Flip a coin!

Yeah, Scalia says that he follows the founder's intent in interpreting the constitution. He also pretends to follow precedent, which he clearly DID NOT in DC v. Heller when he ignored Justice McReynolds:

has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument...
With obvious purpose to assure the continuation and render possible the effectiveness of such forces (Article I, Section 8 militias), the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

That couldn't have been any clearer in how the Second Amendment was to be interpreted, yet somehow it was missed.

Scalia has written that he viewed "[T]he Second Amendment [i]s a guarantee that the federal government will not interfere with the individual’s right to bear arms for self-defense. … Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that. … [T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states."

Antonin Scalia, A Matter of Interpretation, Federal Courts and the Law 136-137 n.13 (Amy Gutmann ed., Princeton U. Press 1997).

Can he even follow his own writings when ideology calls on him to change his position?

Of course, What he calls dispassionate scholars are merely propagandists as truly dispassionate scholars have pointed out that:

I am firmly convinced that the Second Amendment is concerned with the state's power to control its own militia as a civilian alternative to a professional standing army. In raising the issue in the Virginia Convention Patrick Henry several times pointed to Art. I, Section 8, Clause 16, as an example of the potentially threatening effect of dual state and congressional jurisdiction over the militia and the possibly dangerous union of the purse and sword vested in Congress. Yet wielding the scholar's power of the ellipse several partisans of gun ownership have edited Henry's remarks about how best to regulate the militia into an inflammatory half-truth "The great object is that every man be armed....Every one who is able may have a gun." The NRA has blown this up into a poster-sized blurb embossed with Patrick Henry's image.

Henry Mayer, A PATRICK HENRY ESSAY(No. 5-98) THE POLITICAL LEGACY OF PATRICK HENRY

Likewise, the Second Amendment is the one Amendment which cannot be applied to the States by its nature. It was a bulwark against federal tyranny. I find it most amusing that those who claim that the Second Amendment promotes freedom use it as a tool for imposing their will on the people to bypass local legislatures.

Quite frankly, there was no mention of the concept of self-defence in the actual debates when the Second Amendment was being adopted, but you can find copious references to a federal standing army and how the Second Amendment was to prevent it from taking over the states along with the incumbent evils (out of control military spending). Additionally, the words "self-defence" are conspicuously absent from the Second Amendment.

In addition, Incoporation would interfere with the police power which is reserved to the States. More federal tyranny!

Scalia does back flips and trashes all legal principles to come up with the DC v. Heller decision. To be quite frank, the side arguing for Chicago should have made it quite clear to Scalia that his decision invalidates the use of precedent. He has created law in violation of the Constitutional principles he claims to follow. He has avoided the proper method of amending the constitution in his DC v Heller decision. US v. Miller was quite clear in how the Second Amendment was to be interpreted, yet he chose to ignore it.

But, I won't rag on just Scalia, since Alito (or is that Scalito) once took part in a decision that upheld the civic right interpretation of the Second Amendment (U.S. v. Rybar,103 F.3d 273 (3d Cir. 1996)). Again, how does one argue to judges that choose to ignore precedent and history? Especially when the judges are willing to overturn themselves based upon fanatasies and fairy tales.

Whatever happened to judicial certainty when judges decide cases willy-nilly?

We can be sure that Scalia will provide us with yet another mutation of US Constitutional law as he has painted himself into a wonderful corner by failing to follow his own principles of constitutional interpretation. Let alone the accepted canons of judicial intepretation in his DC v. Heller decision.

What sort of aberration will be produced by McDonald v Chicago?

Scalia's method of Constitutional interpretation seems to be I am the judge, I make the laws!

How does one invalidate an unconstitutional act by a Judge?

Will Scalia prove he uses the Constitution as toilet paper?

The US Supreme Court has another chance to prove that US justice is not the best money can buy in the case of McDonald v. Chicago.  Bouyed by its success in DC v. Heller, the Cato institute is yet again posed to prove the US justice runs by the golden rule: those with the gold make the rules.  Unlike DC v. Heller, they are much more blatant that they have been plaintiff shopping in their attempt to rewrite the constitution to their interpretation.  Added by the stupidity of the American public regarding the meaning of the Second Amendment as a guarantee against the establishment of a standing army now that the military budget has gone out of control (remember  that "Nobody ever went broke underestimating the intelligence of the American public" P.T. Barnum), they may just pull it off.

These words of Henry Mayer, a Patrick Henry scholar, have been drowned out by propagandists such as Stephen Halbrook:

In this connection, however, I need to say something about a recent popular misconception concerning Patrick Henry's legacy and the genesis of the Second Amendment, which states, "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." Despite efforts of a number of misguided scholars to construe this language as justifying individual, unregulated gun ownership, I am firmly convinced that the Second Amendment is concerned with the state's power to control its own militia as a civilian alternative to a professional standing army. In raising the issue in the Virginia Convention Patrick Henry several times pointed to Art. I, Section 8, Clause 16, as an example of the potentially threatening effect of dual state and congressional jurisdiction over the militia and the possibly dangerous union of the purse and sword vested in Congress. Yet wielding the scholar's power of the ellipse several partisans of gun ownership have edited Henry's remarks about how best to regulate the militia into an inflammatory half-truth "The great object is that every man be armed....Every one who is able may have a gun." The NRA has blown this up into a poster-sized blurb embossed with Patrick Henry's image.

This is not, I repeat NOT, part of Patrick Henry's legacy. Clearly speaking of the problem of militia organization, what he actually said is, "The great object is that every man [of the militia] be armed.--But can the people to afford to pay for double sets of arms &c.? Every one who is able may have a gun. But have we not learned by experience, that necessary as it is to have arms, and though our assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance...."

Not to belabor the argument, but cinch it, I would also remind you that the liberty or death speech itself was in support of a resolution to put the colony in a mode of defense, and the plan proposed by Henry's committee as a result of its passage included a militia law that described in great detail not only the number of men, but the amount of ammunition to be raised by a collective levy, and a very clear procedure for maintaining county and provincial control over the militia system. If Henry's remarks were intended to cast doubt upon the adequacy of a hypothetical Congressional militia law, they only affirmed his commitment to the traditional method of state control over a militia that, far from being a privatized collection of gun-toting individuals, was a community temporarily called to arms and always subservient to public authority and law.

from A PATRICK HENRY ESSAY(No. 5-98) THE POLITICAL LEGACY OF PATRICK HENRY

Even if we are willing to make the quantum leap of saying that Henry and other founders advocated the US Constitution include the concept of gun rights, they made it quite clear that they DID NOT want those rights to be subject to federal interference.


Those who truly support the Constitution are woefully mute about the Cato Institute's use of the Supreme Court to destroy that document in the name of "liberty".  It makes me sick that people are silent when such an organisation seeks to destroy the constitution and its meaning.  Of course, the US governement is the best that money can buy and the Cato institute seeks to make sure that it is a govenment of corporations and for corporations--the people be damned.


Libertarianism is merely facism with a smily face.  A philosophy of slogans, but without substance.  Anarchy of the right.  The founders were loath of democracy, which in their minds had the same meaning as anarchy does today.  Likewise, they would rail against libertarianism if they were here today.


Scalia has no real need for the original meaning of the Constitution if it doesn't meet his political purpose, or else he would have joined in Justice Steven's dissent in DC v. Heller.  In fact, if all the Justices who signed on to that piece of shit blotter called DC v. Heller cared for the Constitution and its meaning, that opinion would have been unanimous.  Scalia, in my opinion, is a political whore who should resign rather than continue trashing the constitution with rubbish which sounds as if it were written by a madman rather than a high court justice (hence I refuse to call him a justice).

