US V Rybar on the Second Amendment

Editorial note: This is the Section of U.S. v. Rybar,103 F.3d 273 (3d Cir. 1996) that deals with Rybar's Second Amendment defence. It addresses the arguments found in the pro-Heller briefs and finds them without merit.


Second Amendment

As an independent basis for his argument that section 922(o)
is unconstitutional, Rybar relies on the Second Amendment of the
Constitution, which provides: "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." U.S.
Const. amend. II.

In support, Rybar cites, paradoxically, the Supreme Court
decision in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816,
83 L.Ed. 1206 (1939), where the Court upheld the
constitutionality of a firearms-registration requirement against
a Second Amendment challenge. Rybar draws on that holding,
relying on the Miller Court's observation that the sawed-off
shotgun in question had not been shown to bear "some reasonable
relationship to the preservation or efficiency of a well
regulated militia." Brief of Appellant at 24-25; Miller, 307
U.S. at 178, 59 S.Ct. at 818. Drawing from that language the
contrapositive implication, Rybar suggests that because the
military utility of the machine guns proscribed by section 922(o)
is clear, a result contrary to that reached in Miller is
required, and the statute is therefore invalid under the Second
Amendment.

Rybar's reliance on Miller is misplaced. The language Rybar
cites is taken from the following passage:

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

307 U.S. at 178, 59 S.Ct. at 818.

We note first that however clear the Court's suggestion that
the firearm before it lacked the necessary military character, it
did not state that such character alone would be sufficient to
secure Second Amendment protection. In fact, the Miller Court
assigned no special importance to the character of the weapon
itself, but instead demanded a reasonable relationship between
its "possession or use" and militia-related activity. Id.; see
Cases v. United States, 131 F.2d 916, 922 (1st Cir.1942)
(susceptibility of firearm to military application not
determinative), cert. denied, 319 U.S. 770, 63 S.Ct. 1431, 87
L.Ed. 1718 (1943). Rybar has not demonstrated that his
possession of the machine guns had any connection with
militia-related activity. Indeed, as noted above, Rybar was a
firearms dealer and the transactions in question appear to have
been consistent with that business activity.

Nonetheless, Rybar attempts to place himself within the
penumbra of membership in the "militia" specified by the Second
Amendment by quoting from 10 U.S.C. section 311(a):

The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in
section 313 of title 32, under 45 years of age who are ...
citizens of the United States....

Rybar's invocation of this statute does nothing to establish
that his firearm possession bears a reasonable relationship to
"the preservation or efficiency of a well regulated militia," as
required in Miller, 307 U.S. at 178, 59 S.Ct. at 818. Nor can
claimed membership in a hypothetical or "sedentary" militia
suffice. See United States v. Hale, 978 F.2d 1016, 1020 (8th
Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123
L.Ed.2d 174 (1993); United States v. Oakes, 564 F.2d 384, 387
(10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55
L.Ed.2d 521 (1978); United States v. Warin, 530 F.2d 103, 106
(6th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d
1185 (1976).

Rybar boldly asserts that "the Miller Court was quite simply
wrong in its superficial (and one-sided) analysis of the Second
Amendment." Brief of Appellant at 27. As one of the inferior
federal courts subject to the Supreme Court's precedents, we have
neither the license nor the inclination to engage in such
freewheeling presumptuousness. In any event, this court has on
several occasions emphasized that the Second Amendment furnishes
no absolute right to firearms. See United States v. Graves, 554
F.2d 65, 66 n. 2 (3d Cir.1977); Eckert v. City of Philadelphia,
477 F.2d 610 (3d Cir.), cert. denied, 414 U.S. 839, 843, 94 S.Ct.
89, 104, 38 L.Ed.2d 74, 81 (1973). Federal attempts at firearms
regulation have also consistently withstood challenge under the
Second Amendment. See, e.g., Hale, 978 F.2d at 1020; Warin, 530
F.2d at 108; United States v. Three Winchester 30-30 Caliber
Lever Action Carbines, 504 F.2d 1288, 1290 n. 5 (7th Cir.1974);
United States v. Johnson, 497 F.2d 548, 550 (4th Cir.1974);
Cases, 131 F.2d at 923. We see no reason why section 922(o)
should be an exception.

Are you reading this, Justice Alito?

This blog started as a joke after I realised that my dog has been in more courtrooms than Harriet Miers. No joke. Ask Arnie Silverstein and his partner; they will verify this. There is a District Justice in Montgomery County who also knows I come to court because she brings her dog as well. So, there are dogs out there who have been in Court more than some Judicial nominees, but that is not the point.

Neither is the point that I find this blog comes out top in the search results when I google certain subjects.

I do this for myself, but I wouldn't mind the recognition. Or money. Michael is truly a slacker given that friends he went to school with are in positions of power: Governors, Judges, Presidential advisors, or high government officials. No, Michael is the honest lawyer, which means he is BROKE .

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

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

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

It is even sillier to say it has something to do with the ability to revolt against a "tyrannical government".

