When I thought I wasn't interested in the US Elections, the democrats give the ultimate fuck you to the RKBA crowd by putting Joe Biden in the Vice-presidential spot. You know, Joe Biden the bloke who told the dickless asshole with the assault rifle "if that is his baby, he needs help.I think he just made an admission against self-interest. I don't know that he is mentally qualified to own that gun. I'm being serious. Look, just like me, we go around talking about people who own guns."
Here it is for your viewing pleasure:
Now, DC v. Heller, S.Ct Docket # 07-290, 554 U.S. ___ (2008) has come up with the most fucked up interpretation of the Second Amendment. Well, fucked up for everybody except the gun grabbers. "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." That means pretty much that as long as guns are available, they can be regulated.
What did DC do? They went back to the pre-1976 law, which was still the strictest gun laws on the books! It just allowed for the possession of .38 revolvers with 4 inch barrels! Well, Heller can have his gun for self-defence.
Hahahahahahahahahaha!
Not to mention dickhead Bob Levy has come out to say that the Second Amendment cannot infringe upon property rights. He supports those business owners who want to keep guns off their property. What was he thinking?
Bob, if you lived in Germany in the 20s you would have supported Hitler because he hated Communists. I mean all that anti-semitic stuff wasn't really pertinent was it?
The problem is that the self-defence interpretation from New Scholarship which has become precedent for the time being only came about in the last 20 or so years.
As I like to say: show me where in the Second Amendment the term "self-defence" is mentioned! They only time the word defence is used in the Constitution is in regard to the "Common defence".
So, after the courts get pissed off with the frivolous law suits from felons who want to own guns and trying to sort of which right takes precedence self-defence or property, there is only one proper interpretation of the Second Amendment: the collective/civic/public/militia right. That is the one that ties the Second Amendment guarantee to ensuring the efficacy of Article I, Section 8 militias.
Anyway, the upshot is that the Democrats will all say they can't ban guns, that's unconstitutional.
Thank you Antonin Scalia for a totally screwed up and unscholarly piece of shit decision. You can't base law upon a logical fallacy (argumentum ad populum).
Showing posts with label RKBA. Show all posts
Showing posts with label RKBA. Show all posts
28 August 2008
27 June 2008
Nothing changes.
I decided to talk to Jon Mirowitz who is, not sure how to describe him since "gun nut" tends to come to mind, but he is the expert on this. Jon eats, sleep, drinks, breaths, etc. guns. The only person I know who is more fanatic is Evan Nappen (google HIM!), but he is in NJ. Jon is of the opinion that this will need to be fleshed out in the Courts, but this is only the slip opinion. The problem is that no standard has been set, which means loads of litigation. Jon pointed out that this stuff was already being litigated, as in the PA Open Carry cases.
The problem is that Scalia said that certain laws were constitutional, but will DC go to a system which makes registering a handgun more impossible than any other firearm? Also, DC had requirements on storage and inspection of the firearms, even during the "ban" phase, are those OK? I would prefer to get a better opinion than that offered by the "chattering classes". There was an interesting piece at the Blog of the American Constitution Society by Adam Winkler, Professor of Law, UCLA School of Law, who points out, as I do that the majority refused to adopt a standard of review for judging future disputes.
In Heller, the majority said that the decision is not meant “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.” The Court, once again, is trying to avoid the obvious implications of its broad statement of the right to bear arms.
The Court did not provide an indication of what laws might be undermined by the newly recognized right. Don’t be surprised if lower courts refuse to invalidate many other gun laws, citing the court’s caveat regarding not doubting longstanding laws. If so, Heller would constitute the high-water mark for the individual right to bear arms — and we’ll be writing articles years from now about the birth and sudden death of a strong Second Amendment right to bear arms.
We can also guess whether the "collective right" school is dead or dormant given that a lot of courts may give up and say that it makes more sense. That standard, after all was the rationale used for most of those gun laws. The individual right articulated by the court is worse than the collective right interpretation. As one person pointed out, DC can ban guns while Kennesaw, GA can require everyone own them since the Amendment doesn't really go either way. This standard means that not much may change except politicians can keep repeating the mantra of gun rights to placate certain segments of the population as they enact strict gun laws.
We respect your gun rights, there can't be a complete ban on firearms since that's unconstitutional!
Nope, this will only lead to loads of litigation, so the Lawyers win! Not to mention, all those who were trumpeting their victory will be eating humble pie (Ha Ha, Gene Volokh!). Guns cannot be banned, but they can be strongly regulated. From the WSJ blog The District goes back to the law that existed prior to 1976. Back in those days, people could get handguns, subject to certain restrictions. There were, for instance, restrictions on the use of ammunition, and gun owners had to register their firearms. DC has a few federally licensed gun dealers who don't sell to the public (e.g., VPC's Josh Sugarman) and very stringent zoning laws that severely restrict where explosive devices can be sold. The powers that be in the District, the mayor, the city council, the police, and a good portion of DC's populace, are still very against the sale of guns and will do everything in their power to restrict it. At this point, bets are on that they use the zoning laws to keep the stores out.
A gun dealer looking for a place to open a shop in D.C. will have to take on the liability of opening a store in a crime-ridden area where the likelihood exists that he will be robbed and undergo an extremely tough background check. Not to mention that 76% of DC residents supported the gun ban. On the other hand, he tries to open in a more affluent part of the city where you’re going to get fought tooth and nail on zoning ordinances which has happened in Chevy Chase, MD when a fancy outdoors outfitter tried opening a "gun shop" that sold expensive shotguns. Either option, the gun dealer will have to deal with local opposition to opening a store. So, even if there is an "Individual right", the gun dealer with have to deal with local opposition to outside interference in DC's politics.
Registering a firearm in DC.
Back in the day when I was at USAO-DC, I went through the motions of registering a firearm in WDC. I didn't actually register a gun, but I went through the process as if I had actually bought a firearm and was registering it. I had to fill out the form, which asked me where I would use the gun and keep it. I took it to the office when it was open, which were very limited hours during the business week. Since I was USAO-DC and only going through the motions, they opened up especially for me! To say the least, it was a pain in the arse to "register a gun", which means even "law abiding citizens" don't do it. Quite a few just keep their guns broken down in a case without registering them.
With this new decision, does it mean that some of the requirements of registration, such as belonging to a place to shoot the gun, the requirement that stored guns can be inspected, and so on are reasonable? I like how DC used to only register .38 revolvers with 4" barrels. Will that be the law, only handguns of that description are registrable? Can the district charge an exorbitant fee to register a firearm?
One provision of DC's Firearms code is that anyone who wishes to legally own a firearm must register it, which I assume has not been overruled. Any gun which cannot be registered must be removed from the District, or otherwise disposed of, in a period of 10 days to 2 weeks.
Some victory for the RKBA!
With this new decision, does it mean that some of the requirements of registration, such as belonging to a place to shoot the gun, the requirement that stored guns can be inspected, and so on are reasonable? I like how DC used to only register .38 revolvers with 4" barrels. Will that be the law, only handguns of that description are registrable? Can the district charge an exorbitant fee to register a firearm?
One provision of DC's Firearms code is that anyone who wishes to legally own a firearm must register it, which I assume has not been overruled. Any gun which cannot be registered must be removed from the District, or otherwise disposed of, in a period of 10 days to 2 weeks.
Some victory for the RKBA!
26 March 2008
Heller--Individual Right? Again, not so fast!
I was googling "Second Amendment military budget" and found this piece by Akhil Reed Amar where he admits that the Second Amendment doesn't contain the right to armed self-defence. But he tries to make an argument that other provisions of the Constitution do, namely the ninth and fourteenth Amendments. He is making an analogy to the right to privacy and the Roe v. Wade. Maybe he's been reading these blogs, or maybe I am reading the justices correctly.
Nice one, Akhil, but once you get away from the right to keep and bear arms and it gets even more tenuous. First off, we have to deal with the concept of self-defence as it is in legal doctrine in which deadly force is the last resort. Additionally, as I have pointed out other common law jurisdictions do not allow firearms for self-defence. In fact, self-defence items can be proscribed by law. Otherwise, we do indeed open up a Pandora's box as that means the laws on brass knuckles, coshes, switchblades, and other items would be up for grabs.
Of course, you don't have the terrorists and nuclear weapons issue, but you do get involved in what weapon is reasonable. Additionally, since deadly force is the last resort, deadly weapons such as firearms are disfavoured. The statistics for the cost of gun violence would be even more relevant than they are now in terms of how much the medical treatment of gunshot victims costs society.