Yes, this is contempt of court, but the contempt is well justified and deserved.  It should be accepted as that if he wishes to talk shit and clothe it as legal opinion.


Instead, he deserves the contempt he receives for deigning to put his name to DC v. Heller.  I hope his reputation as a judge will be that of a joke.  He has provided us with poor law. Moreover, he has made a joke of the the institution of the Supreme Court and US justice.  No longer is it equal protection under the law, but those who have money see their way.

Likewise, Roberts has burdened the Second Amendment with baggage, which he said he didn't want to do in the DC v. Heller Oral arguments.  Roberts has proven that he was indeed a poor choice to be chief justice.  But, Dubious Bush was also a poor choice to be president.  The idiots are running the village, but people get the government they deserve in a democracy

As I have said before, this blog began as a joke that my dog had been to court more than Harriet Miers had.  Five supreme court justices may again show that my dog has a better understanding of the law than they do.

"Gun Right" supporters who are critical of Heller

Since my anger with the DC v. Heller decision is pretty much based on Scalia's playing fast and loose with the law and his alleged theory of Constitutional interpretation, I usually mention these articles in passing. You will find that most people who support Heller were in some way associated with the decision, or just plain ignorant.

http://reason.com/blog/2008/06/26/a-somewhat-skeptical-take-on-h
http://tadventures.org/2009/07/30/2nd-amendment-not-so-fast-my-friends/
http://constitutionalism.blogspot.com/2008/03/fatal-concession-in-dc-v-heller.html
http://www.lewrockwell.com/grigg/grigg-w32.html
http://www.lewrockwell.com/blog/lewrw/archives/022044.html
http://www.lewrockwell.com/blog/lewrw/archives/022039.html
http://www.lewrockwell.com/blog/lewrw/archives/021863.html
http://www.lewrockwell.com/blog/lewrw/archives/021701.html

The final post isn't so much anti-Heller as much as it is also critical of Scalia for failing to follow what he claims is his method for interpreting the Constitution.

http://works.bepress.com/jeffrey_shaman/1/

That's Laci THE dog

Proof that gun cretins aren't that bright, one of them made the comment that "Laci owns a dog" amongst other statements that he had no fucking idea what I have written.

First off: That's Laci THE dog. And as the blurb at the tops says:

A very intelligent canine. I've gone to court more than Harriet Miers and most US Law School professors ever have. I am ghost written by my human companion.

The idiot also missed the "about me" bit on the right side of the blog. That's a DOG, fuckwit. Has that passed through your thick skull yet?

Laci IS THE Dog, NOT the human who writes this blog.

The bit about the dog going to court is not a joke. I've posted this picture of her in the Court hallway here before. The bit about Harriet Miers came from a friend who pointed out that my dog had been to court more than Miers ever had. Likewise, there are quite a few US law profs who aren't even admitted to any form of State Bar, let alone practised law, which means that Laci has been in court more than they have as well.

The last bit is scary since half the lawyers in the world are located in the US. I find it incredibly frightening that all one needs to do is pass a State bar and they let you loose on the unsuspecting public. Every other jurisdiction requires some form of apprenticeship before finally letting one loose in a courtroom.

The human who actually writes this blog has completed a pupilage in the UK. Whilst one serious hurdle to practise in Great Britain had been overcome. There is a second hurdle to practise: admission to chambers, which is even harder to surpass.

Additionally, this guncretin also shows a huge lack of comprehension of my position regarding DC v. Heller. There is a fairly good summary of that position in my post For SouthernFemaleLawyer. I did add in my response to this moron that one does not amend the Constitution through the judiciary, which Heller did.

Scalia's Second Amendment now reads: "The right of the people to keep and bear arms may be reasonably infringed".

Again, there are more than enough articles written by myself and others that point out this fact. Scalia used the magic words "individual right" which was more than enough to keep the booboisie happy. They now parrot the phrase the Second Amendment is an "individual right" with no understanding of scope of that right.

I didn't say Scalia was an idiot. I have said he was ignorant, which has nothing to do with intelligence. One can be a genius, yet be ignorant. Gun cretins are quite ignorant, which is compounded by the fact that they are ignorant of their ignorance.

I can say that I find Scalia intellectually dishonest as all get out to have wanted to attribute the Heller decision to himself as it pretty much ignores what he claims is his judicial philosophy. As I said, Heller is more "original" than "originalist".

Although, it has been said that Scalia misunderstands the nature of the US legal system and finds it is a civil law system rather than a common law one in his book A Matter of Interpretation. This misunderstanding may form the foundation of his willingness to judicially amend the Constitution rather than go through the proper constitutional process.

Since Heller now stands for the proposition that stare decisis and precedent aren't worth the paper decisions are printed upon, perhaps we can ignore that decision. In fact, isn't there a challenge that it was an unconstitutional act of Judicially amending the constitution to change the language of the Second Amendment? Or to once again quote the man himself:

If the courts are free to write the Constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. Antonin Scalia, Vigilante Justices: The Dying Constitution

I don't think I could make my position any clearer.

For SouthernFemaleLawyer

I am sure you would understand what I mean when I say I worked in USAO-DC's Operation Ceasefire in the mid-1990s, which is a major reason for my interest in this case--along with having lived in Washington, DC during that period.

Anyway, I find your use of the term "penumbral" in regard to the right enunciated in Heller to be quite novel. This is because the term "penumbral" usually means coming from the shadow in an eclipse. The right enunciated in DC v. Heller comes from out of nowhere as Justice Stevens' dissenting opinion points out.

In fact, DC. V. Heller can be used for great mischief in the hands of crafty lawyers since it stands for pretty much a trashing of most legal principles. Even those held by Scalia himself!

For example stare decisis. Prior to Heller it was held that the Second Amendment right was to paraphrase US. v. Miller, 307 U.S. 174 (1939):

The entire text of the Second Amendment was made with the obvious purpose to assure the continuation and render possible the effectiveness of the forces created under authority of Article 1, Section 8, Clause 16. It must be interpreted and applied in consideration of that purpose. Without evidence that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' is reasonably related to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment of the body organised under Article 1, Section 8, Clause 16 of the Constitution or that its use and possession would contribute to the common defense.

The DC court of appeals reiterated that the Second Amendment was to ensure militia efficacy in Sandidge v. United States, 520 A.2d 1057, 1058 (D.C. 1987).

As Justice Stevens pointed out, one does not lightly overturn precedent. I will add especially when that precedent was unanimously decided as was US. v. Miller, 307 U.S. 174 (1939).

Likewise, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)offers the guidance in US Constitutional interpretation that:

Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.

It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.

and

The subsequent part of the section is mere surplusage -- is entirely without meaning -- if such is to be the construction.

The above quotes are not in order as they appear in the decision, but placed in such a way as to educate modern minds. The DC v. Heller decision stands for the principle that inconvenient language may be ignored.

To say that the right Scalia enunciated in DC v. Heller is penumbral would be akin to saying that if he suddenly decided that the Catholic Church was the State religion based upon the First Amendment would be penumbral. Not too far out a thought since his Heller decision has no historical or legal basis. What is to stop us from a mad judge doing the same with other rights? Or to quote the man himself:

If the courts are free to write the Constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. Antonin Scalia, Vigilante Justices: The Dying Constitution

Another aspect which should be frightening to lawyers is that DC v. Heller does not stand for the principle of equal justice before the law, but follows the "Golden Rule". That is, those with the gold make the rules. It is an open secret that the Heller litigation was bankrolled by the Cato Institute, a libertarian think tank with connections to big business: in particular Rupert Murdoch and Koch Industries; the largest privately owned company in the United States. Likewise, the Cato Institute is bankrolling the McDonald case as well.