As I have before, none of those concepts are mentioned in the Second Amendment, and the right of revolt is totally ridiculous as it goes against everything in the Constitution.

I know people who know Justice Alito and they say he is a very intelligent and considered judge. I would like to think that he is not swayed by poor arguments such as the majority of people believe that the Second Amendment guarantees a personal right to things which are not within the scope of that Amendment (self-defence, hunting, shooting sports in general, or "revolt"). It is fallacious reasoning to be swayed by numbers especially when those numbers are wrong.

I read the briefs for Heller that argue the personal right and I see fallacious arguments, false history, misquotations,and so on. The fact is that the Second Amendment has been interpreted as being related to the preservation or efficiency of a well-regulated militia.


The court denied Rybar's motion to dismiss Counts I and III.
The court held that section 922(o) was "a valid exercise of the
authority granted to Congress under the Commerce Clause" and was
compatible with Second Amendment protections "because this
defendant's possession of a machine gun was not reasonably
related to the preservation or efficiency of a well-regulated
militia."

OK, that may not be the best excerpt from the Rybar decision, but it makes my point.

Please, Justice Alito, you have shown reason in interpretation of the Second Amendment in the past. I hope that you can persuade the other justices that the Personal right interpretation is fallacious and dangerous to society.

You are being "dogged" in this regard.

Note: I just googled "Justice Alito Rybar" and this came up toward the front of the results! I hope Justice Alito reads this!

More iPOS moaning

OK, I am frustrated as heck that I bought an iPOS and have had it for nearly two weeks. The iPOS is unusable as I am unable to load my music on and get the effing thing to work. This experience has confirmed everything I ever believed about iPOSs.

my message to realplayer support

Hi,
I have an iPod (iPOS or iCrash) classic 160 GB and I would really prefer to use realplayer to manage it rather than iTunes. First off, I don't appreciate how iTunes dictates what goes on my iPOS. It wants me to stick my entire music collection on my iPOS rather than what I want on it.

Anyway, I eventually end up with the message that my iPOS's database is corrupt when I try to load my music on with realplayer. Unfortunately, Apple's solution is to force you to wipe your disk and reload the music rather than just repair the database.

And, Apple refuses to support the iPOS if you are not managing it with iTunes.

Anyway that there could be a utility that repairs the song database rather than force me to reload my music? This is really annoying since I have to tie up my computer for days on end to load my music. It makes far more sense to just be able to repair the database like better MP3 players are able to do rather than force me to reload my entire music collection.

Follow up: Realplayer support wrote back that they have no power over third party vendors. I still hate iTunes which somehow managed to load a bunch of material I didn't want on my iPOS, namely the Hitchhiker's Guide to the Galaxy and Goon Show spoken word stuff.

I hate Ipods!

The ipod has always been overrated in my opinion. I am thoroughly convinced of this after buying an ipod classic 160 GB player. In fact, I call it the iPOS: i Piece of Shit.

I am using realplayer to manage my ipod, not itunes. I have a music library of well over 3000 CDs and my MP3 library is around 34000 songs! I still have around 100 vinyl records (from a time when I had around 800). Not everything I own is on my computer, yet. I can't really use things like napster, kazaa, morpheus, or any of those other file sharing databases because people will be draining MY computer. The first time I logged on one of these programs, some hog was downloading a whole album from me within the first minute. That stopped me from being able to do anything in the world of file sharing.

Now, Itunes will sync my unit with every song on my computer which is well over the directory capacity of 160 GB. Anyway, I don't really want to have my whole collection on disc, just a few songs (it was at 16k songs when my iPOS last crashed). The songs show up if I use windows explorer, but the iPOS won't recognise that they are there. It does recognise that there is data which is occupyiing 74 GB of space, but it refuses to be able to do anything.

The apple solution is to obliterate all this data and force me to reload. This is a task which will take me over two days. Even if I am not sitting at my computer, this occupies loads of computer time.

Now, I just called apple and they said that they do not support me if I am not using itunes to manage my iPOS. So, basically, they are not willing to make a unit that will self-repair the library from what I am understanding.

I own a couple of other MP3 players, and my living room computer is technically a giant MP3 player (with over 36k songs on it). Every other MP3 player can self repair the library, such as my Toshiba Gigabeat or creative zen nomad. Not the IPOS!

The worst part of this is that there are software programs out there which claim they can repair my song database, but they don't work with the iPOS classic. This is kind of amazing to me. Actually, I am obviously not alone as there are several programs out there and multitudes of posts from others who have lost their data due to a corrupt iPOD database.

On the other hand, I think the iPOS is one of the most over hyped units on the market, which is too stinking bad. I would strongly advise anyone not to get this, but Toshiba and creative are not the market force that apple is when it comes to MP3 players. And finding an MP3 player with this type of capacity is really difficult. That is the only reason I bought the iPOS, which I am truly regretting.