So, one can attempt to claim a right to a firearm for self-defence, but the less likely it is that it will be found the further you go from actual constitutional language. As I pointed out in my post on constructionism, if it ain't in the Constitution, it doesn't exist. And in the case of firearms, it makes no sense to try and put them into a constitutional framework.
Certainly, there are more items that cause death than firearms, such as cars or swimming pools. But firearms are deadly if used properly, where the other items are deadly only if improperly used. There is a use-benefit analysis that comes in here. For example, the most dangerous act is to cross the street. On the other hand, are we going to prohibit people from walking? No, we have safety standards and laws that address that issue. So, swimming pools may cause more deaths than guns, but how many people use swimming pools who don't have injuries to reach those numbers of deaths?
On the other hand, cigarette smoking has been greatly regulated since the costs to society in terms of public health are phenomenal. Likewise, it makes sense that firearms are strongly regulated as well since the cost of misuse to society is another strain to the budget.
But it's good that people are beginning to look elsewhere to try and justify gun ownership besides the Second Amendment. Unfortunately, its a lot far too late. The "pro-gun" organisations should have been working toward keeping rural areas rural by fighting sprawl. When the countryside goes, so does shooting sports. They could also have worked toward fighting crime rather than enabling it by weakening gun laws.
So, the Second Amendment may become a dead letter for "gun rights", but it obviously won't be a wake up call. This is good. Since the more the "gun rights" crowd alienate the rest of us, the easier it will be to get strong gun laws enacted. People will question the "pro-gun" movement even more if it becomes public that they have been lied to by a special interest which has not worked in the public interest.
Nice one, Akhil, but once you get away from the right to keep and bear arms and it gets even more tenuous. First off, we have to deal with the concept of self-defence as it is in legal doctrine in which deadly force is the last resort. Additionally, as I have pointed out other common law jurisdictions do not allow firearms for self-defence. In fact, self-defence items can be proscribed by law. Otherwise, we do indeed open up a Pandora's box as that means the laws on brass knuckles, coshes, switchblades, and other items would be up for grabs.
Of course, you don't have the terrorists and nuclear weapons issue, but you do get involved in what weapon is reasonable. Additionally, since deadly force is the last resort, deadly weapons such as firearms are disfavoured. The statistics for the cost of gun violence would be even more relevant than they are now in terms of how much the medical treatment of gunshot victims costs society.
So, one can attempt to claim a right to a firearm for self-defence, but the less likely it is that it will be found the further you go from actual constitutional language. As I pointed out in my post on constructionism, if it ain't in the Constitution, it doesn't exist. And in the case of firearms, it makes no sense to try and put them into a constitutional framework.
Certainly, there are more items that cause death than firearms, such as cars or swimming pools. But firearms are deadly if used properly, where the other items are deadly only if improperly used. There is a use-benefit analysis that comes in here. For example, the most dangerous act is to cross the street. On the other hand, are we going to prohibit people from walking? No, we have safety standards and laws that address that issue. So, swimming pools may cause more deaths than guns, but how many people use swimming pools who don't have injuries to reach those numbers of deaths?
On the other hand, cigarette smoking has been greatly regulated since the costs to society in terms of public health are phenomenal. Likewise, it makes sense that firearms are strongly regulated as well since the cost of misuse to society is another strain to the budget.
But it's good that people are beginning to look elsewhere to try and justify gun ownership besides the Second Amendment. Unfortunately, its a lot far too late. The "pro-gun" organisations should have been working toward keeping rural areas rural by fighting sprawl. When the countryside goes, so does shooting sports. They could also have worked toward fighting crime rather than enabling it by weakening gun laws.
So, the Second Amendment may become a dead letter for "gun rights", but it obviously won't be a wake up call. This is good. Since the more the "gun rights" crowd alienate the rest of us, the easier it will be to get strong gun laws enacted. People will question the "pro-gun" movement even more if it becomes public that they have been lied to by a special interest which has not worked in the public interest.
24 March 2008
More RKBA illogic
I read that the "gun control" crowd is the "guns for criminals" crowd because they prevent law abiding citizens from having guns. That's a lot of a distraction from reality there. I mean John Allen Muhammad, Steven Kazmierczak, and Seung-Hui Cho bought their guns legally, not through the black market.
Gun enthusiasts often claim that there is no link between legal ownership of guns and gun crime - legal guns are legal, illegal guns are illegal and, according to them, never the twain shall meet.
The problem is that guns are the only commodity that start out legal and then end up on the black market. Some are bought directly from a gun dealer (above), some enter through straw purchase/traffickers, and others are stolen. To understand how guns are acquired on the illicit market, we must also look at the legal trade, since the majority of guns on the black market began as part of the legal trade. In the United States alone, approximately 500,000 small arms enter the black market every year due to theft from private citizens.
Legal gun ownership creates a pool of weapons from which crime weapons can be obtained through theft and other means such as fraud. The more guns in circulation, the larger the pool of guns that can end up in the hands of criminals. This is especially true if the penalties for selling to disqualified persons are non-existant, or weak enough that they could be non-existant. Also, we have seen the Government give immunity from lawsuits to gun dealers who sell to disqualified persons.
It's funny how we hear the "Guns for criminals" crowd scream about enforcing the gun laws on the books (which they have structured to be ineffective) on one hand, yet work to repeal them or make them weaker on the other. More than enough times I have pointed out that a finding of an individual right in DC v. Heller will lead to litigation regarding existing firearms laws. It is not strong guns laws that put guns in the hands of criminals, but weak and ineffective ones.
DC's experience shows that having strong gun laws in one jurisdiction while another jurisdiction has weak laws will indeed lead to criminals having guns. DC's crime guns come from outside DC and from legal sources. Crime guns don't come from outer space. Ambiguous or ineffective domestic laws concerning the purchase of small arms contribute to the quantity of guns available on the black market. For example, "straw purchasers" can buy several weapons at once and then illegally resell them if there are no limits to how many guns a person may buy at one time. These illegal weapons are often sold across state lines from a State with lax regulations to one with quite strict gun laws.
On the other hand, the "guns for criminals" crowd refuses to allow for the tools to prevent guns from falling into the hands of criminals. Even simple actions like reporting stolen guns are fought as infringing upon the rights of "law abiding" citizens. The problem is that "stolen guns" find their way into the hands of criminals. In fact, stolen guns by definition have entered the black market. The Tiahrt amendment blocks law enforcement from accessing useful statistics regarding the source of illegal firearms.
Sorry, by doing everything in their power the alphabet soup of "gun rights" organisations (NRA, SAF, GOA, CCRKBA, SAS, etcetera) have ensured a steady source of guns for criminals. This is a pool which won't dry up anytime soon even if SCOTUS does the correct thing and upholds the Miller standard.
Unfortunately, instead of talking about gun responsibilities and enforcing gun laws which had teeth, the "gun rights" organisations have been working to eliminate gun laws. This means more guns for criminals. Gun owners would have been far better served had the talk been of gun responsibilities.
So, to be quite frank with you, crime guns start out as legal guns. We have to look at who is responsible for blocking any serious solution to this problem until the flow of legal guns into the black market is stopped.
Gun enthusiasts often claim that there is no link between legal ownership of guns and gun crime - legal guns are legal, illegal guns are illegal and, according to them, never the twain shall meet.
The problem is that guns are the only commodity that start out legal and then end up on the black market. Some are bought directly from a gun dealer (above), some enter through straw purchase/traffickers, and others are stolen. To understand how guns are acquired on the illicit market, we must also look at the legal trade, since the majority of guns on the black market began as part of the legal trade. In the United States alone, approximately 500,000 small arms enter the black market every year due to theft from private citizens.
Legal gun ownership creates a pool of weapons from which crime weapons can be obtained through theft and other means such as fraud. The more guns in circulation, the larger the pool of guns that can end up in the hands of criminals. This is especially true if the penalties for selling to disqualified persons are non-existant, or weak enough that they could be non-existant. Also, we have seen the Government give immunity from lawsuits to gun dealers who sell to disqualified persons.
It's funny how we hear the "Guns for criminals" crowd scream about enforcing the gun laws on the books (which they have structured to be ineffective) on one hand, yet work to repeal them or make them weaker on the other. More than enough times I have pointed out that a finding of an individual right in DC v. Heller will lead to litigation regarding existing firearms laws. It is not strong guns laws that put guns in the hands of criminals, but weak and ineffective ones.
