule under wraps. Also, the landed aristocracy are able to keep land use issues under control, which is sort of sad given the interregnum we have had has led to urban sprawl.
Fortunately, we may have a individual right interpretation of the Second Amendment and I can set up my private army and start my own duchy. I mean my Royal Pennsylvania militia will be very well trained if that is what "well regulated" means. And if Justice Scalia is correct that militias are outside of government control, then we are perfectly justified in setting up a Constitutional Monarchy.
I wonder if Prince Charles will accept our invitation to be King.
Republicanism is the ideology of governing a nation as a republic, with an emphasis on liberty, rule of law, popular sovereignty and the civic virtue practiced by citizens. Republicanism always stands in opposition to aristocracy, oligarchy, and dictatorship. More broadly, it refers to a political system that protects liberty, especially by incorporating a rule of law that cannot be arbitrarily ignored by the government. Or as John Adams put it, “They define a republic to be a government of laws, and not of men.” Much of the literature deals with the issue of what sort of values and behavior by the citizens is necessary if the republic is to survive and flourish; the emphasis has been on widespread citizen participation, civic virtue, and opposition to corruption.
Now the "Republican" party has truly fallen away from this, especially in terms of its attitude toward rule of law and the Second Amendment. The Second Amendment would make sense if there were still a strong institutional militia; however, most "republicans" aren't willing to accept that institution. Moreover, they are willing to destroy the rule of law for popular opinion, which is the exact opposite of how Adams defined a republic.
People in a republic are expected to participate and give their efforts to running the democracy. In early American times, I would have had some government job where I could have contributed my skills and knowledge. Nowadays, I am marginally employed. People seem to get government jobs by knowing somebody, not by ability.
Worse, the "Republicans" have taken to talking about democracy, which is a contradiction. Not to mention it leads to my next point.
Democracy:
In political theory, Democracy describes a small number of related forms of government and also a political philosophy. A common feature of democracy as currently understood and practiced is competitive elections. Competitive elections are usually seen to require freedom of speech, freedom of the press, and some degree of rule of law. Civilian control of the military is often seen as necessary to prevent military dictatorship and interference with political affairs. In some countries, democracy is based on the philosophical principle of equal rights.
Competitive elections! That doesn't really apply in the United States as I think that it is a system where loads of money is required to get anywhere in the political process.
Absolute democracy is mobocracy where the majority rule. Of course, this isn't really the case in the United States as the 2000 and 2004 elections have shown. Also, I have never had the opportunity to vote for a candidate I support (e.g., Wesley Clark in the 2004 election). We are seeing a wonderful thwarting of democracy regarding the Michigan and Florida primaries and apportioning of delegates.
I find it interesting that both a Democracy and Republic demand rule of law, as does a Constitutional monarchy. However, we may be seeing the thwarting of the rule of law by the Second Amendment/Right to Keep and Bear Arms crowd. The Heller case is a wonderful example of how the rule of law works and how it may be thwarted. the principle of rule of law means that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule.
I keep rattling on about stare decisis which is part of procedural rules. A court must follow precedent unless there is a valid reason to overrule that precedent. In other words, judges should rule in a predictable and non-chaotic manner. Even more salient, judges should not be swayed by popular opinion or the law will change willy-nilly. Justice Breyer recently summarized this Court’s approach, “[T]he rule of law demands that adhering to . . . prior case law be the norm [and] [d]eparture from precedent is exceptional and requires ‘special justifications’ . . . . especially [where] the principle has become settled through iteration and reiteration over a long period of time.” Randall v. Sorrell, 126 S. Ct. 2479 at 2489 (2006) (declining to overrule Buckley v. Valeo, 424 U.S. 1 (1976)). Additionally, if our "leaders" aren't bold enough to show some backbone in time of crisis, then the courts should stand on precedent. I am not really going to go back into this since I have run on about how Heller could and should stick with precedent and just clarify the Miller decision in terms which even idiots can understand.