The other units with similar capacity are the Archos, DMC xclef, and Wolverine Data. You can find some creative zen nomads that have been rebuilt with larger drives. Unfortunately, despite the fact that the technology exists for me to carry my music collection with me, the marketplace hasn't caught up with it. Worse, its pretty hard to find other units besides the iPOS out there that do work in terms of having enough disc capacity for a minimum of songs, such as the Gigabeat or Creative coming in at 40-60GB.

So, the iPOS has mostly marketing working for it and not much else. In fact, the iPOS is pretty much another case of monopolising the market which is surprising coming from Apple, which tries to come off as not being Microsoft. In the case of the iPOS, Apple has done everything to hype its unit, but really isn't offering a product which is worth buying.

So, if you haven't wasted your money on a iPOS with a huge disc drive, don't. Go looking for a product which actually functions.

This is only a part of my anti-iPOS rant, but it is a very significant complaint, which I hope Apple, or some clever software developer will fix.

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.

National Service

It seems a joke in Britain that a conservative politician will say that "we need to bring back national service" when youth act out of control. On the other hand, I am thinking this isn't a bad idea. For those who don't know what national service was, it was a compulsory two year stint in the military which was in effect from 1939 until 1960 in Britain.

I was listening to the Radio Times interview with Eric Fair and it was pointed out that we probably wouldn't be in Iraq or Afghanistan if there was still a draft. Most Americans want to avoid military service. And they want to avoid military service if there is any risk to life and limb. On the other hand, there is no risk that the average American will go into the army which means most people don't care what the military does.

Likewise, I am pretty sure that any love for the Second Amendment would dwindle away if people who claim to support it were told they had to go to boot camp for a couple of months training, give up a couple of days a month for drill, and then go on exercises for a week or two a year. All this would not count toward their vacation time. I know that it was this type of sickener that caused the institution of the universal militia to die in the first place. Most people wanted exemptions from militia service, or would pay someone to do their militia duties.

But, this isn't about the War in Iraq, it is about something stupid I read this morning.

David McGrath, a university literature professor in Alabama wishes to carry a gun into class to be able to "protect his students". Prof. McGrath's states that:

I am no Rambo. I am a middle-age English professor with no military background. But as an outdoorsman, I have a passing acquaintance with the use of firearms, experience which could be refined to a skill of safety and competence, with adequate training.

Now, Prof. McGrath, I am a person with military experience Worse case scenario is that you end up being shot by being mistaken for the gunman. Best case is that you only add to the confusion and panic.

A situation with a gunman requires more than being able to shoot a gun, it requires being able to deal with the panic and confusion which accompanies that situation.

A civilian with a firearm in a situation like a school shooting is only going to add to the confusion when the professionals arrive. The last thing that is needed is armed civilians bungling around trying to be heroes.

Now, I posted this in another forum and someone mentioned the Colorado Church where a "concealed carry permit holder" saved the day. Now, if I remember correctly, that permit holder was a security guard, not Joe Blow professor who has a passing knowledge of guns. Anyway, I can come up with many more circumstances where trained officers were unable to stop the shooters, such as Columbine and the Kirkwood City Council shootings.

Quite frankly, an armed civilian is far more likely to add to the confusion than help it. Not to mention put themselves and others at risk.

Of course, maybe we should allow armed civilians. This is called the Darwin Awards. Armed civilian is seen by the SWAT team and is picked off. I am waiting for that to happen. Or that the armed civilian does cause more harm than good by shooting innocent bystanders adding to the carnage.

Additionally, the armed civilian is not insulated from lawsuits the way that the police or military are. So, if the armed civilian does shoot the wrong person, they can be sued into penury.

On the other hand, the RKBA crowd loves the myth that an armed person can save the day. They seem to have had a steady diet of dime novels, movies, and fairy tales that portray this myth. I am not sure if reality can be brought in to these people's minds.

On the other hand, maybe we would see a drastic change of opinion if the RKBA heroes had to go through military training and exercises of situations where people are shooting back at them. It is one thing to shoot at a target, or to hunt something which can't shoot back as opposed to hunting the most dangerous game.

A foe who has no regard for human life and is willing to kill as many people as possible before being killed himself.

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.

Freedom

I have to admit the last place I saw nearly as much security as currently exists in the US was when I was in Ulster. At least the US hasn't gotten to the point where you are searched pretty much everywhere you go. Probably because people would scream about their freedoms being trampled.

Why this comment? Because other people are talking about the hypocritical war on terrorism because nothing is being done to control firearms.

One person can rack up a body count of 33 bodies, yet nothing is done about it. A couple of people and a rifle (John Lee Malvo and John Allen Muhammad) had the US capital area in an lock down for three weeks. The body count racks up in senseless killings, yet we are told this is the cost of freedom.

Hey, if this is your idea of freedom, pal, I think the alternative isn't so bad. I mean, this is beginning to feel more and more like a totalitarian state because people are scared. Yet, the voice of the people is being silenced by some loud squeaky wheels who are not working toward "the security of a free State".

On the other hand, three people can die from eating spinach and it all gets yanked from the stores.