DC's experience shows that having strong gun laws in one jurisdiction while another jurisdiction has weak laws will indeed lead to criminals having guns. DC's crime guns come from outside DC and from legal sources. Crime guns don't come from outer space. Ambiguous or ineffective domestic laws concerning the purchase of small arms contribute to the quantity of guns available on the black market. For example, "straw purchasers" can buy several weapons at once and then illegally resell them if there are no limits to how many guns a person may buy at one time. These illegal weapons are often sold across state lines from a State with lax regulations to one with quite strict gun laws.
On the other hand, the "guns for criminals" crowd refuses to allow for the tools to prevent guns from falling into the hands of criminals. Even simple actions like reporting stolen guns are fought as infringing upon the rights of "law abiding" citizens. The problem is that "stolen guns" find their way into the hands of criminals. In fact, stolen guns by definition have entered the black market. The Tiahrt amendment blocks law enforcement from accessing useful statistics regarding the source of illegal firearms.
Sorry, by doing everything in their power the alphabet soup of "gun rights" organisations (NRA, SAF, GOA, CCRKBA, SAS, etcetera) have ensured a steady source of guns for criminals. This is a pool which won't dry up anytime soon even if SCOTUS does the correct thing and upholds the Miller standard.
Unfortunately, instead of talking about gun responsibilities and enforcing gun laws which had teeth, the "gun rights" organisations have been working to eliminate gun laws. This means more guns for criminals. Gun owners would have been far better served had the talk been of gun responsibilities.
So, to be quite frank with you, crime guns start out as legal guns. We have to look at who is responsible for blocking any serious solution to this problem until the flow of legal guns into the black market is stopped.
21 March 2008
Heller: Individual right? Not so fast!
A literature teacher advised me that one should read a poem like it's a love letter and go over every possible meaning of the words. Likewise, one should read a judicial decision, or the argument in this case the same way. Thinking about every possible permutation of the meanings. Which is why I am not so certain that they SCOTUS will find an individual right.
The argument was terrible from people who have appellate advocacy experience. I may just be a lowly trial lawyer, but one has to be prepared for every possibility when one is before an American Appellate tribunal, which none of these men appeared to be. Maybe they were trying to take the middle ground. Maybe they were just not prepared.
I should say that I worked with one of Justice Ginsburg's clerks, Dan Z, in the mid-90s. That can give those in the know about DC's gun laws and enforcing them some idea of my interest and qualifications to comment on this topic. But that is an aside. As I have also said before, I do this more for myself than anything else.
I do believe that if this is a split decision that there will still be litigation until some form of consensus can be made on the topic. Additionally, Gura made too many concessions which were harmful to his case, one of which was the reliance on the courts as to who would be the interpreter of what laws are reasonable. This reliance on "reasonable" restrictions is a killer to any possibility of an individual right for several reasons.
First off, the Second Amendment reads:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
That's "shall not be infringed" as Justice Stevens properly pointed out, not "shall not be reasonably infringed". Gura's and Clement's conceding that the right can be infringed in a reasonable manner hurts the argument, especially when one adds in that the Courts are to arbitrate this. We've had Miller for 70 years with loads of litigation, what sort of floodgate will saying there is an individual right bring about?
This is especially true in the area of machineguns, which Gura and Clement both said could be regulated. In fact, Gura says "the government can ban arms that are not appropriate for civilian use. There is no question of that." Specific instance is machineguns, to which Justices Ginsburg and Kennedy both point out that a machinegun makes more sense to have than a handgun. Not to mention that the RKBA websites all point to people wanting to remove the restrictions on machineguns.
The problem is that an individual right which shall not be infringed means that I can own a machinegun. I may have to register it, but I can still possess a machinegun. In fact, I can own a strategic nuclear weapon using the individual right theory. I am serious about filing a case with the Court that my right to own such a weapon is violated by weapons treaties if it does find an individual right to keep and bear arms.
All that is sort of off point since there are more esoteric points in the argument which I have alluded to before, but want to get into here. First one being Justice Alito and the Rybar decision. He has already been a party to a decision where the Second Amendment was in question and the individual right argument was raised and rejected by the court. This may not preclude him from finding an individual right here, but it also doesn't mean that he won't find a collective right.
Justice Alito raised two points in the argument: one being self-defence and the other being the plenary power of Congress over the militia. The self-defence issue could have been a "gimme" to Dellinger since Self-defence isn't mentioned in the Second Amendment, which is something I have been pointing out and was pointed out by Justice Stevens in the argument. Unfortunately, Dellinger's tactics were not the ones I would have taken which is that the Second Amendment is a collective right which does not include the concept of self-defence. The justices will have to do a "Roe v. Wade" and find an extra-constitutional right to make the Second Amendment cover self-defence.
Dellinger's tactic would have been that the law is constitutional unless the law infringes upon militia efficacy. The individual right position ultimately means that terrorists can have nuclear weapons. Which gets to another point that I will get to later on about military power being under Civilian control. Personal self-defence is not mentioned in the Second Amendment as it is in similar state constitutional provisions on the topic and is not a relevant issue to the matter. The Constitutional debates centred upon Congress's power over the militia, not self-defence which gets to plenary power. The fear was that the Federal Standing army would replace the State Militia.
Justice Alito raised the point that Congress has plenary power over the militia, which J. Stevens pointed out wasn't really true since the States could appoint officers. But, that was the issue the Second Amendment addressed, not an individual right to own firearms for any purpose. Self-defence is a common law concept and the choice of weapons that can be used for that purpose can be limited by law (see my post on self-defence).
OK, for those who have no idea of how appellate advocacy works, the Judges often take devil's advocate positions to argue. The trick is to teach and inform the court. Unfortunately, None of the advocates in this case seemed able to properly pursuade the Justices (or me) of their position. Too much concession on all sides. That is most harmful to Dellinger, not so harmful to Gura. Remember Gura would be stuck with arguing that terrorists are able to have nuclear weapons.
This is especially true if one takes J. Scalia's comments about "well-regulated". This is a total misinterpretation of that term. Military force was to be under Civilian control. The Militias during the War for Independence were never out of the control of some authority whether it was Crown or Revolutionary/Provisional/Continental/traitor's tribunals/whatever you what to call them. Examples:
The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, December 12, 1787
Article XIII of the Virginia Declaration of Rights.
The New York convention broke up the right into three paragraphs:
In Federalist 29, Hamilton spoke of the militia being regulated by the Federal Government: "If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security....What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen."
Sure, this is "Monday Morning Quarterbacking" but my point is that there has never been any form of military power which is outside the law. When Blackstone, St. George Tucker, or other contemporary sources mention the militia, it is kept under law. I want to quote Story since J. Scalia says he mentions an individual right and it's a pretty short piece:
Actually, this sounds more collective in its nature as the Second Amendment right is a system of "discipline" requiring "organisation". This also mentions the issue of Standing army. Now, wouldn't there be a mention of the topic of self-defence in this gloss if this were an aspect of the Second Amendment? Again, the topic of self-defence is conspicuously absent. On the other hand, the topic of standing armies is raised by Story. The problem is that Dellinger wasn't as well versed in the proper literature to present his case and ends up with his dick waving in the wind.
But not as badly as Gura does in this excerpt:
By the way, Cases v. United States, 131 F.2d 916 (1st Cir. 1942) followed the "Collective Right" interpretation:
Not the best thing for Gura to have pulled from his hat to support his case.
Now, if the Gura, Levy, and Solicitor General crowd want to have their cake and eat it too, they have to concede that they are trying to overrule local legislatures. Also, Chief Justice Roberts made this comment about standards:
The problems is that comparing the First and Second Amendment is "comparing apples and oranges". They are two different things and I snipped out CJ's comment about the First Amendment picking up baggage over time. Which is a perfect point in Dellinger's favour which he was too (your choice of term here) to have used during argument. We have a standard under Miller (broken record time):
To summarise still yet more even yet another time, the Second Amendment must be interpreted as a whole. the declaration, that is “A well regulated Militia, being necessary to the security of a free State", and the guarantee, the "right of the people to keep and bear Arms, shall not be infringed” bit, need to be interpreted as a whole. There is loads of legal doctrine behind this. For example, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), discusses how none of the language of the Constitution can be considered "surplusage". The Constitution was written in a considered fashion and what was written must be considered essential to its interpretation.
This means a total ban on firearms in civilian hands is not unreasonable if it does not impair the efficacy of the militia/national guard. To quote Sandidge v. United States, 520 A.2d 1057, 1058 (D.C. 1987), which was precedent in DC prior to Parker:
Which gets to the coup de grace: The right "of the people". Dellinger was totally unprepared for this which makes me wonder what he was doing with his time, but. The term "people" is a term of art, which is the only real significance of Verdugo-Urquidez. The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution, and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. 494 U. S. 260, 264-266. People is not individual but can best be defined as representative of the group, which gets to my "we the people" comment.