Anyway, with the exception of Constitutional Monarchy, these systems require some form of personal responsibility and civic mindedness. Constitutional Monarchy realises that the masses are peasants and do indeed need a nanny state. fortunately, Constitutional Monarchists practise noblesse oblige meaning we have a requirement for social responsibility. We can come up with elections, but there are institutions, such as the landed aristocracy which keeps some form of mob rule under wraps. Also, the landed aristocracy are able to keep land use issues under control, which is sort of sad given the interregnum we have had has led to urban sprawl.
Fortunately, we may have a individual right interpretation of the Second Amendment and I can set up my private army and start my own duchy. I mean my Royal Pennsylvania militia will be very well trained if that is what "well regulated" means. And if Justice Scalia is correct that militias are outside of government control, then we are perfectly justified in setting up a Constitutional Monarchy.
I wonder if Prince Charles will accept our invitation to be King.
21 March 2008
Amusing aside
I was curious as to who Justice McReynolds linear "descendant" was and found it amusing that it's Justice David Souter! In a way Justice Souter seems the perfect person to take over for Justice "Ebenezer Scrooge". Both are bachelors, although Justice Souter's attitude toward woman is (I hope) not misogynistic. I know Justice Souter was engaged whereas McReynolds wouldn't have touched a woman with a barge pole. In fact, Justice Souter appears to have the opposite disposition from Justice "Grumpy Drawers" McReynolds. Not to mention McReynolds was a Southerner and Souter is a Damnyankee. At least Souter is an episcopalian and not a Jew. I can imagine how McReynolds would be spinning in his grave if he was eventually replaced by a Jew.
Talk about the odd couple!
Although according to Jeffrey Toobin's book, The Nine, Souter has a decidedly low-tech lifestyle. He writes with a fountain pen and does not use email. He has no cell phone, no answering machine, and no television. I wonder what Justice Souter's opinion is of wrist watches? Justice Souter has a reputation for being a strong guardian of the Court's institutional integrity. A traditionalist in this regard, he famously stated, in response to proposals to videotape oral arguments before the Supreme Court, "I can tell you the day you see a camera come into our courtroom, it's going to roll over my dead body."
I think Justice McReynolds would appreciate that last opinion! Even though McReynolds had no loyalty to the institution of the Supreme Court, he probably wouldn't appreciate media technology in the Courtroom either. McReynolds was also a man from another era. Most people call McR a caveman. I would love to know what McReynolds would think about today's SCOTUS!
Although, I am not sure what could get Justice McReynolds to like a person. McR was the opposite of Will Rogers in that McReynolds never met a man he DID like.
Justice Souter is much more "politically correct" than Justice McReynolds. That's not hard though. I think Justice Thomas is more politically correct than McReynolds was. McReynolds wouldn't survive Senate scrutiny today with some of his comments, especially what he called Howard University. McReynolds was also notoriously insensitive. I can imagine hear McReynolds expounding on Justice Thomas! I can also imagine Justice Thomas lynching McReynolds.
Justice Souter was called the "stealth justice" since his professional record provoked no real controversy and provided very little paper trail. That is a big difference from McReynolds who couldn't keep his nasty opinions to himself. Stories about McReynolds are rather abundant. In fact, it was due to controversy that McReynolds was made a Supreme Court justice.
Although, Justice Souter looks as if he could tame McReynolds's abrasive personality with Souter's sunny disposition in his official photo. I mean Justice Souter looks like a really likable guy: maybe even likable enough for McReynolds. McReynolds looks like the arrogant SOB he was. Actually, I am of the opinion that Oliver Wendell Holmes was correct when he said of McReynolds: "Poor McReynolds is, I think, a man of feeling and of more secret kindliness than he would get credit." Given that McReynolds and Holmes got along, maybe the geographic differences wouldn't be too much of a problem for Souter and McReynolds.