If we consider that the cry of "no taxation without representation" did not refer to the taxation, but the lack of representation in the decision making process that led to the taxation, DC v. Heller engages in exactly what the founders considered tyranny. That is the interference in the local legislative process by unelected persons. In particular, those who are not local, such as the Cato Institute or the Supreme Court. Again, this proves that Scalia's decision is without merit.

Next we come to Judicial Certainty: Some of my original posts deal with the US v. Rybar decision, which was the decision that earned Justice Alito the monicker "Machinegun Sammy". Amazingly enough, the Rybar court followed the Civic right interpretation of the Second Amendment, yet Alito signed on to Heller.

Likewise, Justice Scalia claims to follow an "originalist" interpretation, which he claimed followed the exact intent of the founders. Scalia proved that his judicial style is more "original" than "orignalist". This means that the law is whatever the judge cares to make it without any real bother with historic, legal, or other constraints. In fact, it will be amusing to see how he rules on McDonald since I believe he has said before that the Second Amendment only applies to the Federal Government. Scalia has said that the doctrine of “incorporation,” which holds that the Bill of Rights applies to state governments via the Fourteenth Amendment, is a “mistake” and is “probably false” in a speech he made at the Hoover Institution.

So, I am not sure how one determines what and how Scalia will rule: which side of the bed he gets up on, whether the sun is shining, etcetera. We may see Justice Scalia contradict himself yet again. How does one appeal from an insane judge, or at least a seriously inconsistent one?

Does that sound penumbral to you?

Read and Comprehend

I have to admit annoyance with the ignorentia at MikeB's blog (I just changed that from ignorentia ad mikeB's reluctantly since that sounded very Latin).

In particular Fatheaded White Moron who did point out something I missed in the DC's list of guns which cannot be registered: a bayonet lug. They missed that one since I wasn't there cribbing them on what to put in.

Anyway, since I like the idea of regulating assault weapons as machineguns, his example of an M1 Carbine would be an assault rifle in my opinion because:

In selective fire versions capable of fully-automatic fire, the carbine is designated the M2 carbine.

which places it in the 26 USC 5845 definition of a Machine gun:
Machine guns, defined as any firearm which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.

The M2 variant is designed to be capable of fully automatic fire, therefore, the M1 is a machinegun using that defintion.

Tough shit, you cretinous asshole.

I strongly suggest that people read the case law 26 USC 5845 in particular the law relating to "designed to shoot" and "readily restored to shoot":

"There were two welds in the gun which obviously was, when manufactured, 'designed to shoot.' The barrel of the gun was welded closed at the breech and was also welded to the receiver on the outside under the handguard. Scroggie testified that there are two possible ways by which the firearm could be made to function as such. The most feasible method would be to cut the barrel off, drill a hole in the forward end of the receiver and then rethread the hole so that the same or another barrel could be inserted. To do so would take about an 8-hour working day in a properly equipped machine shop. Another method which would be more difficult because of the possibility of bending or breaking the barrel would be to drill the weld out of the breech of the barrel. United States v. Smith, 477 F.2d 399(8th Cir.1973)

In the context of the NFA and its use as a modifier describing the manner of firearm restoration, "readily" has been read to encompass several elements of restoration: (1) time, i.e., how long it takes to restore the weapon; (2) ease, i.e., how difficult it is to restore the weapon; (3) expertise, i.e., what knowledge and skills are required to restore the weapon; (4) necessary equipment, i.e., what tools are required to restore the weapon; (5) availability, i.e., where additional parts are required, how easily they can be obtained; (6) expense, i.e., how much it costs to restore the weapon; (7) scope, i.e., the extent to which the weapon has to be changed to allow it to shoot automatically; (8) feasability, i.e., whether the restoration would damage or destroy the weapon or cause it to malfunction. See S.W. Daniel, Inc. v. United States, 831 F.2d 253, 254-55 (11th Cir. 1987) (ease and scope); United States v. Alverson, 666 F.2d 341, 345 (9th Cir.1982) (expertise, ease, and scope); United States v. Smith, 477 F.2d 399, 400 (8th Cir.1973) (time and equipment); United States v. Aguilar-Espinosa, 57 F.Supp.2d 1359, 1362 (M.D.Fla.1999) (time, ease, expertise, and equipment); United States v. Seven Misc. Firearms, 503 F.Supp. 565, 573-75 (D.D.C.1980) (time, ease, expertise, equipment, availability, expense, and feasibility); United States v. Cook, No. 92-1467, 1993 WL 243823, at *3-4 (6th Cir. July 6, 1993) (availability)...

The decisions of several other courts make clear that the Defendant weapon, which would require, according to Alverson's own expert, a maximum of six hours to convert to fire automatically, "can be readily restored" under the NFA. The Eighth Circuit held that a semiautomatic rifle that would take an eight-hour working day in a properly equipped machine shop to convert to shoot automatically qualified as a "machinegun" under the NFA.10 Smith, 477 F.2d at 400; cf. United States v. Shilling, 826 F.2d 1365, 1367 (4th Cir.1987) (holding that disassembled guns that could be made to shoot automatically were "readily restor[able]"); S.W. Daniel, Inc., 831 F.2d at 254-55 (upholding the use of a jury instruction defining a machinegun as "those weapons which have not previously functioned as machine guns but possess design features which facilitate full automatic fire by simple modification or elimination of existing component parts"); Alverson, 666 F.2d at 345 (concluding that an automatic weapon that was converted to fire semiautomatically prior to its sale to defendant could be "readily restored" where it could be modified to shoot automatically by filing down one of its parts); United States v. Lauchli, 371 F.2d 303, 312-13 (7th Cir.1966) (in a case prior to the addition of the "can be readily restored" language to the NFA, deciding that weapons requiring assembly to shoot automatically were machineguns under the NFA). U.S. v. One TRW, Model M14, 7.62 Caliber Rifle, 441 F.3d 416(2006)

There's readily restorable for you!

And why I have a job.

Additionally, some people obviously haven't read the DC v. Heller decision, in particular page 54. They could also do with reading footnotes 23 and 26. Heller did not get rid of firearms regulations. In fact, I have pointed out that Dick Heller was denied a permit for one of his guns. The DC Metropolitan Police notes on its website that: "about 50 applications to register handguns have been denied since the Heller decision".

Of course, these people don't read things or footnotes, unless of course, they are Michael Bellesiles footnotes! Then they rip them apart.

Another point, the "civic right" interpretation of the Second Amendment is not dead as Justice Steven's dissent provides hope for its revival. The Heller decision is "a strained and unpersuasive reading" which overturned longstanding precedent, and that the court had "bestowed a dramatic upheaval in the law". Stevens also stated that the amendment was notable for the "omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense" which was present in such documents as the Declarations of Rights of Pennsylvania and Vermont.

So, there is still hope.

Just curious

I was curious about how one registers a firearm in Washington, DC post-Heller. The Metropolitan Police has an online brochure and a website.