Let's analyze the word "people" in the second amendment. It has been claimed that this word necessarily means each adult citizen in America. Let's look at how the word "people" is used in the preamble of the Constitution. "We the People of the United States....do ordain and establish this Constitution for the United States of America." It clear that the word "people" in this context is being used in a collective sense. Obviously, not every adult citizen in America was involved in writing the Constitution. Likewise, saying that the Russians have nuclear weapons does not necessarily mean that each Russian owns a nuclear weapon. The word Russians is being used here in a collective sense. Saying that the people have the right to bear arms does not necessarily mean that each adult citizen has a right to bear arms.
Akhil Reed Amar, a leading scholar of constitutional law and author of The Bill of Rights: Creation and Reconstruction, explains that the word people is used in a collective sense in the US Constitution.
Which takes us to this exchange between Gura and JJ. Scalia and Souter:
And before you go off and say Justice Kennedy may be sympathetic to the individual right camp, I want to point out this question to Gura about the above questioning: "Could it also be simply to reaffirm that the provisions in the main text of the Constitution remain intact?" I assume that J. Kennedy is referring to Article I, Section 8.
The major problem is that the individual right hinges on two things: one, the right of "the people" referring to individuals and, two, the interjection of the common law concept self-defence into the Second Amendment where it's not mentioned. Additionally, you have to interject standards which are constitutional constructs where they don't exist. Also, you have to remove the preamble from the Second Amendment and say it is not relevant. This means that there is language which is surplusage which is contrary to Constitutional interpretation.
The real death blow would be that changing the interpretation from the current "collective right" to an individual right would require defining the standard. Actually, making a standard where none existed when the collective right standard is already accepted legally. While it is a popular opinion that the Second Amendment covers many things which are totally outside its scope and even Constitutionally impossible, the reality is that it is to ensure the efficacy of the militia. This has been its legally accepted meaning. As I said, Dellinger had a position of power which he squandered which is stare decisis and the collective right standard.
I am not so certain the Court will find for an individual right, and there are lots of outside of court material that the justices will consider, one being the various briefs: in particular those of the ABA, District Attorneys in support of the petitioner, and former DoJ officials that suggest exactly what I do here. There is also the policy which must be considered. Do the justices wish to overturn, or at least brutally shake up, the current legislation regarding firearms. The justices must be aware of the amount of litigation which will follow a finding of an individual right. Part of Gura's case was that the court must shape the contour of the individual right. Another thing is that the Court becomes arbiter of legislation and the legislative process, which is something the court is loath to do. Even more salient, is it wise to overturn firearms legislation given the cost of gun violence in the United States?
The argument was terrible from people who have appellate advocacy experience. I may just be a lowly trial lawyer, but one has to be prepared for every possibility when one is before an American Appellate tribunal, which none of these men appeared to be. Maybe they were trying to take the middle ground. Maybe they were just not prepared.
I should say that I worked with one of Justice Ginsburg's clerks, Dan Z, in the mid-90s. That can give those in the know about DC's gun laws and enforcing them some idea of my interest and qualifications to comment on this topic. But that is an aside. As I have also said before, I do this more for myself than anything else.
I do believe that if this is a split decision that there will still be litigation until some form of consensus can be made on the topic. Additionally, Gura made too many concessions which were harmful to his case, one of which was the reliance on the courts as to who would be the interpreter of what laws are reasonable. This reliance on "reasonable" restrictions is a killer to any possibility of an individual right for several reasons.
First off, the Second Amendment reads:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
That's "shall not be infringed" as Justice Stevens properly pointed out, not "shall not be reasonably infringed". Gura's and Clement's conceding that the right can be infringed in a reasonable manner hurts the argument, especially when one adds in that the Courts are to arbitrate this. We've had Miller for 70 years with loads of litigation, what sort of floodgate will saying there is an individual right bring about?
This is especially true in the area of machineguns, which Gura and Clement both said could be regulated. In fact, Gura says "the government can ban arms that are not appropriate for civilian use. There is no question of that." Specific instance is machineguns, to which Justices Ginsburg and Kennedy both point out that a machinegun makes more sense to have than a handgun. Not to mention that the RKBA websites all point to people wanting to remove the restrictions on machineguns.
The problem is that an individual right which shall not be infringed means that I can own a machinegun. I may have to register it, but I can still possess a machinegun. In fact, I can own a strategic nuclear weapon using the individual right theory. I am serious about filing a case with the Court that my right to own such a weapon is violated by weapons treaties if it does find an individual right to keep and bear arms.
All that is sort of off point since there are more esoteric points in the argument which I have alluded to before, but want to get into here. First one being Justice Alito and the Rybar decision. He has already been a party to a decision where the Second Amendment was in question and the individual right argument was raised and rejected by the court. This may not preclude him from finding an individual right here, but it also doesn't mean that he won't find a collective right.
Justice Alito raised two points in the argument: one being self-defence and the other being the plenary power of Congress over the militia. The self-defence issue could have been a "gimme" to Dellinger since Self-defence isn't mentioned in the Second Amendment, which is something I have been pointing out and was pointed out by Justice Stevens in the argument. Unfortunately, Dellinger's tactics were not the ones I would have taken which is that the Second Amendment is a collective right which does not include the concept of self-defence. The justices will have to do a "Roe v. Wade" and find an extra-constitutional right to make the Second Amendment cover self-defence.
Dellinger's tactic would have been that the law is constitutional unless the law infringes upon militia efficacy. The individual right position ultimately means that terrorists can have nuclear weapons. Which gets to another point that I will get to later on about military power being under Civilian control. Personal self-defence is not mentioned in the Second Amendment as it is in similar state constitutional provisions on the topic and is not a relevant issue to the matter. The Constitutional debates centred upon Congress's power over the militia, not self-defence which gets to plenary power. The fear was that the Federal Standing army would replace the State Militia.
Justice Alito raised the point that Congress has plenary power over the militia, which J. Stevens pointed out wasn't really true since the States could appoint officers. But, that was the issue the Second Amendment addressed, not an individual right to own firearms for any purpose. Self-defence is a common law concept and the choice of weapons that can be used for that purpose can be limited by law (see my post on self-defence).
OK, for those who have no idea of how appellate advocacy works, the Judges often take devil's advocate positions to argue. The trick is to teach and inform the court. Unfortunately, None of the advocates in this case seemed able to properly pursuade the Justices (or me) of their position. Too much concession on all sides. That is most harmful to Dellinger, not so harmful to Gura. Remember Gura would be stuck with arguing that terrorists are able to have nuclear weapons.
This is especially true if one takes J. Scalia's comments about "well-regulated". This is a total misinterpretation of that term. Military force was to be under Civilian control. The Militias during the War for Independence were never out of the control of some authority whether it was Crown or Revolutionary/Provisional/Continental/traitor's tribunals/whatever you what to call them. Examples:
The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, December 12, 1787
That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers.
Article XIII of the Virginia Declaration of Rights.
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.
The New York convention broke up the right into three paragraphs:
That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State;
That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection.
That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.
In Federalist 29, Hamilton spoke of the militia being regulated by the Federal Government: "If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security....What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen."
Sure, this is "Monday Morning Quarterbacking" but my point is that there has never been any form of military power which is outside the law. When Blackstone, St. George Tucker, or other contemporary sources mention the militia, it is kept under law. I want to quote Story since J. Scalia says he mentions an individual right and it's a pretty short piece:
§ 1889. The next amendment is: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."
§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
Actually, this sounds more collective in its nature as the Second Amendment right is a system of "discipline" requiring "organisation". This also mentions the issue of Standing army. Now, wouldn't there be a mention of the topic of self-defence in this gloss if this were an aspect of the Second Amendment? Again, the topic of self-defence is conspicuously absent. On the other hand, the topic of standing armies is raised by Story. The problem is that Dellinger wasn't as well versed in the proper literature to present his case and ends up with his dick waving in the wind.
But not as badly as Gura does in this excerpt:
But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necessary, is it unreasonable for a city with that high crime rate to say no handguns here?
JUSTICE SCALIA: You want to say yes.
JUSTICE BREYER: Now, why?
JUSTICE SCALIA: That's your answer.
JUSTICE BREYER: Well, you want to say yes, that's correct, but I want to hear what the reasoning is because there is a big crime problem. I'm simply getting you to focus on that.
MR. GURA: The answer is yes, as Justice Scalia noted, and it's unreasonable, and it actually fails any standard of review that might be offered under such a construction of individual rights because proficiency with handguns, as recognized as a matter of judicial notice by the First Circuit in Cases back in 1942 -- that was a handgun case where the First Circuit examined the restriction on the carrying of the 30-caliber revolver.