What is wrong with this picture? The Second Amendment talks about "a well regulated militia being necessary to the security of a free State". Sure there are people who want to take the last part out of context and say it has something to do with self-defence. The problem is that the Second Amendment addresses Security of a free state and relates back to Article I, Section 8 the militia is a body that is "to execute the laws of the union, suppress insurrections and repel invasions." It is "organized, armed, and disciplined...according to the discipline prescribed by Congress".

It is ridiculous to say that the Second Amendment is to prevent a tyrannical government, or to allow for waging war upon a tyrannical government since Article III, Section iii states that doing just that is TREASON!

Sorry, if there is a personal right, it is that you must be allowed to be a member of the National Guard. But the Dick Act of 1901 got rid of the Universal Militia because most people didn't want to give up their free time for militia duties.

As I have pointed out, the Second Amendment is an anachronism. It is irrelevant to modern society since most people aren't willing to accept the need to belong to a militia organised under Article I, Section 8 to be able to accept that right. The RKBA crowd wants to divorce "the security of a free State" from the equation and make it a licence for anarchy.

Unfortunately, "the security of a free State" is the most important part of the Second Amendment and to demand freedom from the responsibilities which come with the right is to totally negate the Second Amendment. It is to continue to see high body counts from senseless gun violence because people who don't understand the right to bear arms demand unfettered access to firearms.

Show me the words "self-defence" in the Second Amendment and I will grant the RKBA crowd their point. The Second Amendment does not mention self-defence and it is an irrelevance to tie that concept to the Second Amendment. It is even more absurd to tie the ability to revolt against the government to the Second Amendment.

We are not dealing with loose cannons, we are dealing with loose firearms. Loose firearms which are just as much a threat to society as is Al-queda. I would probably say that the cost of gun violence takes more of a toll on US society than Al-queda has ever done, yet nothing is done about it.

Until we have a leader who has the guts to say that the Second Amendment only guarantees the right of the militia to be armed, we will continue to lose the war on terrorism.

Why I don't call myself a US citizen.

I loved living in Washington, DC. It is a city which tries to show an image of what the United States really deep down wants to be. People come there and love the metro, yet go home to their private cars. There are loads of cool museums and loads of restaurants.

And, strict gun laws. These gun laws bother the heck out of people who don't live in Washington, DC. Probably because Washington, DC is the capital of the United States, yet it has strict gun laws. These gun laws have been found constitutional up until a legal aberration happened in Parker v. DC. That legal aberration was that a rogue judge decided he didn't like precedent and wants to make his own law. The same people who get upset when this happens in situations they consider "liberal" applaud this as a correct decision (smell the hypocracy?).

The United States doesn't have leaders. Leaders are people who lead when the followers go astray. They have the guts to say this is a wrong idea.

I cannot support Barack Obama because he cannot say that the Second Amendment only means that we have a citizen's militia (as opposed to a standing army). What the Second Amendment means is that we should not have a trillion dollar military budget because people are willing to give up their personal time for training and militia duties. But, the Second Amendment is meaningless since most people aren't willing to take the responsibilities incumbent with that right. How many of these Second Amendment "supporters" are willing to volunteer for Iraq or Afghanistan? Yes, this means giving up their liberty to defend the United States because their commander in chief commands it.

It's not about saying that you belong to an "unorganised militia" and demanding to bear arms. The unorganised militia is a draft pool for the organised militia. Actually, it was better explained as a construct so that the "universal militia" could be kept up "in spirit" because people weren't willing to give up their time to be an actual militia member. The "unorganised militia" comment is a silly as saying that Ted Nugent was a Viet Nam vet because he had a draft card. Never mind Terrible Ted, who is happy killing things that can't shoot back was a sniveling coward who showed up at his draft board physical, with no personal hygiene. having eaten nothing but junk food and Pepsi, and with a week to go until the physical, he stopped using the bathroom altogether. When the big day came, he had been living in excrement-caked and urine-stained pants.

And he boasted about this in a 1990 Detroit Free Press interview.

No, the RKBA crowd want the guns without the responsibilities.

So, Yes, THE SECOND AMENDMENT IS MEANINGLESS! It is an anachronism which prevents the people of the United States from being able to have sane gun laws. It doesn't need to be repealed, it needs to be understood. The real meaning needs to be taught rather than the lies pushed upon us by "public interest groups" which don't serve the REAL public interest.

I am not proud of the United States since it lacks leaders. It seems to lack people with any intelligence. And it definitely seems to lack people who are willing to stand up for their principals when they are being trampled.

Censorship

You have no right to read this.

The First Amendment gives me the right to write it, but doesn't necessarily give you the right to read it. While the right to free speech certainly infers a corresponding right to hear what is being spoken or written, the First Amendment doesn't explicitly grant such a right to read anything you want. So theoretically, it could be argued that no such right exists.

The key word being "theoretically". As a practical matter, the freedom to read whatever we choose is such an intrinsic part of the US or British national character as to make legal theory superfluous. People would rise in outrage if government ever attempted to proscribe what they read. Theory and reality are often two different things.