How Do I Register a Firearm in the District?
To register a fiream, residents must report to the Firearms Registration Section of the Metropolitan Police Department, located at 300 Indiana Avenue, NW. The application process may take up to 14 days. The cost for registering each firearm is $13, plus $35 to process fingerprints and $12 for test-firing the weapon.
Applicants must:
--Be 21 years of age
--Complete a firearms application
--Bring proof of residency (e.g., D.C. Driver’s License)
--Bring two (2) passport-sized front facing photos
--Be fingerprinted
--Pass a 20-question multiple choice test
--Complete a notarized firearms eligibility statement

And

WHAT TYPES OF FIREARMS CAN I REGISTER?
Shotguns, rifles, and handguns — which includes revolvers and semi-automatic handguns with a maximum capacity of 10 rounds. However, a shotgun barrel cannot be less than 20 inches in length, and a rifle barrel cannot be less than 16 inches in length and must have a total overall length of 26 inches or more.
WHAT TYPES OF THINGS WOULD CAUSE ME TO BE DISQUALIFIED FROM BEING ABLE TO REGISTER A FIREARM?
To qualify for registration of a firearm in the District of Columbia, you must meet all of the following criteria. You:
1. Must not stand convicted of a crime of violence, or have any prior weapons offenses.
2. Must not be under indictment for a crime of violence or weapons offense.
3. Must not stand convicted within the past five years for a narcotics or dangerous drug offense, threats to do bodily harm or for assault.
4. Must not have been acquitted of any criminal charge by reason of insanity or adjudicated as a chronic alcoholic by any court within the past five years.
5. Must not have been voluntarily or involuntarily committed to any mental hospital or institution within the past five years.
6. Must not suffer from a physical defect which would make it unsafe for you to possess and use a firearm safely and responsibly.
7. Must not be found negligent in any firearm mishap causing death or injury to another human being.
8. Must not be convicted of any felony, or prostitution-related offense.

BTW, DC uses the 26 USC 5845 definition of a Machine gun:
Machine guns, defined as any firearm which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.
(D.C. Official Code § 7-2501.01(10))

then they cover their asses with this cannot be registered:

(IV) A semiautomatic, rifle that has the capacity to accept a detachable magazine and any one of the following:
(aa) A pistol grip that protrudes conspicuously beneath the action of the weapon;
(bb) A thumbhole stock;
(cc) A folding or telescoping stock;
(dd) A grenade launcher or flare launcher;
(ee) A flash suppressor; or
(ff) A forward pistol grip;

Somehow they missed bayonet lug in this list.

Well,someone agrees with me!

Sorry, Mandatory Gun Registration Is Constitutional

I'll link to this article since it is making its way into the search results

Funny, but this is nothing new to anyone who is familiar with the Heller Decision. In fact, I've been saying this from pretty early on (check my posts)! Of course, I'm "anti-gun" so nothing I say is true, which shows the gun cretins for the brainwashed fools they are. But it is fun to read things like:

Even some pro-gun scholars and advocates reluctantly agree. “I think under the Heller decision, registration would be constitutional,” Alan Gottlieb, founder of the Second Amendment Foundation in Bellevue, Wash., told CBSNews.com this week. “It doesn’t make it good public policy.”

and

“Registration is probably not unconstitutional,” says Don Kilmer, an attorney in San Jose, Calif. who has sued two California counties for denying law-abiding citizens permits to carry concealed weapons. “There’s a difference between registration as a permissible regulation and registration as good policy.”

But, I saw an interesting parallel to British Gun law where licensing was introduced and eventually this led to a registration scheme. In the US case, there is an "individual right", but that is not infringed upon by registration. This allows for the nebulous mantra of "the Second Amendment guarantees an individual right", yet it also allows for registration:

In sum, we hold that the District’s ban on handgun
possession in the home violates the Second Amendment,
as does its prohibition against rendering any lawful firearm
in the home operable for the purpose of immediate
self-defense. Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the District
must permit him to register his handgun and must
issue him a license to carry it in the home.
* * *
We are aware of the problem of handgun violence in this
country, and we take seriously the concerns raised by the
many amici who believe that prohibition of handgun
ownership is a solution. The Constitution leaves the
District of Columbia a variety of tools for combating that
problem, including some measures regulating handguns,
see supra, at 54–55, and n. 26. But the enshrinement of
constitutional rights necessarily takes certain policy
choices off the table. These include the absolute prohibition
of handguns held and used for self-defense in the
home. -DC. v. Heller

Gee that's a godsend to the gun control crowd who can now say "regulation is acceptable, but we can't ban gun ownership".

Now, the question is would incorporation to the States mean that something such as Idaho's Constitutional right to arms, "No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition", would be pre-empted by Federal law?

Be careful what you wish for, it may come true!

Sotomayor, Alito, and Gun Control

I have to admit that it is interesting seeing the kerfuffle around Sonia Sotomayor's position on the Second Amendment. It means absolutely zip as my early posts regarding Samuel Alito show

The real point is that in conversations and my early blogs, I pointed out that Justice Alito was on the three judge panel that decided U.S. v. Rybar,103 F.3d 273 (3d Cir. 1996). That was the case which earned him the nickname "machinegun Sammy". But, I have been pointing out as frequently as I can that this case addressed the personal right interpretation of the Second Amendment which was raised as a defence by Rybar. The Rybar court held that the Second Amendment was a collective right, which means that it is to ensure the efficacy of the Militia institution set up under Article I, Section 8.

Justice Alito did dissent, but he did so in a manner similar to Justice Kennedy did in US v Lopez, 514 U.S. 549 (1995) which was to say that he would have found the machinegun statute constitutional had Congress provided a finding that these items were in interstate commerce.

Now, I have raised the question whether this means that Justice Alito follows the collective right interpretation of the Second Amendment whenever I can. I am also curious if stare decisis precludes Justice Alito from taking the individual right interpretation, which most commentators are not sure. I would like to think that it does. Or, failing that, I would like to think that Justice Alito is what I consider a true conservative rather than the idiots who call themselves conservative these days. This means that Justice Alito knows the accepted judicial interpretation of the Second Amendment, which is that it is to ensure the efficacy of the militia set up under Article I, Section 8 and has nothing to do with self-defence, hunting, or shooting sports in general.

No, had Justice Alito stuck by his position in U.S. vs. Rybar, 103 F.3d 273 (3rd Cir. 1996), we would have seen a drastically different outcome to DC v. Heller.

The real point her is that Justice Sotomayor can vote whatever position her heart desires, which is contrary to proper Judicial practice. But, hey, they started it first!

As I keep saying, I am not sure what trend is starting with DC v.Heller,but I don't like it.

Collective or Individual?

Quick Answer for Sevesteen: gun rights are illusory in common law.

I have begun to dislike the terms "collective" and "individual" right in relation to the Second Amendment. First off, neither term really conveys what the right actually encompasses (in legal terms--it's scope). Saying that the right is collective and belongs to the States isn't really helpful. The right was intended to ensure that the Federal Government would not abuse its power to arm the militia under Article I, Section 8, Clause 16 to the detriment of the militia.

It shouldn't come as a surprise that this subject is hard for the booboisie to comprehend since even Supreme Court Justices have difficulty comprehending that there was a difference between civic and private purposes. I mean the booboisie can't comprehend comics, let alone complicated ideas. Also, “collective right” or “individual right” doesn't really define what exactly was being protected. The State's right to have militias? A personal right to own firearms outside of militia service?

That's why the question that the Supreme Court allegedly was considering in Heller was:

Whether the following provisions—D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02—violated 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?

Justice Stevens pointed out that:

The question presented by this case is not whether the Second Amendment protects a “collective right” or an“individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. Justice Stevens's Heller Dissent p.1

This question was answered by US v. Miller, 307 U.S. 174 (1939) as:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

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.

I paraphrase the dicta to make it comprehensible to modern minds as:

The entire text of the Second Amendment was made with the obvious purpose to assure the continuation and render possible the effectiveness of the forces created under authority of Article 1, Section 8, Clause 16. It must be interpreted and applied in consideration of that purpose. Without evidence that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' is reasonably related to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment of the body organised under Article 1, Section 8, Clause 16 of the Constitution or that its use and possession would contribute to the common defense.