By the way, Cases v. United States, 131 F.2d 916 (1st Cir. 1942) followed the "Collective Right" interpretation:
The Federal Firearms Act undoubtedly curtails to some extent the right of individuals to keep and bear arms but it does not follow from this as a necessary consequence that it is bad under the Second Amendment which reads "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
The right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing that right. United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588; Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 29 L.Ed. 615. But the Supreme Court in a dictum in Robertson v. Baldwin, 165 U.S. 275, 282, 17 S. Ct. 326, 41 L.Ed. 715, indicated that the limitation imposed upon the federal government by the Second Amendment was not absolute and this dictum received the sanction of the court in the recent case of United States v. Miller, 307 U.S. 174, 182, 59 S.Ct. 816, 83 L.Ed. 1206.
Not the best thing for Gura to have pulled from his hat to support his case.
Now, if the Gura, Levy, and Solicitor General crowd want to have their cake and eat it too, they have to concede that they are trying to overrule local legislatures. Also, Chief Justice Roberts made this comment about standards:
Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these -- how this restriction and the scope of this right looks in relation to those?
I'm not sure why we have to articulate some very intricate standard.
The problems is that comparing the First and Second Amendment is "comparing apples and oranges". They are two different things and I snipped out CJ's comment about the First Amendment picking up baggage over time. Which is a perfect point in Dellinger's favour which he was too (your choice of term here) to have used during argument. We have a standard under Miller (broken record time):
The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
To summarise still yet more even yet another time, the Second Amendment must be interpreted as a whole. the declaration, that is “A well regulated Militia, being necessary to the security of a free State", and the guarantee, the "right of the people to keep and bear Arms, shall not be infringed” bit, need to be interpreted as a whole. There is loads of legal doctrine behind this. For example, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), discusses how none of the language of the Constitution can be considered "surplusage". The Constitution was written in a considered fashion and what was written must be considered essential to its interpretation.
This means a total ban on firearms in civilian hands is not unreasonable if it does not impair the efficacy of the militia/national guard. To quote Sandidge v. United States, 520 A.2d 1057, 1058 (D.C. 1987), which was precedent in DC prior to Parker:
"....After a jury trial, appellant was convicted of carrying a pistol without a license, D.C.Code ' 22-3204 (1981), possession of an unregistered firearm, id. ' 6-2311, and unlawful possession of ammunition, id. ' 6-2361....We now hold that D.C.Code '' 6-2311, 6-2361, and 22-3204 (1981) do not violate the second amendment. We affirm appellant's convictions....We agree with numerous other courts that 'the Second Amendment guarantees a collective rather than an individual right.'....The purpose of the second amendment is 'to preserve the effectiveness and assure the continuation of the state militia.'.... Appellant cannot show that possession of a handgun by an individual bears any relationship to the District of Columbia's desire and ability to preserve a well regulated militia."
Which gets to the coup de grace: The right "of the people". Dellinger was totally unprepared for this which makes me wonder what he was doing with his time, but. The term "people" is a term of art, which is the only real significance of Verdugo-Urquidez. The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution, and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. 494 U. S. 260, 264-266. People is not individual but can best be defined as representative of the group, which gets to my "we the people" comment.
Let's analyze the word "people" in the second amendment. It has been claimed that this word necessarily means each adult citizen in America. Let's look at how the word "people" is used in the preamble of the Constitution. "We the People of the United States....do ordain and establish this Constitution for the United States of America." It clear that the word "people" in this context is being used in a collective sense. Obviously, not every adult citizen in America was involved in writing the Constitution. Likewise, saying that the Russians have nuclear weapons does not necessarily mean that each Russian owns a nuclear weapon. The word Russians is being used here in a collective sense. Saying that the people have the right to bear arms does not necessarily mean that each adult citizen has a right to bear arms.
Akhil Reed Amar, a leading scholar of constitutional law and author of The Bill of Rights: Creation and Reconstruction, explains that the word people is used in a collective sense in the US Constitution.
"But the libertarian reading must contend with textual embarrassments of its own. The amendment speaks of a right of 'the people' collectively rather than a right of 'persons' individually. And it uses a distinctly military phrase: 'bear arms.'....The rest of the Bill of Rights confirms this communitarian reading. The core of the First Amendment's assembly clause, which textually abuts the Second Amendment, is the right of 'the people'--in essence, voters--to 'assemble' in constitutional conventions and other political conclaves. So, too, the core rights retained and reserved to 'the people' in the Ninth and Tenth Amendments were rights of the people collectively to govern themselves democratically. The Fourth Amendment is trickier: 'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated.' Here, the collective 'people' wording is paired with more individualistic language of 'persons.'"
Which takes us to this exchange between Gura and JJ. Scalia and Souter:
MR. GURA: Well, certainly, there were many people who were not eligible for militia duty, or not subject to militia service, who nevertheless were expected to, and oftentimes did, in fact, have guns.
JUSTICE SCALIA: Which shows that maybe you're being unrealistic in thinking that the second clause is not broader than the first. It's not at all uncommon for a legislative provision or a constitutional provision to go further than is necessary for the principal purpose involved.
The principal purpose here is the militia, but the -- but the second clause goes beyond the militia and says the right of the people to keep and bear arms.
Now, you may say the kind of arms is colored by the militia. But it speaks of the right of the people. So why not acknowledge that it's -- it's broader than the first clause?
MR. GURA: Well, we do acknowledge that, Your Honor.
JUSTICE SOUTER: Then why have the first clause? I mean what is it doing -- I mean what help is it going to be?
And before you go off and say Justice Kennedy may be sympathetic to the individual right camp, I want to point out this question to Gura about the above questioning: "Could it also be simply to reaffirm that the provisions in the main text of the Constitution remain intact?" I assume that J. Kennedy is referring to Article I, Section 8.
The major problem is that the individual right hinges on two things: one, the right of "the people" referring to individuals and, two, the interjection of the common law concept self-defence into the Second Amendment where it's not mentioned. Additionally, you have to interject standards which are constitutional constructs where they don't exist. Also, you have to remove the preamble from the Second Amendment and say it is not relevant. This means that there is language which is surplusage which is contrary to Constitutional interpretation.
The real death blow would be that changing the interpretation from the current "collective right" to an individual right would require defining the standard. Actually, making a standard where none existed when the collective right standard is already accepted legally. While it is a popular opinion that the Second Amendment covers many things which are totally outside its scope and even Constitutionally impossible, the reality is that it is to ensure the efficacy of the militia. This has been its legally accepted meaning. As I said, Dellinger had a position of power which he squandered which is stare decisis and the collective right standard.
I am not so certain the Court will find for an individual right, and there are lots of outside of court material that the justices will consider, one being the various briefs: in particular those of the ABA, District Attorneys in support of the petitioner, and former DoJ officials that suggest exactly what I do here. There is also the policy which must be considered. Do the justices wish to overturn, or at least brutally shake up, the current legislation regarding firearms. The justices must be aware of the amount of litigation which will follow a finding of an individual right. Part of Gura's case was that the court must shape the contour of the individual right. Another thing is that the Court becomes arbiter of legislation and the legislative process, which is something the court is loath to do. Even more salient, is it wise to overturn firearms legislation given the cost of gun violence in the United States?
09 March 2008
RKBA and Anti-semitism
Bob Levy is old enough to remember anti-Semitism. Hell, you don't need to be that old since a Temple University kid was beaten up for being Jewish within the last week. That's in Philadelphia which has a pretty large Jewish population.
On the other hand, he is not savvy enough to realise who he is getting into bed with. The RKBA crowd tends to like to talk inclusivity, but I keep seeing a video of a klan member saying "don't let them take away your guns". The logic was that the minorities, Jews and Blacks, will ruin the United States as they knew it.
Gun control is a tool of the culture war. And the right likes using fear of crime and minorities and government's lack of ability to "protect you" as a tool of control. And even though JFPO comes up pretty high if you google "jews gun control" it doesn't take long until you find something like this:
http://wsi.matriots.com/gun_legislation.html
Better yet, check out these posts:
http://www.wakeupfromyourslumber.com/node/5307
or
http://www.stormfront.org/forum/showthread.php/jews-gun-control-58147.html
Now, Bob, are you ready for the backlash if your little gamble fails? Is Alan Gura also a Jew? Judge Laurence H. Silberman was the author of this piece which is getting US Supreme Court attention. Now, doesn't this play into the hands of those who want to put fear of Jews into people's minds? The last blog entry shows my fears are justified.