Add in that my ability to write or say what I want will allow ideas to get out, even if there are attempts to censor them.

Now, I just moderated some comments about my Mitt Romney piece which may have come from some Mormons (Mormons and Jews tend to proselytise in a similar manner). They are happy to see people accepting their beliefs and defending them as well. I will defend their ability to practise their beliefs even if I have some personal qualms about their faith as an ardent believer that the war of independence and the US Constitution are a disaster and not divinely inspired.

The American War for Independence was satanic in my opinion, but I don't see Mormons as satanic. Their beliefs are not satanic. I would like to think that the Mormons believe in the Spirit of the Constitution and what it means than what this country has become. But I also think most of the founding fathers (and mothers) would probably think this country was a disaster as well if they were able to see what it has become.

On the other hand, as I have said before, I don't see any reason to give the RKBA crowd more of a soapbox to push their opinions upon us. They flood the internet with repeated lies. Repeating these lies will not make it the truth. And the RKBA position on guns is detrimental to society. which is made especially clear after waking to yet another mass shooting in Illinois.

As a lawyer, my job is to state what the law IS, not what I would like it to be. And, until the Supreme Court states otherwise, the Second Amendment protects only the militias which are organised under Article I, Section 8.

I have to update this to say that Scalia's opinion in District of Columbia v. Heller, 554 U.S. ___ (2008), is a piece of political hackery which he should be ashamed of if he truly believes what he professes to believe. So, I remain unconvinced of the validity of this decision as legal precedent.

So I see no reason why District of Columbia v. Heller, 554 U.S. ___ (2008) should not be overturned and replaced with something which makes proper legal sense or why Washington, DC's locally enacted law should have been judicially repealed. Isn't that judicial activism anyway?

Not to mention tyranny.

I am glad to see that I have readers and I am glad to support people's right of conscience if it doesn't hurt anyone. Quite frankly. I have absolutely no problem with any of Mormonism's beliefs. As I said before, I think that they are absolutely dead wrong about the Declaration of Independence and Constitution being devinely inspired. Along with finding retroactive baptism a bit odd, which I am sure my dead Jewish relations who are retroactively baptised do as well.

But, My Mormon relations tell me that my Jewish relations who are retroactively are free to accept or reject Mormonism as they please. Not to mention that the Mormons have helped me in my genealogical pursuits. I have also donated genealogical material to the Mormons who will protect it. So, I have absolutely no problem with Mormons and their beliefs since they are not forcing them upon me.

The Mormons aren't the Branch Davidians, yet I see some of the religious right defend the Branch Davidians even though the BDs were engaged in illegal activities. This is because they were a "Church".

The Mormons are law abiding and not prone to force their beliefs on others, which is what the First Amendment right is about.

And, I really don't care if anyone reads this blog, but it is my right to write it. This is the real first freedom which protects all other freedoms. The Second Amendment's significance is so lost in history and polemic that it is meaningless.

But, it does feel good if my writings make a difference.

Mitt Romney: Mormonism and the religious right

I have to admit it is humourous to me to hear Mitt Romney being accused of not being "Christian" since he is a Mormon. I have had a thing for Mormonism since I was a youth and have to admit more knowledge than the average person about this faith. The cabinet d'avocats we were associated when I lived in Belgium represented the Mormons.

An anecdote from that period is that a couple of Mormon missionaries were arrested by the Belgian police since the Police weren't sure what exactly Mormon missionaries did. Of course, this was well before the film "Orgazmo" was released (sorry, I had to put that in). Anyway, Belgian law allows for the police to arrest someone for 48 hours and hold them just to check them out. The Mormons were fed a baguette and a litre of coffee every 4 hours. Something which doesn't happen in the USA. These poor buggers are suffering since they can't drink coffee and don't understand why the police can just pull them off the street for no reason.

But Mormonism is the most American of religions.

They see the United States as the promised land and the Declaration of Independence and Constitution as divinely inspired. Of course, that is where I find fault in their faith as a true tory, but that is a total digression.

And, of course, Mormons believe in Jesus Christ.

On the other hand, there are evangelicals out there who believe Mormonism is a cult. See http://www.washingtonmonthly.com/features/2005/0509.sullivan1.html. However, I am going to quote that article here:

The first time I ever heard about Mormons was in fifth grade, sitting in a basement classroom of my Baptist church, watching a filmstrip about cults. Our Sunday school class was covering a special month-long unit on false religions; in the mail-order curriculum, Mormonism came somewhere between devil worshippers and Jim Jones. Although most of the particulars are lost to me now, one of the images remains in my mind: a cartoon of human figures floating in outer space (an apparent reference to the Mormon doctrine of "eternal progression") that appeared on the screen next to our pull-down map of Israel. Even at age 10, the take-away message was clear. Mormons were not like us, they were not Christian.

Evangelical opinions about the LDS Church haven't changed so much since I watched that filmstrip more than 20 years ago. In 2004, Mormons were specifically excluded from participation in the National Day of Prayer organized by Shirley Dobson (wife of James Dobson, leader of the conservative Christian organization Focus on the Family) because their theology was found to be incompatible with Christian beliefs.