Despite what various sides say about the holding taking it from various portions of the early paragraphs. The actual holding is that: "We are unable to accept the conclusion of the court below and the challenged judgment must be reversed (i.e., that the National Firearms Act violates the Second Amendment). The cause will be remanded for further proceedings."

Although it seems from the dicta that the Second Amendment right is best defined as a civic right in that it requires a "reasonable relationship to the preservation or efficiency of a well regulated militia" at least according to Miller, but not according to Heller which choose to ignore the method and precedent of Miller.

Although, As I read Miller, the proper answer to the Question in Heller was "no" for a multitude of reasons. The Heller court had other dilatory tactics if it couldn't give the proper answer, but I digress...

The Founders came from the common law tradition and didn't totally reinvent the wheel when it came to the nascent US legal system. That means the law of the United States was originally largely derived from the common law system of English law, at both the federal and state levels. Weapons related to militia service enjoyed greater protection and were not subject to the same level of regulation as personal arms in the early republic. The right to keep arms for civilian purposes was not removed from the sphere of the State's legislative power, it was subject to the full scope of the state's police powers.

As anyone familiar with Common law developments regarding gun regulation will tell you, there are no "gun rights" in other common law jurisdictions even though they all have the militia tradition to some extent or another (E.g., Australia, Canada, and the United Kingdom). Other Common law based jurisdictions are quick to ban personal firearm ownership after gun massacres.

For example, when Martin Bryant killed 35 people and wounded 21 others in Port Arthur, Tasmania. Both federal and state governments, some of which (notably Tasmania itself and Queensland) were opposed to firearm control, quickly took action to restrict the availability of firearms. It should be noted that the Tasmanian state government initially attempted to ignore this directive, but was subsequently threatened with a number of penalties from the federal government. Though this resulted in stirring controversy, most Government opposition to the new laws was silenced by mounting public opinion in the wake of the shootings. Under federal government co-ordination all states and territories of Australia banned and heavily restricted the legal ownership and use of self-loading rifles, self-loading and pump-action shotguns, together with considerable tightening of other gun laws.

When Michael Robert Ryan, armed with two semi-automatic rifles and a handgun, shot and killed sixteen people including his mother, and wounded fifteen others, then fatally shot himself in Hungerford, England. The massacre led to the Firearms (Amendment) Act 1988, which banned the ownership of semi-automatic centre-fire rifles and restricted the use of shotguns with a magazine capacity of more than two rounds. The Hungerford Report had demonstrated that Ryan's collection of weapons was legally licensed.

The Dublane Massacre where Sixteen children and one adult were killed led to the Firearms (Amendment) (No. 2) Act 1997 being passed. This means that as of 1997 handguns have been almost completely banned for private ownership in Great Britain. Exceptions to the ban include muzzle-loading "blackpowder" guns, pistols produced before 1917, pistols of historical interest (such as pistols used in notable crimes, rare prototypes, unusual serial numbers and so on), starting pistols, pistols that are of particular aesthetic interest (such as engraved or jewelled guns) and shot pistols for pest control. Under certain circumstances, individuals may be issued a PPW (Personal Protection Weapon) licence. Even the UK's Olympic shooters fall under this ban; shooters can only train in Northern Ireland, the Channel Islands, the Isle of Man, or abroad.

Compare the reactions from Australia and Great Britain to the Circle Jerks that occur in the United States after mass shootings and other examples of mayhem caused by firearms. People are so frustrated that they don't even bother to mention gun control. Maybe if someone wipes out an entire city...

Likewise, Early commentators in the US saw the difference possession for the common defence and personal uses. For example, the following passage is often cited by "gun rights" advocates to buttress their position:

7. “That the people have a right to bear arms for the defense of themselves and their own State, or theUnited 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.”"The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (December 18, 1787), reprinted in Pennsylvania and the Federal Constitution, 1787-1788, p. 422

This is because the private purposes of "defense of themselves" and "killing game" is mentioned. The problem is that the public can be disarmed for "unless for crimes committed, or real danger of public injury from individuals". This raises a few questions in my mind such as how strongly are the private purposes protected in light of "real danger of public injury from individuals". I believe that the fact that private purposes are mentioned in this passage, but aren't in the text of the Second Amendment shows that the Second Amendment should not include those purposes under the maxim of Statutory Interpretation Expressio unius est exclusio alterius (The express mention of one thing excludes all others).

Additionally, we have this quote showing a difference between use for the common defence and personal uses from ratification times.

The Bill of Rights secures to the people the use of arms in common defense; so that, if it be an alienable right, one use of arms is secured to the people against any law of the legislature. The other purposes for which they might have been used in a state of nature, being a natural right, and not surrendered by the constitution, the people still enjoy, and [may?] continue to do so till the legislature shall think fit to interdict. "Scribble Scrabble," Cumberland Gazette, January 26, 1787; "Scribble-Scrabble," ibid., December 8, 1786

The right to keep and carry firearms was one of the issues in Commonwealth v. Selfridge (1806), the most important murder trial of the early republic that began to change the need to retreat in self-defence situations. In this case, Selfridge's lawyer conceded that "every man has a right to possess military arms" and "to furnish his rooms with them." Yet the defense also recognized that the ownership and the use of non-military weapons were not constitutionally protected. Rather than assert a constitutional claim, the defense framed a common law argument on behalf of his client. Selfridge's attorney argued "there is no law written or unwritten, no part of the statute or common law of our country which denies to a man the right of possessing or wearing any kind of arms." Given this fact, it was indisputable that "in every free society a man is at liberty to do that which the law does not interdict, nor can the doing that which is not forbidden be imputed as a crime." Therefore, the acquittal in the Selfridge case made perfect legal sense since Selfridge had not broken any law.
Trial of Thomas O. Selfridge, attorney at law, before the Hon. Isaac Parker, Esquire, for killing Charles Austin, on the public exchange, in Boston, August 4, 1806 by Thomas O. Selfridge, Published by Russell and Cutler, Belcher and Armstrong, and Oliver and Munroe (Boston) 1807.

Likewise, there are other instances where it is made clear that States legislatures could regulate firearms for personal uses

The legislature, therefore, have a right to prohibit the wearing or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defense. The right to keep and bear arms for the common defence is a great political right. It respects the citizens on the one hand and the rulers on the other. And although this right must be inviolably preserved, yet, it does not follow that the legislature is prohibited altogether from passing laws regulating the manner in which these arms may be employed.

To hold that the legislature could pass no law upon this subject, by which to preserve the public peace, and protect our citizens from the terror, which a wanton and unusual exhibition of arms might produce, or their lives from being endangered by desperadoes with concealed arms, would be to pervert a great political right to the worst of purposes, and to make it a social evil, of infinitely a greater extent to society, than would result from abandoning the right itself. Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840).

Aymette is quite clear on the difference between the use of arms for Common defence and personal uses.

So, to recap on how to tell what is being discussed:

Civic context:
Basic gist: the right is better defined as a civic right in that it requires a "reasonable relationship to the preservation or efficiency of a well regulated militia" that is the body organised under Article 1, Section 8, Clause 16 of the Constitution.
The test is: does it contribute to the common defense? "How will your militia be armed?"
Key words to clue you in: "subject to militia duty", "Common defence", security, free State, discipline, standing army, system of defense, general obligation, military duty, etcetera

Personal uses:
personal non-military use, not related to the common defence.
Test: is the use military in nature or related to the common defence? If the answer is "no", then this is a private use.
Key words to clue you in: "defense of his home, person and property", family, hunting, recreational use, purpose of killing game, private use, etcetera.