The thing which makes me think of Justice Souter and McReynolds as being similar is that they were considered conservative at one point. McReynolds is considered the creator of the right in Roe v. Wade. Justice Souter defied all expectations and voted to uphold Roe v. Wade in Planned Parenthood v. Casey, 505 U.S. 833 (1992). Justice Souter said after he was sworn in as Associate justice: "The first lesson, simple as it is, is that whatever court we're in, whatever we are doing, at the end of our task some human being is going to be affected. Some human life is going to be changed by what we do. And so we had better use every power of our minds and our hearts and our beings to get those rulings right."
Like McReynolds, I think that Justice Souter will follow the Collective Right approach in DC v. Heller. I found it interesting that Justice Souter raised the Aymette comment about hunting mentioned in another post.
McReynolds would truly respect Justice Souter if the latter could get the Court to show dignity and follow its precedent.
Of course, McReynolds could haunt the court with the chains that "he forged throughout these years" if they didn't.
Heller: Individual right? Not so fast!
A literature teacher advised me that one should read a poem like it's a love letter and go over every possible meaning of the words. Likewise, one should read a judicial decision, or the argument in this case the same way. Thinking about every possible permutation of the meanings. Which is why I am not so certain that they SCOTUS will find an individual right.
The argument was terrible from people who have appellate advocacy experience. I may just be a lowly trial lawyer, but one has to be prepared for every possibility when one is before an American Appellate tribunal, which none of these men appeared to be. Maybe they were trying to take the middle ground. Maybe they were just not prepared.
I should say that I worked with one of Justice Ginsburg's clerks, Dan Z, in the mid-90s. That can give those in the know about DC's gun laws and enforcing them some idea of my interest and qualifications to comment on this topic. But that is an aside. As I have also said before, I do this more for myself than anything else.
I do believe that if this is a split decision that there will still be litigation until some form of consensus can be made on the topic. Additionally, Gura made too many concessions which were harmful to his case, one of which was the reliance on the courts as to who would be the interpreter of what laws are reasonable. This reliance on "reasonable" restrictions is a killer to any possibility of an individual right for several reasons.
First off, the Second Amendment reads:
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.
That's "shall not be infringed" as Justice Stevens properly pointed out, not "shall not be reasonably infringed". Gura's and Clement's conceding that the right can be infringed in a reasonable manner hurts the argument, especially when one adds in that the Courts are to arbitrate this. We've had Miller for 70 years with loads of litigation, what sort of floodgate will saying there is an individual right bring about?
This is especially true in the area of machineguns, which Gura and Clement both said could be regulated. In fact, Gura says "the government can ban arms that are not appropriate for civilian use. There is no question of that." Specific instance is machineguns, to which Justices Ginsburg and Kennedy both point out that a machinegun makes more sense to have than a handgun. Not to mention that the RKBA websites all point to people wanting to remove the restrictions on machineguns.
The problem is that an individual right which shall not be infringed means that I can own a machinegun. I may have to register it, but I can still possess a machinegun. In fact, I can own a strategic nuclear weapon using the individual right theory. I am serious about filing a case with the Court that my right to own such a weapon is violated by weapons treaties if it does find an individual right to keep and bear arms.
All that is sort of off point since there are more esoteric points in the argument which I have alluded to before, but want to get into here. First one being Justice Alito and the Rybar decision. He has already been a party to a decision where the Second Amendment was in question and the individual right argument was raised and rejected by the court. This may not preclude him from finding an individual right here, but it also doesn't mean that he won't find a collective right.
Justice Alito raised two points in the argument: one being self-defence and the other being the plenary power of Congress over the militia. The self-defence issue could have been a "gimme" to Dellinger since Self-defence isn't mentioned in the Second Amendment, which is something I have been pointing out and was pointed out by Justice Stevens in the argument. Unfortunately, Dellinger's tactics were not the ones I would have taken which is that the Second Amendment is a collective right which does not include the concept of self-defence. The justices will have to do a "Roe v. Wade" and find an extra-constitutional right to make the Second Amendment cover self-defence.