Of course, it might be a Catholic, or more, who will stand up for the "collective right"/militia enabling interpretation. Don't forget that Catholics have been victims of prejudice as well. I mean, the US should be proud that Kennedy was president after all.
Bob, for all your bravado, are you certain that you will really prevail when the arguments you present were previously rejected by Justice Alito in US v. Rybar, 103 F.3d 273 (3d Cir. 1996)? In fact, with the exception of two opinions, the courts in this country have held that the Second Amendment only applies to the militia, that is the body organised under Article I, Section 8, and its direct activities.
Now, Bob I know you don't own a gun. I can probably guess that you've never been to a gun show either. I am not sure how you would react to all the Nazi regalia you would see them and books like the "Turner Diaries". Ever read that one, Bob? You should if you haven't. That book was the inspiration for the Oklahoma City bombing, Lots of the guns for criminals crowd say that type of thing will happen if the Court finds against them.
And they claim to be law abiding!
The world is a scary place, Bob, and you are helping make it scarier. Head you lose, tails they win. What will the body count rise to if the Personal right is affirmed? Where will that lead? There are 2255 petitions from federal prisoners and other challenges to severe federal gun sentences that will flood lower courts if the Supreme Court issues a broad Second Amendment ruling.
On the other hand, what will the RKBA crowd say if the Collective right is affirmed? Remember you are in cahoots with some serious right wing crazies.
On the other hand, he is not savvy enough to realise who he is getting into bed with. The RKBA crowd tends to like to talk inclusivity, but I keep seeing a video of a klan member saying "don't let them take away your guns". The logic was that the minorities, Jews and Blacks, will ruin the United States as they knew it.
Gun control is a tool of the culture war. And the right likes using fear of crime and minorities and government's lack of ability to "protect you" as a tool of control. And even though JFPO comes up pretty high if you google "jews gun control" it doesn't take long until you find something like this:
http://wsi.matriots.com/gun_legislation.html
Better yet, check out these posts:
http://www.wakeupfromyourslumber.com/node/5307
or
http://www.stormfront.org/forum/showthread.php/jews-gun-control-58147.html
Now, Bob, are you ready for the backlash if your little gamble fails? Is Alan Gura also a Jew? Judge Laurence H. Silberman was the author of this piece which is getting US Supreme Court attention. Now, doesn't this play into the hands of those who want to put fear of Jews into people's minds? The last blog entry shows my fears are justified.
Of course, it might be a Catholic, or more, who will stand up for the "collective right"/militia enabling interpretation. Don't forget that Catholics have been victims of prejudice as well. I mean, the US should be proud that Kennedy was president after all.
Bob, for all your bravado, are you certain that you will really prevail when the arguments you present were previously rejected by Justice Alito in US v. Rybar, 103 F.3d 273 (3d Cir. 1996)? In fact, with the exception of two opinions, the courts in this country have held that the Second Amendment only applies to the militia, that is the body organised under Article I, Section 8, and its direct activities.
Now, Bob I know you don't own a gun. I can probably guess that you've never been to a gun show either. I am not sure how you would react to all the Nazi regalia you would see them and books like the "Turner Diaries". Ever read that one, Bob? You should if you haven't. That book was the inspiration for the Oklahoma City bombing, Lots of the guns for criminals crowd say that type of thing will happen if the Court finds against them.
And they claim to be law abiding!
The world is a scary place, Bob, and you are helping make it scarier. Head you lose, tails they win. What will the body count rise to if the Personal right is affirmed? Where will that lead? There are 2255 petitions from federal prisoners and other challenges to severe federal gun sentences that will flood lower courts if the Supreme Court issues a broad Second Amendment ruling.
On the other hand, what will the RKBA crowd say if the Collective right is affirmed? Remember you are in cahoots with some serious right wing crazies.
05 March 2008
Guns in school
I was a victim of school bullying when I was in Kindergarten. A group of bigger boys beat up on me as the teachers watched doing nothing. I wanted to take a toy gun to school the next day for protection, but my mom stopped me. Now, we have kids who want to bring real guns to school for protection. The worst part of this is that the adults are encouraging this.
Additionally, I have been in Juvenile court where the judge says this action should not be allowed. I had a client who carried a gun for protection and actually used it, yet was charged with a crime. The special juvenile gun prosecutor, a life NRA member saw no disconnect in prosecuting this juvenile. My client was sent to Glen Mills for gun crime.
Now, are we allowing rich, white kids to pack heat, yet showing a bias against poor, black kids in the 'hood are are far more likely to be victims of gun violence? What sort of message is it when a kid is adjudicated delinquent for carrying a gun in self-defence, yet he could have applied for and received a permit to carry that firearm had he been a few years older?
The RKBA crowd have no problem with this, especially since they are the ones ensuring that criminals have unfettered access to firearms. It is no surprise to me that the Second Amendment Foundation's Alan Gottlieb is a convicted felon. Sure, it's for a "non-violent offence" (tax evasion), but he's a felon. The NRA had another slimy type on their board, Sandy Abrams, whose Valley Guns is one of the leading suppliers of crime guns in America, ranking 37 out of nearly 80,000 gun dealers nationwide in total crime guns traced to their stores. The Bureau of Alcohol, Tobacco, Firearms and Explosives has documented over 900 violations of federal law at Valley Gun, including illegal gun sales.
No wonder these people don't want gun trace data publicised! But, I digress.
The whole gun rights thing is ludicrous in that it is counterproductive to public safety. And more importantly, the truly law abiding gun owner. I find it amusing that the NRA is trying to discredit the AHSA (American Hunters and Shooters Association), a saner firearms group. I have to admit far more sympathy with AHSA's approach than the NRA. The AHSA realises that people involved in shooting sports need to be conservation minded and promote sane gun laws. It's kind of late for me though because urban sprawl has pretty much destroyed most places I can shoot in Eastern PA.
On the other hand, we hear lots of talk of gun rights and dealing with gun crime, but that is coming from organisations that strive to weaken and void firearms laws. The RKBA trumps people's property rights. In this case, a University can't have a policy against guns on campus without someone getting upset about it. But, doesn't someone's property rights count for something? In this case, a University's property rights.
No, the illusory right to keep and bear arms trumps people's other rights. It especially trumps society's interest in making sure that the streets are safe from the plague of gun violence and its costs to society.
Additionally, I have been in Juvenile court where the judge says this action should not be allowed. I had a client who carried a gun for protection and actually used it, yet was charged with a crime. The special juvenile gun prosecutor, a life NRA member saw no disconnect in prosecuting this juvenile. My client was sent to Glen Mills for gun crime.
Now, are we allowing rich, white kids to pack heat, yet showing a bias against poor, black kids in the 'hood are are far more likely to be victims of gun violence? What sort of message is it when a kid is adjudicated delinquent for carrying a gun in self-defence, yet he could have applied for and received a permit to carry that firearm had he been a few years older?
The RKBA crowd have no problem with this, especially since they are the ones ensuring that criminals have unfettered access to firearms. It is no surprise to me that the Second Amendment Foundation's Alan Gottlieb is a convicted felon. Sure, it's for a "non-violent offence" (tax evasion), but he's a felon. The NRA had another slimy type on their board, Sandy Abrams, whose Valley Guns is one of the leading suppliers of crime guns in America, ranking 37 out of nearly 80,000 gun dealers nationwide in total crime guns traced to their stores. The Bureau of Alcohol, Tobacco, Firearms and Explosives has documented over 900 violations of federal law at Valley Gun, including illegal gun sales.
No wonder these people don't want gun trace data publicised! But, I digress.
The whole gun rights thing is ludicrous in that it is counterproductive to public safety. And more importantly, the truly law abiding gun owner. I find it amusing that the NRA is trying to discredit the AHSA (American Hunters and Shooters Association), a saner firearms group. I have to admit far more sympathy with AHSA's approach than the NRA. The AHSA realises that people involved in shooting sports need to be conservation minded and promote sane gun laws. It's kind of late for me though because urban sprawl has pretty much destroyed most places I can shoot in Eastern PA.
On the other hand, we hear lots of talk of gun rights and dealing with gun crime, but that is coming from organisations that strive to weaken and void firearms laws. The RKBA trumps people's property rights. In this case, a University can't have a policy against guns on campus without someone getting upset about it. But, doesn't someone's property rights count for something? In this case, a University's property rights.
No, the illusory right to keep and bear arms trumps people's other rights. It especially trumps society's interest in making sure that the streets are safe from the plague of gun violence and its costs to society.
04 March 2008
Another mass shooting!