Anyway, if one goes to the primary sources such as Patrick Henry's comments in regard to the Constitution, one finds a direct reference to the Federal power over the militia in relation to the Second Amendment and the need to preserve state militias from Federal interference.

Patrick Henry, Against the Federal Constitution (June 5, 1788) Argument IV: against the standing army Constitution: Article I Section 8

8.1 You will find all the strength of this country in the hands of your enemies; their garrisons will naturally be the strongest places in the country. Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment: of what service would militia be to you, when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them.
9.1 Let me here call your attention to that part which gives the Congress power "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States—reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress."
9.2 By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither—this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory. Our situation will be deplorable indeed: nor can we ever expect to get this government amended, since I have already shown that a very small minority may prevent it, and that small minority interested in the continuance of the oppression.

or Patrick Henry's "That every man be armed" speech found at The Debates in the Several State Conventions on the Adoption of the Federal Constitution (3 Elliot's Debates 384-7), Virginia, Saturday, June 14, 1788. Page 386-7
. . .

As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of "arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States." To the state legislatures is given the power of "appointing the officers, and training the militia according to the discipline prescribed by Congress." I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects...May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavoured to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by a concurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.

Additionally, even though Story is cited as being for an individual right, we find him bemoaning the "growing indifference to any system of militia discipline"

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. Joseph Story, Commentaries on the Constitution 3:§ 1890

Again, we find that when we use the primary sources to examine the quotes used to show an "individual right" we find a distinct civic tone. Why would one need "some organization" if the right belongs to individuals for non-common defence purposes?

Anyway, there are loads of examples of a guarantee of arms for private purposes in State Constitutions. Although, I find it interesting that some of these personal rights are recently granted, such as Delaware's from 1987, Nebraska's from 1988, and the change in language between Idaho's provision from 1978 compared to the language from 1889.

Colorado: The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons. Art. II, § 13 (enacted 1876, art. II, § 13).
Delaware: A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use. Art. I, § 20 (enacted 1987).
Georgia: The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne. Art. I, § 1, ¶ VIII (enacted 1877, art. I, § XXII).
Nebraska: All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof. Art. I, § 1 (right to keep and bear arms enacted 1988).


Idaho: The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony. Art. I, § 11 (enacted 1978).
1889: "The people have the right to bear arms for their security and defense; but the Legislature shall regulate the exercise of this right by law." Art. I, § 11.

I find the more research I do with primary sources on this subject, the more it becomes apparent that the founders saw a difference between civic and personal uses of firearms. The Civic right was that covered by the Second Amendment with the private uses being subject to common law and the police power of the States.

Turtles all the way down

The most widely known version appears in Stephen Hawking's 1988 book A Brief History of Time, which starts:

A well-known scientist once gave a public lecture on astronomy. He described how the earth orbits around the sun and how the sun, in turn, orbits around the center of a vast collection of stars called our galaxy. At the end of the lecture, a little old lady at the back of the room got up and said: "What you have told us is rubbish. The world is really a flat plate supported on the back of a giant tortoise." The scientist gave a superior smile before replying, "What is the tortoise standing on?" "You're very clever, young man, very clever", said the old lady. "But it's turtles all the way down!"

OK, I'll have to admit to intellectual laziness since I learned about this from the first season of QI instead of reading Stephen Hawking. Where I picked it up isn't as important as the concept of knowledge and myth.

For some reason some ancient beliefs and superstitions have not given way to logic and science. The popular imagination holds a belief, yet refuses to shed it to fact. Ignorance keeps hold even though knowledge has tried to explain facts.

"But it's turtles all the way down!"

The argumentum ad populum. Someting is true because many or all people believe it. There is a converse to this the argumentum ad verecundiam, the argument from authority or appeal to authority is a logical fallacy, where it is argued that a statement is correct because the statement is made by a person or source that is commonly regarded as authoritative.

But, if the people or the authority is wrong, then that does not make the proposition true. So, even if 5 out of 4 of the Supreme Court justices rule that someting is the law, that does not make it proper law.

I have to admit, that any legal scholar if pressed would say that if something is not mentioned in a law, that it is not applicable, yet the argument in DC v. Heller was given court time.

The question is how does one educate the people that the popular beliefs about the Second Amendment, in particular it's being an "individual right" are The Emperor's New Clothes. There really isn't anything there. Heller was pure partisan politics which is the only reason that piece of intellectual dishonesty could have been written.

Everyone who has read the decision has found it wanting, with the exception of some gun control groups who are happy that it allows for reasonable restrictions and the "me too" crowd of Second Amendment "Scholars"--of couse. I have to admit that it is a harbinger of ill when I think of this in light of Cass Sunstein: "The Second Amendment: The Constitution's Most Mysterious Right", but I am not sure how the ill will come about.

The problem is that it is difficult dealing with ignorance as the quote at the beginning points out.

So, it is a chore to deal with it whether the ignorance comes from the people or those in power

A Layman's Guide to Heller

By Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center. Professor Barnett is counsel on an amicus brief in Heller v. District of Columbia filed by the Academics for the Second Amendment. A condensed version of this piece was published in the Wall Street Journal on March 18th as “Gun Rights Show Down”.

A LAYMAN’S GUIDE TO HELLER

Today, the Supreme Court will hear oral arguments in the case of Heller v. District of Columbia, a suit brought by several DC citizens contending that the ban on the possession of operable firearms inside one’s home violates the Second Amendment. The Circuit Court of Appeals for DC agreed and held the ban to be unconstitutional. However it is decided, Heller is already historic. For the first time in recent memory, the Supreme Court will consider the original meaning of a significant passage of the Constitution unencumbered by its own prior decisions; and the majority and dissenting opinions in this case will be taught in law schools for years to come. Here’s a layman’s guide the significance of the case—and its limits.

Heller Will be Decided on Originalist Grounds. Among law professors, enforcing the original meaning of the Constitution is highly controversial. Critics of originalism deny that we should be ruled by the “dead hand of the past.” They prefer following Supreme Court precedents that may or may not be consistent with original meaning. Any justice who today professes a commitment to originalism is branded a radical; and all Supreme Court nominees are now grilled on their commitment to the doctrine of stare decisis. But what are old precedents if not the “dead hand” of dead justices?

Significantly, then, both sides in Heller are making only originalist arguments. The challengers of the law contend that the original meaning of the Second Amendment protects an individual “right to keep and bear arms” that “shall not be abridged.” In response, the District does not contend that this right is outmoded and that the Second Amendment should now be reinterpreted in light of changing social conditions. Not at all. It contends instead that, because the original intentions of the framers of the Second Amendment was to protect the continued existence of “a well regulated militia,” the right it protects was limited to the militia context. (editorial note: I disagree with this since the Second Amendment should be interpreted as a unitary text within the Constitutional framework)

So one thing is certain. Whoever prevails, Heller will be an originalist decision. This shows that originalism remains the proper method of identifying the meaning of the Constitution. Heller reveals that today’s debate over originalism is really about whether old nonoriginalist Supreme Court decisions should supercede the Constitution’s original meaning when doing so leads to results that nonoriginalists like better.

The Second Amendment Protects an Individual Right. In the 1960s, gun control advocates dismissed the Second Amendment as protecting the so-called “collective right” of states to preserve their militias—notwithstanding that, everywhere else in the Constitution, a “right” of “the people” refers to an individual right of persons and the Tenth Amendment expressly distinguishes between “the people” and “the states.” Beginning in the 1980s, a deluge of scholarship showed why the collective rights interpretation is false.