Dellinger's tactic would have been that the law is constitutional unless the law infringes upon militia efficacy. The individual right position ultimately means that terrorists can have nuclear weapons. Which gets to another point that I will get to later on about military power being under Civilian control. Personal self-defence is not mentioned in the Second Amendment as it is in similar state constitutional provisions on the topic and is not a relevant issue to the matter. The Constitutional debates centred upon Congress's power over the militia, not self-defence which gets to plenary power. The fear was that the Federal Standing army would replace the State Militia.
Justice Alito raised the point that Congress has plenary power over the militia, which J. Stevens pointed out wasn't really true since the States could appoint officers. But, that was the issue the Second Amendment addressed, not an individual right to own firearms for any purpose. Self-defence is a common law concept and the choice of weapons that can be used for that purpose can be limited by law (see my post on self-defence).
OK, for those who have no idea of how appellate advocacy works, the Judges often take devil's advocate positions to argue. The trick is to teach and inform the court. Unfortunately, None of the advocates in this case seemed able to properly pursuade the Justices (or me) of their position. Too much concession on all sides. That is most harmful to Dellinger, not so harmful to Gura. Remember Gura would be stuck with arguing that terrorists are able to have nuclear weapons.
This is especially true if one takes J. Scalia's comments about "well-regulated". This is a total misinterpretation of that term. Military force was to be under Civilian control. The Militias during the War for Independence were never out of the control of some authority whether it was Crown or Revolutionary/Provisional/Continental/traitor's tribunals/whatever you what to call them. Examples:
The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, December 12, 1787
Article XIII of the Virginia Declaration of Rights.
The New York convention broke up the right into three paragraphs:
In Federalist 29, Hamilton spoke of the militia being regulated by the Federal Government: "If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security....What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen."
Sure, this is "Monday Morning Quarterbacking" but my point is that there has never been any form of military power which is outside the law. When Blackstone, St. George Tucker, or other contemporary sources mention the militia, it is kept under law. I want to quote Story since J. Scalia says he mentions an individual right and it's a pretty short piece:
Actually, this sounds more collective in its nature as the Second Amendment right is a system of "discipline" requiring "organisation". This also mentions the issue of Standing army. Now, wouldn't there be a mention of the topic of self-defence in this gloss if this were an aspect of the Second Amendment? Again, the topic of self-defence is conspicuously absent. On the other hand, the topic of standing armies is raised by Story. The problem is that Dellinger wasn't as well versed in the proper literature to present his case and ends up with his dick waving in the wind.
But not as badly as Gura does in this excerpt:
By the way, Cases v. United States, 131 F.2d 916 (1st Cir. 1942) followed the "Collective Right" interpretation:
Not the best thing for Gura to have pulled from his hat to support his case.
Now, if the Gura, Levy, and Solicitor General crowd want to have their cake and eat it too, they have to concede that they are trying to overrule local legislatures. Also, Chief Justice Roberts made this comment about standards:
The problems is that comparing the First and Second Amendment is "comparing apples and oranges". They are two different things and I snipped out CJ's comment about the First Amendment picking up baggage over time. Which is a perfect point in Dellinger's favour which he was too (your choice of term here) to have used during argument. We have a standard under Miller (broken record time):
To summarise still yet more even yet another time, 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 interpreted 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.
This means a total ban on firearms in civilian hands is not unreasonable if it does not impair the efficacy of the militia/national guard. To quote Sandidge v. United States, 520 A.2d 1057, 1058 (D.C. 1987), which was precedent in DC prior to Parker:
Which gets to the coup de grace: The right "of the people". Dellinger was totally unprepared for this which makes me wonder what he was doing with his time, but. The term "people" is a term of art, which is the only real significance of Verdugo-Urquidez. The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution, and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. 494 U. S. 260, 264-266. People is not individual but can best be defined as representative of the group, which gets to my "we the people" comment.