Mormons believe that they are the fully realized strain of Christianity--hence the "latter-day saints." They acknowledge extra-biblical works of scripture (such as the Book of Mormon and the Doctrine and Covenants), follow a series of prophets who claim to have received divine revelations, and teach that God inhabits an actual physical body. This is all blasphemy to evangelicals; they argue that "the Bible explicitly warns against adding to or detracting from its teaching" and refer to the revelations as "realistic deception[s] by the Devil himself."

Evangelical Christians consider Mormonism a threat in a way that Catholicism and even Judaism are not. The LDS Church, they charge, has perverted Christian teachings to create a false religion. As John L. Smith, a Southern Baptist who runs Utah Mission--an organization that tries to convert Mormons--told Christianity Today: "Mormonism is either totally true or totally false. If it's true, every other religion in America is false." To be tolerant of Mormonism is to put evangelical Christianity at risk. And to put a Mormon in the White House would be to place a stamp of approval on that faith.

Southern Baptists have been particularly vocal about labeling the LDS Church a "cult." In 1997, the denomination published a handbook and video, both with the title The Mormon Puzzle: Understanding and Witnessing to Latter-day Saints. More than 45,000 of these kits were distributed in the first year; the following year--in a throwing down of the proselytizing gauntlet--the Southern Baptist Convention held its annual meeting in Salt Lake City. Around the same time, a speaker at the denomination's summit on Mormonism declared that Utah was "a stronghold of Satan." When Richard Mouw, president of the evangelical Fuller Theological Seminary, tried to repair relations with the LDS community by apologizing on behalf of evangelicals during a speech in the Mormon Tabernacle last year, his conservative brethren lashed out. Mouw had no right, they declared in an open letter, to speak for them or apologize for denouncing Mormon "false prophecies and false teachings."

Now, the First Amendment was proposed as a bulwark against government interference with religion, not to establish Christianity, especially fundamentalist Christianity, as a religion. The US Constitution Article VI states that: "no religious test shall ever be required as a qualification to any office or public trust under the United States."

Why? Because the Puritans knew that government interference in religion was something to be avoided. Most of the faiths that came to the United States were dissenters in Europe and knew the problems associated with government sanctioned religion. Europe had nearly two centuries of religious war and a millennium of religious persecution to look back upon.

I was at a Jewish CLE class where the Rabbi said something along the lines of even though we may agree with the religious right, we know that we cannot support them. Because we are working toward something which may backfire upon us. So, we cannot impose our beliefs upon others even though we may not believe in abortion, birth control, etcetera.

Mormonism has a long history of persecution by "Christians" (see http://en.wikipedia.org/wiki/Anti-Mormonism), which they should not forget. I remember when I was young seeing a memorial to the Mormons who went to Beaver Island to escape persecution while camping in northern Michigan.

I ask my Mormon Brothers and Sisters to remember their past and the persecution by those who called themselves Christians to remember what our religious freedom means. Even if Mormons disagree with positions on abortions, birth control, prayer in school, and so forth, they must remember that others have once persecuted (and still do persecute) them for their beliefs.

We cannot have religious issues blocking our other freedoms and the freedoms of others. We cannot have religion being used as a method for blocking real social legislation by making religion a wedge issue. we must allow for freedom of conscience whether we agree with it or not.

otherwise, we may return to the religious wars our ancestors fled their homelands to escape.

Democratic?

Anyone familiar with my blog should notice the theme that the United States is far from being a democracy. The Constitution is written to thwart popular rule. Case in point is the electoral college. Dubious Bush did not win the 2000 election by a popular vote, he won it through the electoral college.

So, why do the politicians kiss the wrong asses?

Because there is money in the current system and it totally obfuscates the fact that there is really no popular representation of the people. And the government is in no way responsible to the people.

Yet, people wish to believe that an presidential election process which lasts four years is responsible to the people. What has me going on this rant is the comment from someone in Virginia on NPR's Morning Edition saying that he plans on voting for Mitt Romney. Now as someone who voted for Bill Bradley in the 2000 PA primary and Kucinich in the 2004 primary that this is a great thought, but our friend's protest vote is the rough equivalent of abstaining. In fact, at this point, the candidates are pretty much decided. Hilary Obama/Barack Clinton for the Demicans and McCain for the Republicrats.

But, no matter who wins, it will be business as usual with the sideshow issues of abortion, gun control, and, the new one, Iraq/War on Terror. The whole time, the leaders are causing the united States to fall further and further behind the world.

Matt Miller wrote an article on why we need federal standards in Education in the atlantic and was on Today's "Radio Times with Marty Moss-Coane". See Also http://www.theatlantic.com/doc/200801/miller-education.

The problem is that the US is behind in health care, transportation, and education. Miller pointed out that third world countries are already passing us by. He predicts there will be another "Sputnik moment" during the Beijing Olympics when people see how far ahead they are as far as infrastructure.