Now even the District asserts the new theory that, while this right is individual, it is “conditioned” on a citizen being an active participant in an organized militia. Therefore, whoever wins, Heller won’t be based on a “collective” right of the states. This is also true of the approach advanced by U.S. Solicitor General Paul Clement: find an individual right but then still largely defer to the judgment of the District (which is not how the Court protects other individual rights). Still, a ruling upholding an unconditioned individual right to arms and invalidating the ban is unlikely to have much affect on current gun laws. Here’s why.

Heller is a Federal Case. Because the District of Columbia is a federal entity, Heller provides a clean application of the Second Amendment which, like the rest of the Bill of Rights, originally applied only to the federal government. Before a state or municipal gun law can be challenged, the Supreme Court will have to decide that the right to keep and bear arms is also protected by the Fourteenth Amendment, which limits state powers. This conclusion is not forgone.

Nowadays, the Court asks whether a particular rights is “incorporated” into the Due Process Clause of the Fourteenth Amendment, an unpopular doctrine among some conservatives. Of course, after recognizing an unconditioned individual right in Heller, affording it less protection from states than other enumerated rights now receive would be awkward—especially given the overwhelming evidence that the right to keep and bear arms was among the “privileges or immunities of citizens” to which the Fourteenth Amendment refers. Indeed, those who wrote the Amendment were concerned about enabling black freeman and white Republicans in the South to protect themselves from violence, including terrorism by local militias.

Heller Involves a Complete Ban on Operable Firearms in the Home. DC not only bans all handguns, it makes it illegal to possess in one’s home any operable firearm. No state has a comparable law; only scattered municipal firearms bans would be immediately threatened. And the Court would still have to decide how much scrutiny to give gun regulations that fall short of complete prohibition. Furthermore, the DC gun ban is only being challenged as it applies inside the home. So a ruling against DC would not immediately affect most laws governing firearms in other venues.

Most Existing Gun Regulations Would Likely Be Upheld. Under current Supreme Court doctrine, even the First Amendment rights of speech and assembly are subject to reasonable time, place, and manner regulations. So too would gun rights. However, because political support for the right to keep and bear arms is so powerful, only gun laws with pretty plausible justifications actually get enacted—e.g., laws against felons owning firearms. Therefore, even if the Court decides to scrutinize federal and state regulations, rightly or wrongly, most would likely be upheld.

Then Why Is Heller So Important? Although the implications of striking down the DC gun ban are limited, a decision upholding an unqualified individual right in Heller would still be significant. For one thing, it would be a vindication of originalism. More importantly, the private ownership of firearms is a hallmark of American liberty. The right to arms is so politically popular, even Democratic candidates for president feel they must support it—albeit only for hunters. Still, while most gun control activists now deny that they favor banning all firearms, their strategy seem to be to incrementally achieve prohibition by a series of statutes and tort suits that raise the costs of gun ownership and undermine the feasibility of using guns in self defense. Once the Supreme Court recognizes an individual right, lower court challenges to pretextual regulations that may not currently be brought may well be allowed.

But gun rights supporters should also be careful what they wish for. While a Supreme Court decision favoring gun rights in Heller might induce more legislative caution before enacting gun laws, it could also allow legislators to shift responsibility for assessing constitutionality to the courts. And supporters of the gun rights groups that have so effectively protected the right to arms might become apathetic thinking the courts would protect them. Now that Heller is before the Court, however, these risks are worth running. To shrink from enforcing a clear mandate of the Constitution—as, sadly, the Supreme Court has often done in the past—would create a new precedent that would be far more dangerous to liberty than any weapon in the hands of a citizen.

Published Sunday, March 30, 2008 6:00 AM by Federalist Society

© The Federalist Society. All rights reserved.

Editorial comment: Opinions in this are not necessarily ones I share

Incorporation of the Second Amendment

We have seen the gradual erosion of the Second Amendment right by DC v. Heller's failure to take notice of the precedent in United States v. Miller, 307 U.S. 174 (1939), which I paraphrase as to make it comprehensible to less-educated, modern minds.

The entire text of the Second Amendment was made with the obvious purpose to assure the continuation and render possible the effectiveness of the forces created under authority of Article 1, Section 8, Clause 16. It must be interpreted and applied in consideration of that purpose. Without evidence that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' is reasonably related to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment of the body organised under Article 1, Section 8, Clause 16 of the Constitution or that its use and possession would contribute to the common defense.

The majority in Heller was willing to trash the first half of 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 second part also is now subject to regulation.

That means the text as interpreted by Heller should actually read, the right of the People to keep and bear arms may be reasonably infringed. See this, this, this, and this.

In case you missed it, while granting an individual right, Heller was able to own a handgun providing he passed the registration requirements. Heller was rejected for a permit to register one of his guns!

The question that needs to be asked isn't whether this is a civic, individual, collective, or right for dogs alone, but what is the scope of the right?

Which gets to the point of this post.

It is called "the true palladium of liberty" because the Second Amendment is a guardian of states' rights within the federal system. Federalism the concept that the states (meaning the sovereign people of each state) had delegated only particular powers to the Federal Government. The Bill of Rights was intended solely as a limitation on the Federal Government. That’s why the First Amendment begins “Congress shall make no law” without any mention of state legislatures.

There is also the precedent of In U.S. v. Cruikshank, 92 U. S. 542 (1875) where the Court wrote:

The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.

Hopefully, the Supreme Court will hear an appeal from a gun control case and affirm the traditional principle of states’ rights which was written into the Constitution but mostly ignored during the 20th century. Unfortunately, the Court doesn't really feel bound by precedent or proper legal method, as Heller pointed out. So, stare decisis and the correct interpretation of the precedent is not something to be hoped for.

Got that?

Illinois has not abolished self-defense and has not expressed a preference for long guns over handguns. But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.

Did you miss my thing on Taxation without representation? In this post, it's not about taxes, but the ability for localities to make their own legislation free from British or Federal interference that was considered tyranny. Let's just turn the Second Amendment on its ass and use it for tyrannical purposes.

Do you agree that the Federal government should have the right to interfere with local legilsation? Are you willing to give up your rights to Washington? Do you realise that by invalidating Chicago's gun laws, that is precisely what will happen?

The poor citizens of DC are subject to Federal tyranny since they are a federal colony, but why should the Citizens of Chicago see their local legislation trashed by five ignorant justices?

I find it amazing that people can speak of individual liberty, yet are so ignorant that they can't see what is being done underneath they noses.

It's amusing the amount of ignorance I see from the gun cretins. They talk about resisting government tyranny and how the Second Amendment will bring them freedom, yet it is doing more to erode their liberties.

They talk of freedom and kinship to the Rebels of the War for American Independence, yet are freely willing to subject themselves to the tyranny the rebels feared. They are willing to give their freedom to unelected judges who are responsible to no one.

P.T. Barnum, a man who should know, said that "no one went broke underestimating the intelligence of the American people." A corellary of which is that the Loyalists had the better arguments during the War for Independence, but they went over the heads of the masses.

I find it as ironic as Meleanie Hain's being shot to death with a gun they owned for protection that the Second Amendment, which was created to be a guardian of states' rights within the federal system, will be destroyed by placing it within Federal jurisdiction.

Ever wonder why I say the Second Amendment is a historical relic?

Grading the Heller Decisions

I have been wanting to do this for a while. I am taking the point of view that these are my students in a tutorial on the Second Amendment in US Constutional law at a British University.