Let's analyze the word "people" in the second amendment. It has been claimed that this word necessarily means each adult citizen in America. Let's look at how the word "people" is used in the preamble of the Constitution. "We the People of the United States....do ordain and establish this Constitution for the United States of America." It clear that the word "people" in this context is being used in a collective sense. Obviously, not every adult citizen in America was involved in writing the Constitution. Likewise, saying that the Russians have nuclear weapons does not necessarily mean that each Russian owns a nuclear weapon. The word Russians is being used here in a collective sense. Saying that the people have the right to bear arms does not necessarily mean that each adult citizen has a right to bear arms.
Akhil Reed Amar, a leading scholar of constitutional law and author of The Bill of Rights: Creation and Reconstruction, explains that the word people is used in a collective sense in the US Constitution.
Which takes us to this exchange between Gura and JJ. Scalia and Souter:
And before you go off and say Justice Kennedy may be sympathetic to the individual right camp, I want to point out this question to Gura about the above questioning: "Could it also be simply to reaffirm that the provisions in the main text of the Constitution remain intact?" I assume that J. Kennedy is referring to Article I, Section 8.
The major problem is that the individual right hinges on two things: one, the right of "the people" referring to individuals and, two, the interjection of the common law concept self-defence into the Second Amendment where it's not mentioned. Additionally, you have to interject standards which are constitutional constructs where they don't exist. Also, you have to remove the preamble from the Second Amendment and say it is not relevant. This means that there is language which is surplusage which is contrary to Constitutional interpretation.
The real death blow would be that changing the interpretation from the current "collective right" to an individual right would require defining the standard. Actually, making a standard where none existed when the collective right standard is already accepted legally. While it is a popular opinion that the Second Amendment covers many things which are totally outside its scope and even Constitutionally impossible, the reality is that it is to ensure the efficacy of the militia. This has been its legally accepted meaning. As I said, Dellinger had a position of power which he squandered which is stare decisis and the collective right standard.
I am not so certain the Court will find for an individual right, and there are lots of outside of court material that the justices will consider, one being the various briefs: in particular those of the ABA, District Attorneys in support of the petitioner, and former DoJ officials that suggest exactly what I do here. There is also the policy which must be considered. Do the justices wish to overturn, or at least brutally shake up, the current legislation regarding firearms. The justices must be aware of the amount of litigation which will follow a finding of an individual right. Part of Gura's case was that the court must shape the contour of the individual right. Another thing is that the Court becomes arbiter of legislation and the legislative process, which is something the court is loath to do. Even more salient, is it wise to overturn firearms legislation given the cost of gun violence in the United States?
The argument was terrible from people who have appellate advocacy experience. I may just be a lowly trial lawyer, but one has to be prepared for every possibility when one is before an American Appellate tribunal, which none of these men appeared to be. Maybe they were trying to take the middle ground. Maybe they were just not prepared.
I should say that I worked with one of Justice Ginsburg's clerks, Dan Z, in the mid-90s. That can give those in the know about DC's gun laws and enforcing them some idea of my interest and qualifications to comment on this topic. But that is an aside. As I have also said before, I do this more for myself than anything else.
I do believe that if this is a split decision that there will still be litigation until some form of consensus can be made on the topic. Additionally, Gura made too many concessions which were harmful to his case, one of which was the reliance on the courts as to who would be the interpreter of what laws are reasonable. This reliance on "reasonable" restrictions is a killer to any possibility of an individual right for several reasons.
First off, the Second Amendment reads:
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.
That's "shall not be infringed" as Justice Stevens properly pointed out, not "shall not be reasonably infringed". Gura's and Clement's conceding that the right can be infringed in a reasonable manner hurts the argument, especially when one adds in that the Courts are to arbitrate this. We've had Miller for 70 years with loads of litigation, what sort of floodgate will saying there is an individual right bring about?