Of course, the leaders don't want to take any leadership position and they are under no obligation to do so. This is because of the pretense of a democratic process, there is no real input from the people. The process takes so long that qualified candidates pull out.

The real winners are the party leaders and the lampreys who feed off the process. This won't change as long as there is money to be made.

The Language of Liberty

Dr. Samuel Johnson Pointed out "that we hear the loudest yelps for liberty among the drivers of negroes" at the time of the revolution. Thomas Jefferson stated that "all men were created equal", yet he had 187 slaves. Patrick Henry screamed "give me liberty or give me death", yet was also a slave owner. Was Mr. Henry as willing to give his slaves liberty?

Add in George Washington and most of the Southern rebels.

Another cry was "no taxation without representation" which came from Massachusetts. Rather humourous given that the colonies were taxed at a much lower rate than those back in Mother England. Even funnier that the places this cry was heard have high taxes post rebellion (mostly due to the debts incurred from said rebellion). They don't call it Taxachusetts for nothing.

Self-representation and we tax you like the Beatles' song Taxman ("one for you, nineteen for me
'Cause I'm the taxman,...Should five per cent appear too small, Be thankful I don't take it all"). Of course, quite a bit of this money goes toward a standing army, from which the Second amendment is supposed to protect me. We should have a citizens' militia. Of course, it is better to pay high taxes than have to give up time for militia duties.

The "founding fathers" were also not fans of Democracy. Typical contemporary writings describe it as mob rule. The word had a similar connotation to how we use anarchy today. Our friends who were screaming for liberty while screwing their slaves (Old Tom and Sally Hemmings) were all for representation by property owning white males and sod the masses. Fortunately, property was so cheap in North America that most white males could fit into this category.

I draw your attention to the Impeachment of Samuel Chase for criticising voting reforms as "mobocracy". You might also do well to check out my previous post on this subject.

The basic gist of this is that the common man would be considered the mob, or rabble. No where in the Constitution is the word "democracy" used. This is a republic, a vastly different system. The reason Dubious Bush became president had nothing to do with popular vote, but the electoral college. Check out that institution.

Republics expect duties from their citizens which modern libertarians seem to miss.

So, don't let the language of liberty obfuscate the issue. As my dad loved to point out the Soviet Constitution sounded very egalitarian as well.

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.

Are logical fallacies a good reason to overturn precedent?

Yet another mass shooting has occurred in Missouri. This happened in a city council meeting where there were armed policemen, two of whom were shot before the gunman was killed. Virginia Tech happened in a state with liberal gun laws as well, including shall issue concealed carry.

Now, we have heard that concealed carry would prevent this and I have pointed out that shootings still happen. The Columbine shooters had a shootout with the school cop.

Part of the reason we have this mess is the fake statistics of John Lott and Gary Kleck. Both of which have been discredited, yet the gun lobby trots them out as truth. They even buttress their arguments with statistics which disprove those statistics (i.e., Cook and Ludwig).

I am hearing that the reason that the Supreme Court should find an individual right is that "it is popularly believed this right exists". Now, you can read my posts on argumentum ad populum and that it is a logical fallacy to base the truth of any proposition on the belief that it is popularly held true.

Add in that the "individual right" camp usually misquotes and takes quotes out of context. The arguments also use dicta rather than holdings (e.g. Dred Scot). In particular, they use the dicta in US v. Miller rather than the holding because it goes against their arguments:

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. U.S. v. Miller, 307 U.S. 174 (1939)


Nowhere is the term "self-defence" mentioned in the Second Amendment, or the debates surrounding the ratification of the Constitution. Self-defence is mentioned in similar State guarantees.

It is even sillier to posit that a document which is to keep domestic tranquility providing an institution which is to "execute the laws of the union and suppress insurrections" (the militia) and lists the only crime as being waging war against the United States (article III, Section iii) as allowing for a right to insurrection.

The real Second Amendment issue is not gun laws in Washington, DC, but the fact that National Guardsmen are being pressed into service in Iraq. Or as Justice Douglas said in Adams v. Williams, 407 U.S 143, 150 -51 (1972), which is a supreme court Second Amendment case which misses their list because it shows the contrary point of view:

The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by 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."
There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.
The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." Id., at 178. The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia."

So, in a nutshell, there are more reasons that the Supreme Court should hold with the collective right interpretation, which is what the courts have been following for the over 60 years and similar amount of legal opinions.

There is no policy reason to find that a right which is to prevent standing armies should be interpreted as a licence for private ownership of firearms.

Gun responsibilities

Maybe people should start pointing out that rights come with incumbent responsibilities: the right to own a firearm in particular. This is a device which can lead to serious bodily injury or death if misused. And, firearms are misused when they fall into the wrong hands.

I guess I am upset at the crowd who heckled the people protesting at the Virginia Capitol seen in this video: http://www.youtube.com/watch?v=SL7g8hbzQzw. even more so the Cops for failing to nail the RKBA crowd for brandishing. Let's face it, the RKBA crowd were carrying weapons to intimidate the protesters. When they couldn't do that, they had to taunt the protesters. Showing how weak the RKBA crowd really is.