Let's start with Stephen Breyer:

Steve--Interesting ideas, but not really constitutional or even germane. You're focusing a bit more on policy than law here. This isn't PPE or French, we're studying law here. OK, I am being far harsher than I should on you since you are choosing to defer to the legislature which isn't a bad position. Although see my comments to John R about leadership It's just that you are going out on a limb with this approach. Unique, but I am not sure the founders would have really been too thrilled with this approach or what they would have made of it. Cribbing John S's argument is what saved you from Nino and John R's fate here. Well, at least you didn't write an essay like Nino's since I hate giving "F"s. I know the Second Amendment is pretty confusing. Also, I don't agree that the protection the Amendment provides is not absolute--I mean it does use "shall". I was tempted to give you a D+, but you're getting a C- since I know you can do better. My question is why you didn't? Were you at the Union drinking with the lads when you wrote this figuring that cribbing John's essay would get you off the hook and a better grade? Are you ticked off that John made the cadet corps and not you?

Sorry, not much I can do for you on that front.

John--the best of the "three" essays since the other John cribbed Nino. Although I am really disappointed that you didn't deal with some other aspects of this issue, such as the insurrectionist theory or self-defence being an anachronism aspect. I would have loved to have seen your take on that. You also have a slam dunk with the "legislative intent" aspect from the ratification debates that you failed to address in detail. Other than that, you addressed the issue in pretty much a concise, thorough, and conservative manner. Sorry, but you get an A- because it wasn't perfect. As I said, I would have liked a bit more from you. Did you think that Nino was going to get an A for pure creativity?

Nino--Where did you come up with this? First off, you give stare decisis extremely short shrift. Not to mention your essay was a real surprise for me given all this talk about originalism and trying to decipher the founders' intent in the tutorials. You did everything but that. First off, your concept of legislative interpretation does not gibe with your desire to use the Common Law and the Bill of Rights as a source. Where did you come up with that idea anyway? You take Blackstone and totally misunderstand him in this essay. Instead of using his legislative analysis, you use something from a law review article from 1996! What about Marbury V. Madison as well--how could you have forgotten that one? Another thing, you use an idea of self-defence which originated well after the period in which the Bill of Rights was drafted. To top it off, you neglect any of the material from the ratification debates which show that the right was to protect the Article I, Section 8 militias.

You get an F since it probably won't hurt you in the long run. Sometimes original is just not good. Remember, "because everybody believes it" is a fallacy and does not make a concept correct.

Well, at least you didn't advocate the insurrectionist theory, then I would have really wondered what was going on. I would fail you in this course if you had done that.

Anyway, Nino, you need to reread John's essay as he has a pretty good grasp of the concepts here.

John R--You're supposed to be a leader. There are many responsibilities that come with leadership, one of which is not following. The other is setting a good example. Leadership is a position of trust and belief that requires experience. Additionally, one must make unpopular decisions when one is a leader. You cannot be afraid of controversy, especially if you know that the position you will take is the correct one. I had many reservations when I heard you were made a cadet for that reason, but it's a bit late for me to have you removed from the Corps. That said, I was hoping you would come up with something like the other John's essay especially after the comment during the tutorial about "not wanting the Second Amendment to have baggage". Therefore, I am truly disappointed that you cribbed Nino's essay. You didn't have the decency to come up with your own version of an essay, which at least Steve had the decency to do.

F and I will talk to your regiment's commander about this poor show as it is not worthy of a leader.

Editorial comment--I was going to make the PPE be an in joke for "Steve", but am explaining it for the non-UK and those who haven't attended British Uni types

Born to run things

I had to admit that there were a few possible titles to this post, such as "Sure I am an elitist", "Define Sheeple", "critical thinking on the internet", and so forth. But if you have actually read this blog, you have figured out that I am from the "ruling class". You know, the elite, the people who run your life.

I find it interesting to see how people are described as "sheeple", especially in the context of the "Second Amendment debate". Even more so when I look at the wikipedia entry:

Sheeple is a term of disparagement, in which people are likened to sheep.

It is often used to denote persons who voluntarily acquiesce to a perceived authority, or suggestion without sufficient research to understand fully the scope of the ramifications involved in that decision, and thus undermine their own human individuality or in other cases give up certain rights. The implication of sheeple is that as a collective, people believe whatever they are told, especially if told so by a perceived authority figure believed to be trustworthy, without processing it or doing adequate research to be sure that it is an accurate representation of the real world around them.

Sorry, I don't fit the picture of "sheeple" in any way. Maybe "sheeple herder", but not "sheeple".

Nevermind that I am a believer in the "collective right" and will always be as it is the historically accurate interpretation. The "individual right" camp has done a wonderful job of twisting the truth, yet I am amazed at who is willing to believe it. Yes, there are lawyers who actually believe that the Second Amendment includes self-defence: despite the fact that they would rip holes if it were the opposite opinion claiming that there was a right that didn't exist (e.g. abortion).

No, this is not because I was told this was the correct interpretation, but because I actually looked at the source material, which I frequently cite for you to examine as well. It is the only interpretation that makes sense as well.

Unless you truly believe criminals have the right to firearms ownership.

Additionally, I am amazed that there is such blatant running of the Heller by the Special Interest think tank, the Cato Institute. And guess what, the Cato Institute has ties to Rupert Murdoch. In case you missed it, Murdoch owns quite a large media conglomerate: News Group. News Corp owns the Wall Street Journal.

As the bumper sticker says: "the media are as liberal as the large, conservative companies that own them."

And there is a reason that "conservatives" dislike National Public Radio and want to cut funding: they would have no control over a publicly funded organisation. But fortunately, nearly 30 years of "conservative" governments in the US have left public broadcasting with almost no funding.

What is left? You find that the media, and even the internet, are filled with right wing posts and a predominance of right wing information. You have to sift to find anything useful.

You are told that Heller "finds" an individual right, but guess what? That right seems more and more nebulous if you scrutinise it.

For example:

Although we do not undertake an
exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should be
taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of arms. Heller p. 54

This has a footnote, 26, which states:

We identify these presumptively lawful regulatory measures only
as examples; our list does not purport to be exhaustive.

Don't forget footnote 23 as well!

23 With respect to Cruikshank’s continuing validity on incorporation,
a question not presented by this case, we note that Cruikshank also
said that the First Amendment did not apply against the States and did
not engage in the sort of Fourteenth Amendment inquiry required by
our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252,
265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed
that the Second Amendment applies only to the Federal Government.

What does that leave you with? Nothing?

But it is an "individual" right!

As Justice Stvens said:

The question presented by this case is not whether the
Second Amendment protects a “collective right” or an
“individual right.” Surely it protects a right that can be
enforced by individuals. But a conclusion that the Second
Amendment protects an individual right does not tell us
anything about the scope of that right.

The Civic right, Collective right, or whatever you want to call it means that the Second Amendment only protects the "right to keep and bear arms" as part of the militia, that is the body organised under article I, section 8. All the quotes from the adoption deal with partition of power between the two governments:

To Congress is given the power of "arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States." To the state legislatures is given the power of "appointing the officers, and training the militia according to the discipline prescribed by Congress." I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects. If the states have the right of arming them, while concurrently, Congress has power of appointing the officers, and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will carry you into endless absurdity— that Congress has nothing exclusive on the one hand, nor the states on the other. The rational explanation is, that Congress shall have exclusive power of arming them, and so on, and that the state governments shall have exclusive power of appointing the officers, &c. Let me put it in another light.

May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, and so forth and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed?

See my How will your militia be armed? Post.

Funny, but Patrick Henry doesn't mention self defence in that piece I just quoted. But, you can stop being sheeple and actually do some cite and fact checking for yourself. I mean, did you catch that was a quote famous quote from Patrick Henry?

So, I find it amazing that people think that the Bilderbergers work in secret. See how many people have missed that they have been played by the DC v. Heller nonsense.

The Bilderbergers could post their agenda on the front page of the New York Times and most people would miss it.

Who you calling "sheeple"?