This is especially true in the area of machineguns, which Gura and Clement both said could be regulated. In fact, Gura says "the government can ban arms that are not appropriate for civilian use. There is no question of that." Specific instance is machineguns, to which Justices Ginsburg and Kennedy both point out that a machinegun makes more sense to have than a handgun. Not to mention that the RKBA websites all point to people wanting to remove the restrictions on machineguns.
The problem is that an individual right which shall not be infringed means that I can own a machinegun. I may have to register it, but I can still possess a machinegun. In fact, I can own a strategic nuclear weapon using the individual right theory. I am serious about filing a case with the Court that my right to own such a weapon is violated by weapons treaties if it does find an individual right to keep and bear arms.
All that is sort of off point since there are more esoteric points in the argument which I have alluded to before, but want to get into here. First one being Justice Alito and the Rybar decision. He has already been a party to a decision where the Second Amendment was in question and the individual right argument was raised and rejected by the court. This may not preclude him from finding an individual right here, but it also doesn't mean that he won't find a collective right.
Justice Alito raised two points in the argument: one being self-defence and the other being the plenary power of Congress over the militia. The self-defence issue could have been a "gimme" to Dellinger since Self-defence isn't mentioned in the Second Amendment, which is something I have been pointing out and was pointed out by Justice Stevens in the argument. Unfortunately, Dellinger's tactics were not the ones I would have taken which is that the Second Amendment is a collective right which does not include the concept of self-defence. The justices will have to do a "Roe v. Wade" and find an extra-constitutional right to make the Second Amendment cover self-defence.
Dellinger's tactic would have been that the law is constitutional unless the law infringes upon militia efficacy. The individual right position ultimately means that terrorists can have nuclear weapons. Which gets to another point that I will get to later on about military power being under Civilian control. Personal self-defence is not mentioned in the Second Amendment as it is in similar state constitutional provisions on the topic and is not a relevant issue to the matter. The Constitutional debates centred upon Congress's power over the militia, not self-defence which gets to plenary power. The fear was that the Federal Standing army would replace the State Militia.
Justice Alito raised the point that Congress has plenary power over the militia, which J. Stevens pointed out wasn't really true since the States could appoint officers. But, that was the issue the Second Amendment addressed, not an individual right to own firearms for any purpose. Self-defence is a common law concept and the choice of weapons that can be used for that purpose can be limited by law (see my post on self-defence).
OK, for those who have no idea of how appellate advocacy works, the Judges often take devil's advocate positions to argue. The trick is to teach and inform the court. Unfortunately, None of the advocates in this case seemed able to properly pursuade the Justices (or me) of their position. Too much concession on all sides. That is most harmful to Dellinger, not so harmful to Gura. Remember Gura would be stuck with arguing that terrorists are able to have nuclear weapons.
This is especially true if one takes J. Scalia's comments about "well-regulated". This is a total misinterpretation of that term. Military force was to be under Civilian control. The Militias during the War for Independence were never out of the control of some authority whether it was Crown or Revolutionary/Provisional/Continental/traitor's tribunals/whatever you what to call them. Examples:
The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, December 12, 1787
That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers.
Article XIII of the Virginia Declaration of Rights.
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.
The New York convention broke up the right into three paragraphs:
That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State;
That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection.
That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.
In Federalist 29, Hamilton spoke of the militia being regulated by the Federal Government: "If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security....What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen."
Sure, this is "Monday Morning Quarterbacking" but my point is that there has never been any form of military power which is outside the law. When Blackstone, St. George Tucker, or other contemporary sources mention the militia, it is kept under law. I want to quote Story since J. Scalia says he mentions an individual right and it's a pretty short piece:
§ 1889. The next amendment is: "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."
§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
Actually, this sounds more collective in its nature as the Second Amendment right is a system of "discipline" requiring "organisation". This also mentions the issue of Standing army. Now, wouldn't there be a mention of the topic of self-defence in this gloss if this were an aspect of the Second Amendment? Again, the topic of self-defence is conspicuously absent. On the other hand, the topic of standing armies is raised by Story. The problem is that Dellinger wasn't as well versed in the proper literature to present his case and ends up with his dick waving in the wind.