I want to get away from the Second Amendment and gun control rubbish, but yet another shooting happened at a West Palm Beach, Florida Wendy's where two people are dead and five are injured.
Florida is a shall issue state, which according to John Lott means that stuff like this shouldn't happen, as it shouldn't have happened at Virginia Tech.
Of course, the "RKBA" crowd will start screaming for yet more guns when more guns is the problem.
The RKBA crowd wants to drown out songs like Cheryl Wheeler's "If it were Up to me" that has the line "If it were up to me, I'd take away the guns." They don't want people to realise that something needs to be done about the uncontrolled proliferation of firearms. There is too much talk about "gun rights" and none about gun responsibilities.
Of course, there is no such thing as "gun rights", but the politicians are too cowardly to say that. And they are even more cowardly to not bring up gun responsibilities when the term "gun rights" is used.
RKBA folk like to say that cars, cigarettes, alcohol, and so are cause more deaths than do guns. the problem with that argument is that cars are useful. I would argue that we should wean the US from its cars in favour of mass transit, but cars are useful. On the other hand, I have to be taught to drive, licenced, insured, and my car is registered. I can't just get a car and drive it. I am also expected to drive responsibly or I can get hammered civilly and criminally.
I have the freedom to write and post this on the internet. Maybe people will read what I write and see that there are people who are frustrated by this lack of responsibility on the part of people who scream for their "rights". Maybe more of us will link up and work to vote for real change.
Maybe we will begin to see leadership in the media who pander to this talk of gun rights, yet don't do what they can to show that this is a myth, like John Lott's statistics.
Florida is a shall issue state, which according to John Lott means that stuff like this shouldn't happen, as it shouldn't have happened at Virginia Tech.
Of course, the "RKBA" crowd will start screaming for yet more guns when more guns is the problem.
The RKBA crowd wants to drown out songs like Cheryl Wheeler's "If it were Up to me" that has the line "If it were up to me, I'd take away the guns." They don't want people to realise that something needs to be done about the uncontrolled proliferation of firearms. There is too much talk about "gun rights" and none about gun responsibilities.
Of course, there is no such thing as "gun rights", but the politicians are too cowardly to say that. And they are even more cowardly to not bring up gun responsibilities when the term "gun rights" is used.
RKBA folk like to say that cars, cigarettes, alcohol, and so are cause more deaths than do guns. the problem with that argument is that cars are useful. I would argue that we should wean the US from its cars in favour of mass transit, but cars are useful. On the other hand, I have to be taught to drive, licenced, insured, and my car is registered. I can't just get a car and drive it. I am also expected to drive responsibly or I can get hammered civilly and criminally.
I have the freedom to write and post this on the internet. Maybe people will read what I write and see that there are people who are frustrated by this lack of responsibility on the part of people who scream for their "rights". Maybe more of us will link up and work to vote for real change.
Maybe we will begin to see leadership in the media who pander to this talk of gun rights, yet don't do what they can to show that this is a myth, like John Lott's statistics.
20 February 2008
More amusing RKBA comments
Making comments that the United States needs gun control is a lightning rod for the RKBA crowd to come and post loads of comments. Another one of these time wasters just posted duplicates of a comment, which I will not post of course, telling me to look at the "peer reviewed" Kleck and Lott articles. Yes, they were peer reviewed and have failed. Kleck and Lott call the other's work crap. So, I am not sure why this person bothers wasting his and others time, but...
I find it especially funny when the RKBA crowd write to foreign journalists. It is especially funny when the RKBA crowd write to British and Australian papers to try and persuade the journos that crime is high in Britain and Australia. Even funnier since the RKBA crowd really put their feet in it by not having the facts straight.
But the RKBA crowd never really does have its facts straight anyway. Probably why they like people like John Lott and Gary Kleck. Both Lott and Kleck sound scientific, but have been pretty much disproved. In fact, if Lott were on the other side of the debate, he would join Michael Bellesisles in the discredited academic department.
The RKBA crowd like to repeat the same things over and over again. I was looking at multiple posts of the same comment on one piece.
I guess the main point is that some people should avoid trying to sound intelligent, especially when they are dealing with people who know they are wrong. The RKBA crowd doesn't have their facts straight on the gun issue in Australia or Britain, but they love to interject nonsense about how the crime rate has gone up.
The problem is that the United States is the only country with an obscure and misunderstood bit of legislation written down on the books that acts as a barrier to any sane gun legislation. No other country, even if they have the same militia tradition, has barriers to firearms legislation.
Britain, not Germany, was the first country to have firearms regulation. This is despite having a similar constitutional guarantee to bear arms in The Bill of Rights from 1689 (1 Will. & Mar. sess. 2 c. 2): That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law. Amusingly enough, as in other guarantees of rights, this follows the right to be free of a standing army in time of peace.
Anyway, Britons have never had a "right" to own guns and handgun ownership was pretty rare. In fact, I was amused when I was young, a friend said something about my being from America that I had shot a gun. To which I replied that we had guns and hunted in England as well. My family was of the class of people who had this privilege and ability.
I would like to see more action in the area of gun control, but like the draft and military service, Americans are rather apathetic until something effects them.
Then they become very protective. I find Americans to be a rather self-centred people when it comes to politics.
I find it especially funny when the RKBA crowd write to foreign journalists. It is especially funny when the RKBA crowd write to British and Australian papers to try and persuade the journos that crime is high in Britain and Australia. Even funnier since the RKBA crowd really put their feet in it by not having the facts straight.
But the RKBA crowd never really does have its facts straight anyway. Probably why they like people like John Lott and Gary Kleck. Both Lott and Kleck sound scientific, but have been pretty much disproved. In fact, if Lott were on the other side of the debate, he would join Michael Bellesisles in the discredited academic department.
The RKBA crowd like to repeat the same things over and over again. I was looking at multiple posts of the same comment on one piece.
I guess the main point is that some people should avoid trying to sound intelligent, especially when they are dealing with people who know they are wrong. The RKBA crowd doesn't have their facts straight on the gun issue in Australia or Britain, but they love to interject nonsense about how the crime rate has gone up.
The problem is that the United States is the only country with an obscure and misunderstood bit of legislation written down on the books that acts as a barrier to any sane gun legislation. No other country, even if they have the same militia tradition, has barriers to firearms legislation.
Britain, not Germany, was the first country to have firearms regulation. This is despite having a similar constitutional guarantee to bear arms in The Bill of Rights from 1689 (1 Will. & Mar. sess. 2 c. 2): That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law. Amusingly enough, as in other guarantees of rights, this follows the right to be free of a standing army in time of peace.
Anyway, Britons have never had a "right" to own guns and handgun ownership was pretty rare. In fact, I was amused when I was young, a friend said something about my being from America that I had shot a gun. To which I replied that we had guns and hunted in England as well. My family was of the class of people who had this privilege and ability.
I would like to see more action in the area of gun control, but like the draft and military service, Americans are rather apathetic until something effects them.
Then they become very protective. I find Americans to be a rather self-centred people when it comes to politics.
19 February 2008
Let me get this straight...
The RKBA answer to the problem of out of control guns is always to add more guns to the situation. Usually handguns, which are perfectly useless for any real defensive purpose. The RKBA crowd also wants to have these guns concealed. Personally, I prefer a Remington 870 or an M4. In fact, I would like to walk around carrying a para stock minimi (M249 SAW to you septics).
I think that carrying a long gun in the open is far more of a deterrent than a handgun which is concealed in an inconvenient place. People are less likely to commit a crime is they know they will be shot. Besides the Second Amendment says "bear arms" and court cases have come out that concealed weapons are not under the scope of the Second Amendment. But, that is not really my point.
The RKBA answer is that criminal, lunatics, terrorists, and other disqualified persons from purchasing firearms will always have access to firearms, so why make it difficult for them to get them in the first place? I mean it makes far more sense to the RKBA crowd to deal with the crime that is generated rather than prevent it.
The RKBA line is akin to "stop rape, say yes" or "burglars will get into your house, so leave the doors and windows open".
I mean criminals walk around with concealed weapons, so let's make it easier for people to walk around with concealed weapons. School and bar shootings happen, so let's make it easier to go into schools and places where alcohol is served with a firearm.
It's rather funny that Eric Thompson, the owner of Internet-based TGSCOM Inc., this is the Internet firearms retailer who sold guns and accessories to the shooters involved in the Virginia Tech and Northern Illinois University incidents, is now promoting a concealed weapons law. Thompson called the purchases an unfortunate coincidence but said it's led him to believe he now has a "special responsibility to do all I can to try and prevent further loss of life."
