09 March 2008

Can't get my mind off it.

I have to admit that I am worried that the Supreme Court will make the wrong decision in DC v. Heller. They will be swayed by popular opinion and new "scholarship". Of course, the NRA disagrees with me and believes that the Supreme Court will back the "collective rights theory". The RKBA crowd would prefer if the US legislature annul the locally enacted law.

Additionally. Alan Gura (one of Heller's attorneys) has told the RKBA crowd to stay away from the lawsuit. Exact words: {By allowing the RKBA groups} "to join this litigation would substantially and unnecessarily complicate what is presently a straightforward single-issue case...By adding a variety of extraneous claims to a case that is nearly ready for summary disposition, the Seegars plaintiffs would impede this court in resolving the narrow issue presented in the Parker litigation and substantially prejudice the Parker plaintiffs by delaying resolution of their claim."

The single issue:

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

The accepted interpretation of US v. Miller, 307 U.S. 174 (1939) is that it does not. U.S. v. Sandidge, 520 A.2d 1057 (D.C. 1987) held that it did not, and was precedent until the Parker court decided to violate stare decisis and say that those code sections did. Sandidge said straight out that the Second Amendment applied to the Militia, which is currently the DC national guard. Anyone who was not a member of the militia engaged in militia related duties did not have a right to arms. Additionally, US v. Rybar, 103 F.3d 273 (3d Cir. 1996) was another of the many cases which addressed this issue and found that the right applied only to militia related activities.

For the most part, as I have said over and over here, is that this was pretty much the accepted legal interpretation of the Second Amendment. The only other exception to this was US v. Emerson, 270 F.3d 203,(5th Cir. 2001)

The problem is that the egregious courts fail to address the pertinent case law. The Parker majority ignores three Supreme Court cases that address the meaning of the Second Amendment. In U.S. v. Cruikshank (1876), the Court concluded that “bearing arms for lawful purposes” was not what the Second Amendment was about. More importantly, the Court stated flatly in Presser v. Illinois (1886) that the Second Amendment did not protect a citizen’s right to privately bear arms; instead, it protected the “keeping and bearing of arms” so that the government could not be deprived of “their rightful resource for maintaining the public security” or “disable the people from performing their duty” to the government. And in 1894, the Court upheld a Texas law “prohibiting the carrying of dangerous weapons” in Miller v. Texas, turning aside a Second Amendment rights claim. Little wonder that these three cases went unmentioned.

Instead, we see reliance upon "New Scholarship" which is erroneous and basically advocacy. The problem with the "New Scholarship" is that it doesn't address the real issue, which was the conflicting institutions, the Federal Army v. State Militia. The primary source literature is full of talk about how a standing army can be used to oppress the people: nothing substantial about personal right to firearms outside of militia service. And the fear of a standing army is much more realistic proposition than my having personal firearms for self-defence, let alone hunting. Since firearms were handmade, they were expensive (think Purdey or Holland and Holland shotguns). Hunting was a pass time of rich landowners, not the common person.

Also, I have pointed out before as well, hunting and self-defence are not mentioned in the Second Amendment as they are in State grants of the "right to keep and bear arms". Many of these state rights have been rewritten in recent years to be more in line with the popular view of the right to keep and bear arms. Taking it away from a right intertwined with militia service and making it a personal right in the State Constitutions.

On the other hand, the Second Amendment has been interpreted by the Supreme Court as being a right of the militia:

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.

Popular opinion has misinterpreted Miller ignoring the above passage, especially the last sentence: It must be interpreted and applied with that end in view..

This is pretty emphatic that the Second Amendment applies only to the body known as the militia. This is the body organised under congress's powers from Article I, Section 8. It isn't a hypothetical body (i.e., "sedentary militia" or "unorganised militia"), or some fantasy army of rebellion. The right only applies to active militia related activities.

I have hopes that Justice Alito will be a voice of reason and advocate continuation of the current accepted interpretation and put paid to this "New Scholarship". The law is not to be swayed by popular opinion. Not if it wishes to remain the law. A judge should keep in mind the rule of law, one of those principles being stare decisis.

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