But not as badly as Gura does in this excerpt:
But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necessary, is it unreasonable for a city with that high crime rate to say no handguns here?
JUSTICE SCALIA: You want to say yes.
JUSTICE BREYER: Now, why?
JUSTICE SCALIA: That's your answer.
JUSTICE BREYER: Well, you want to say yes, that's correct, but I want to hear what the reasoning is because there is a big crime problem. I'm simply getting you to focus on that.
MR. GURA: The answer is yes, as Justice Scalia noted, and it's unreasonable, and it actually fails any standard of review that might be offered under such a construction of individual rights because proficiency with handguns, as recognized as a matter of judicial notice by the First Circuit in Cases back in 1942 -- that was a handgun case where the First Circuit examined the restriction on the carrying of the 30-caliber revolver.
By the way, Cases v. United States, 131 F.2d 916 (1st Cir. 1942) followed the "Collective Right" interpretation:
The Federal Firearms Act undoubtedly curtails to some extent the right of individuals to keep and bear arms but it does not follow from this as a necessary consequence that it is bad under the Second Amendment which reads "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 right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing that right. United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588; Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 29 L.Ed. 615. But the Supreme Court in a dictum in Robertson v. Baldwin, 165 U.S. 275, 282, 17 S. Ct. 326, 41 L.Ed. 715, indicated that the limitation imposed upon the federal government by the Second Amendment was not absolute and this dictum received the sanction of the court in the recent case of United States v. Miller, 307 U.S. 174, 182, 59 S.Ct. 816, 83 L.Ed. 1206.
Not the best thing for Gura to have pulled from his hat to support his case.
Now, if the Gura, Levy, and Solicitor General crowd want to have their cake and eat it too, they have to concede that they are trying to overrule local legislatures. Also, Chief Justice Roberts made this comment about standards:
Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these -- how this restriction and the scope of this right looks in relation to those?
I'm not sure why we have to articulate some very intricate standard.
The problems is that comparing the First and Second Amendment is "comparing apples and oranges". They are two different things and I snipped out CJ's comment about the First Amendment picking up baggage over time. Which is a perfect point in Dellinger's favour which he was too (your choice of term here) to have used during argument. We have a standard under Miller (broken record time):
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 still yet more even yet another time, 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 interpreted 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.
This means a total ban on firearms in civilian hands is not unreasonable if it does not impair the efficacy of the militia/national guard. To quote Sandidge v. United States, 520 A.2d 1057, 1058 (D.C. 1987), which was precedent in DC prior to Parker:
"....After a jury trial, appellant was convicted of carrying a pistol without a license, D.C.Code ' 22-3204 (1981), possession of an unregistered firearm, id. ' 6-2311, and unlawful possession of ammunition, id. ' 6-2361....We now hold that D.C.Code '' 6-2311, 6-2361, and 22-3204 (1981) do not violate the second amendment. We affirm appellant's convictions....We agree with numerous other courts that 'the Second Amendment guarantees a collective rather than an individual right.'....The purpose of the second amendment is 'to preserve the effectiveness and assure the continuation of the state militia.'.... Appellant cannot show that possession of a handgun by an individual bears any relationship to the District of Columbia's desire and ability to preserve a well regulated militia."
Which gets to the coup de grace: The right "of the people". Dellinger was totally unprepared for this which makes me wonder what he was doing with his time, but. The term "people" is a term of art, which is the only real significance of Verdugo-Urquidez. The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution, and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. 494 U. S. 260, 264-266. People is not individual but can best be defined as representative of the group, which gets to my "we the people" comment.