Gee, Eric, maybe you should open a candle shop. It's too bad this guy isn't getting whacked with a serious law suit. Maybe that might make him think about personal responsibility. On the other hand, Eric probably doesn't feel too much guilt about being an instrumentality in two mass shootings. It's just a business to him.
Problem is, Eric, that your business is selling the instrumentalities used in killing. Think about that one.
Thompson is opening a website called www.gundebate.com, which is yet another one of those RKBA sites which will insist on more guns into an already oversaturated market and less responsibility.
Now, there is the dichotomy in the Liberal-Conservative debate which seems to get lost when the RKBA crowd come in and it's called "personal responsibility". Isn't the real responsibility if someone is selling dangerous items to make sure that people who will abuse them NOT have access to these items? Unfortunately, the RKBA crowd will use every linguistic trick in the book to try to hide the fact that they are putting others at risk. The RKBA crowd is as irresponsible as you can get when it comes down to public safety.
They hide behind something which was designed for "the Security of the Free State" and do everything to ensure that it is not a secure state. In fact, by claiming a right without accepting the incumbent responsibilities, they are putting the state at risk. In fact, they really aren't claiming the right which is mentioned in the Second Amendment.
The Second Amendment doesn't mention self-defence, hunting, and the right of revolt. The last one is an absolute absurdity (right of revolt against a tyrannical government). None of these concepts are mentioned in the Constitution. In fact, the last one (right of revolt against a tyrannical government) is mentioned, but not as a right. It is mentioned as the crime of treason in Article III, Section iii.
The debates about the Second Amendment deal with the Federal military establishment versus a State Militia. The fear was of a Standing Army, which 18th Century types believed was the tool of a tyrant. The Constitution is filled with devices to keep the military in check, one of which was the Second Amendment.
Unfortunately, the military budget is several trillion dollars, which is a violation of my right under the Second Amendment to be free of a standing army.
As I have said, the Second Amendment is an anachronism which needs to be understood. It doesn't need to be repealed, since it is meaningless. The militia system as conceived at the time the Constitution was written was non-existent. In fact, it was a military establishment (the French) that won the War for independence. The United States would be a whole lot better if its "leaders" would show some backbone and stop kow-towing to imaginary rights and silly myths.
As for RKBA attempts at patriotism, I refer to Ambrose Bierce's Devil's Dictionary In Dr. Johnson's famous dictionary patriotism is defined as the last resort of a scoundrel. With all due respect to an enlightened but inferior lexicographer I beg to submit that it is the first.
I think that carrying a long gun in the open is far more of a deterrent than a handgun which is concealed in an inconvenient place. People are less likely to commit a crime is they know they will be shot. Besides the Second Amendment says "bear arms" and court cases have come out that concealed weapons are not under the scope of the Second Amendment. But, that is not really my point.
The RKBA answer is that criminal, lunatics, terrorists, and other disqualified persons from purchasing firearms will always have access to firearms, so why make it difficult for them to get them in the first place? I mean it makes far more sense to the RKBA crowd to deal with the crime that is generated rather than prevent it.
The RKBA line is akin to "stop rape, say yes" or "burglars will get into your house, so leave the doors and windows open".
I mean criminals walk around with concealed weapons, so let's make it easier for people to walk around with concealed weapons. School and bar shootings happen, so let's make it easier to go into schools and places where alcohol is served with a firearm.
It's rather funny that Eric Thompson, the owner of Internet-based TGSCOM Inc., this is the Internet firearms retailer who sold guns and accessories to the shooters involved in the Virginia Tech and Northern Illinois University incidents, is now promoting a concealed weapons law. Thompson called the purchases an unfortunate coincidence but said it's led him to believe he now has a "special responsibility to do all I can to try and prevent further loss of life."
Gee, Eric, maybe you should open a candle shop. It's too bad this guy isn't getting whacked with a serious law suit. Maybe that might make him think about personal responsibility. On the other hand, Eric probably doesn't feel too much guilt about being an instrumentality in two mass shootings. It's just a business to him.
Problem is, Eric, that your business is selling the instrumentalities used in killing. Think about that one.
Thompson is opening a website called www.gundebate.com, which is yet another one of those RKBA sites which will insist on more guns into an already oversaturated market and less responsibility.
Now, there is the dichotomy in the Liberal-Conservative debate which seems to get lost when the RKBA crowd come in and it's called "personal responsibility". Isn't the real responsibility if someone is selling dangerous items to make sure that people who will abuse them NOT have access to these items? Unfortunately, the RKBA crowd will use every linguistic trick in the book to try to hide the fact that they are putting others at risk. The RKBA crowd is as irresponsible as you can get when it comes down to public safety.
They hide behind something which was designed for "the Security of the Free State" and do everything to ensure that it is not a secure state. In fact, by claiming a right without accepting the incumbent responsibilities, they are putting the state at risk. In fact, they really aren't claiming the right which is mentioned in the Second Amendment.
The Second Amendment doesn't mention self-defence, hunting, and the right of revolt. The last one is an absolute absurdity (right of revolt against a tyrannical government). None of these concepts are mentioned in the Constitution. In fact, the last one (right of revolt against a tyrannical government) is mentioned, but not as a right. It is mentioned as the crime of treason in Article III, Section iii.
The debates about the Second Amendment deal with the Federal military establishment versus a State Militia. The fear was of a Standing Army, which 18th Century types believed was the tool of a tyrant. The Constitution is filled with devices to keep the military in check, one of which was the Second Amendment.
Unfortunately, the military budget is several trillion dollars, which is a violation of my right under the Second Amendment to be free of a standing army.
As I have said, the Second Amendment is an anachronism which needs to be understood. It doesn't need to be repealed, since it is meaningless. The militia system as conceived at the time the Constitution was written was non-existent. In fact, it was a military establishment (the French) that won the War for independence. The United States would be a whole lot better if its "leaders" would show some backbone and stop kow-towing to imaginary rights and silly myths.
As for RKBA attempts at patriotism, I refer to Ambrose Bierce's Devil's Dictionary In Dr. Johnson's famous dictionary patriotism is defined as the last resort of a scoundrel. With all due respect to an enlightened but inferior lexicographer I beg to submit that it is the first.
08 February 2008
RKBA comments
The RKBA crowd takes over the discussion of the Second Amendment whenever possible. Their arguments are like weeds in a garden which are allowed to take over. Weeds of ignorance and illogic.
There have been RKBA people who wish to comment on this blog, but I don't allow it. I will not post their comments.
The Bill of Rights only protects you from government interference, not private. I am not a governmental body in this blog, so I can censor to my heart's content.
You have more than enough fora to post your bullshit. I don't really want to hear your opinions. Nor do I need to allow them to be published more than they are. So, I am under no obligation to post your nonsense.
As for my discussions of Heller. No, they are not a red herring. The precedent in Sandidge v. U. S., 520 A.2d 1057 (D.C. 1987) which was the law in The District of Columbia and followed the "Collective Right" interpretation. The Parker court admitted that it ignored the precedent of Sandidge.
Nowhere in the Second Amendment are the words "self-defence" written. And, until you can show me they are written there, which you cannot, the Second Amendment does not apply to self-defence. It does apply to membership in a militia organised under Article I, Section 8 and only in those circumstances.
Heller has no right to own a gun on his own property any more than I can have a meth lab on mine or sex with a child if the firearm is illegal, which they are under DC law. Private property does not allow for sovereignty to commit illegal acts.
Is that clear enough for you Mr. RKBA moron? Please do not come here with your fallacies and poor arguments.
There have been RKBA people who wish to comment on this blog, but I don't allow it. I will not post their comments.
The Bill of Rights only protects you from government interference, not private. I am not a governmental body in this blog, so I can censor to my heart's content.
You have more than enough fora to post your bullshit. I don't really want to hear your opinions. Nor do I need to allow them to be published more than they are. So, I am under no obligation to post your nonsense.
As for my discussions of Heller. No, they are not a red herring. The precedent in Sandidge v. U. S., 520 A.2d 1057 (D.C. 1987) which was the law in The District of Columbia and followed the "Collective Right" interpretation. The Parker court admitted that it ignored the precedent of Sandidge.
Nowhere in the Second Amendment are the words "self-defence" written. And, until you can show me they are written there, which you cannot, the Second Amendment does not apply to self-defence. It does apply to membership in a militia organised under Article I, Section 8 and only in those circumstances.
Heller has no right to own a gun on his own property any more than I can have a meth lab on mine or sex with a child if the firearm is illegal, which they are under DC law. Private property does not allow for sovereignty to commit illegal acts.
Is that clear enough for you Mr. RKBA moron? Please do not come here with your fallacies and poor arguments.
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