Let's analyze the word "people" in the second amendment. It has been claimed that this word necessarily means each adult citizen in America. Let's look at how the word "people" is used in the preamble of the Constitution. "We the People of the United States....do ordain and establish this Constitution for the United States of America." It clear that the word "people" in this context is being used in a collective sense. Obviously, not every adult citizen in America was involved in writing the Constitution. Likewise, saying that the Russians have nuclear weapons does not necessarily mean that each Russian owns a nuclear weapon. The word Russians is being used here in a collective sense. Saying that the people have the right to bear arms does not necessarily mean that each adult citizen has a right to bear arms.
Akhil Reed Amar, a leading scholar of constitutional law and author of The Bill of Rights: Creation and Reconstruction, explains that the word people is used in a collective sense in the US Constitution.
"But the libertarian reading must contend with textual embarrassments of its own. The amendment speaks of a right of 'the people' collectively rather than a right of 'persons' individually. And it uses a distinctly military phrase: 'bear arms.'....The rest of the Bill of Rights confirms this communitarian reading. The core of the First Amendment's assembly clause, which textually abuts the Second Amendment, is the right of 'the people'--in essence, voters--to 'assemble' in constitutional conventions and other political conclaves. So, too, the core rights retained and reserved to 'the people' in the Ninth and Tenth Amendments were rights of the people collectively to govern themselves democratically. The Fourth Amendment is trickier: 'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated.' Here, the collective 'people' wording is paired with more individualistic language of 'persons.'"
Which takes us to this exchange between Gura and JJ. Scalia and Souter:
MR. GURA: Well, certainly, there were many people who were not eligible for militia duty, or not subject to militia service, who nevertheless were expected to, and oftentimes did, in fact, have guns.
JUSTICE SCALIA: Which shows that maybe you're being unrealistic in thinking that the second clause is not broader than the first. It's not at all uncommon for a legislative provision or a constitutional provision to go further than is necessary for the principal purpose involved.
The principal purpose here is the militia, but the -- but the second clause goes beyond the militia and says the right of the people to keep and bear arms.
Now, you may say the kind of arms is colored by the militia. But it speaks of the right of the people. So why not acknowledge that it's -- it's broader than the first clause?
MR. GURA: Well, we do acknowledge that, Your Honor.
JUSTICE SOUTER: Then why have the first clause? I mean what is it doing -- I mean what help is it going to be?
And before you go off and say Justice Kennedy may be sympathetic to the individual right camp, I want to point out this question to Gura about the above questioning: "Could it also be simply to reaffirm that the provisions in the main text of the Constitution remain intact?" I assume that J. Kennedy is referring to Article I, Section 8.
The major problem is that the individual right hinges on two things: one, the right of "the people" referring to individuals and, two, the interjection of the common law concept self-defence into the Second Amendment where it's not mentioned. Additionally, you have to interject standards which are constitutional constructs where they don't exist. Also, you have to remove the preamble from the Second Amendment and say it is not relevant. This means that there is language which is surplusage which is contrary to Constitutional interpretation.
The real death blow would be that changing the interpretation from the current "collective right" to an individual right would require defining the standard. Actually, making a standard where none existed when the collective right standard is already accepted legally. While it is a popular opinion that the Second Amendment covers many things which are totally outside its scope and even Constitutionally impossible, the reality is that it is to ensure the efficacy of the militia. This has been its legally accepted meaning. As I said, Dellinger had a position of power which he squandered which is stare decisis and the collective right standard.
I am not so certain the Court will find for an individual right, and there are lots of outside of court material that the justices will consider, one being the various briefs: in particular those of the ABA, District Attorneys in support of the petitioner, and former DoJ officials that suggest exactly what I do here. There is also the policy which must be considered. Do the justices wish to overturn, or at least brutally shake up, the current legislation regarding firearms. The justices must be aware of the amount of litigation which will follow a finding of an individual right. Part of Gura's case was that the court must shape the contour of the individual right. Another thing is that the Court becomes arbiter of legislation and the legislative process, which is something the court is loath to do. Even more salient, is it wise to overturn firearms legislation given the cost of gun violence in the United States?
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