It would have been funny as hell if the person with the Colt in his waist band had it pulled out and used against him. The idiot probably wouldn't have known what hit him until his brains went spattering out all over the crowd.

I would have loved to have handed out targets while wearing a SWAT uniform to them and said "put this on, because you are only asking for me to shoot you in an emergency situation."

Who do the RKBA crowd think they are fooling with packing heat will stop a school massacre? Don't they notice how the mass shootings happen in the places where gun laws are lax? Anyway, a police sniper who sees some idiot toting a handgun will give the idiot a .308 Darwin award. too bad the gun toter doesn't have any brains to splatter.

Besides handguns are crap for protection. Ever notice that people who professionally use firearms (e.g., the military) use LONG GUNS?. Yeah, that's 'cause a handgun doesn't have any real effective range to it. My L96A1 has the stupid civilian outgunned every time and I am not close enough to him to ask questions.

I see a civilian with a gun in a situation where he shouldn't be and he is a target.

Bye-Bye, Dumbo!

Now, if the NRA had been doing what they should have been doing and protecting sportsman's interests, rather than criminals and terrorists, we might have some sane gun laws. We might also have some places where we can shoot since development is quickly making open spaces a thing of the past.

So, as the NRA refuses to act responsibly as the body count piles up and the politicians can't say what the Second Amendment means, we see the havoc build.

Fortunately, the RKBA crowd is just a loud and weak minority. They really don't have the power attributed to them, but unfortunately the people who pretend to be leaders in this country don't have the guts to stand up to them.

The Solictor General's new clothes

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

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

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

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

He was only exercising his Second Amendment rights there.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

History is written by the victors

Ever wonder what life would be like if the British had won the war for American Independence or the French the French and Indian Wars? I do. Not sure which would be a better scenario. The first, the US would be an intelligent Canada (no sales tax on stamps, gun control, "socialised" medicine, land planning etc.) and the Second, kind of a larger Belgium with French, English, German, and Dutch being the official languages.

Anyway, I found this badge in my travels:


Sure, it is for the Island of Jersey Militia, but think with all these RKBA people talking about being able to rebel against a tyrannical government. Now, what is to prevent people from deciding that the US war for Independence was illegal and that the current government neglects the welfare of its citizens? I mean there are loads of us who have loyalist ancestors who decided it was better to keep their traps shut than say the rebels were wrong. 50,000 Loyalists left the states for Canada. And, Benedict Arnold, the true patriot, ended up living his days in London (not a bad option). Additionally, as I continuously point out, the REAL reason for the rebellion was an out of control military.

Now, Isn't the current military establishment pretty out of control? I mean several trillion for a couple of wars that really don't make sense as far as security goes. Give me a break, Iraq is a failure as is Afghanistan.

So, watch out for the Royal New Jersey Militia!

Exporting Jobs

As a dual citizen, I am a lot upset with how this country cavalierly ships out its jobs to the lowest bidder. I find that I am competing against real foreigners (v. me who is technically citizen due to birth in the motor city). It is very easy for companies to get H1 visas, or just ship off the jobs. And it is my attitude toward this type of behaviour which puts me at odds with both political parties: especially the republicans.

H1 visas are what a company gets if there is no local talent who can do the job. This is why there are loads of Indians in the IT industry. On the other hand, I am sure there are loads of people out there who could be trained to do the job, if the companies were forced to do so. Or, in my case, the companies had to prove there was no local talent.

In 1992, I was living in Brussels and working for a law firm there. My grandfather had a stroke in Autumn 1991. In a way, I felt I needed to be with my mum in the States. Along came a job ad in the ABA Journal for someone with a British Education, trained in European Community law, with experience in that field who could be admitted to the Illinois bar. Five people who knew me contacted me to tell me about this ad. I was to submit my resume to the Illinois Department of Labour.

Anyway, I ended up returning to the States in the hope that I would hear from these people for a job interview (among other reasons). That never happened. Well, not exactly. About a year later, I received an offer from a large law firm to come to Chicago to interview. Prior to that interview, I rode into town with an immigration attorney who told me about Job Cert ads. They are the ads which are supposed to prove there is no local talent for a job. That was probably what the ABA Journal ad was. So, during the interview, I mentioned this ad and the interviewer chuckled and said, "Oh, that was you. we pulled the ad and rewrote it to get our candidate."

Now, in any other country, the firm would have had to at least interview me before hiring a "foreigner". Not so in the US. The firm is allowed to pull the ad and rewrite it to make it more specific so that it can hire its own candidate.

I am one case where this has happened. How many others are there out there? How many US citizens are being denied jobs for illegal aliens (the minimum wage and construction jobs) or visas are being granted just because they can pay a foreigner less money?

Another thing which really has me pissed off are the foreign call centres. IS business really saving money if somebody in Mumbai or Bangalore is taking the phone call, yet they don't really understand the problem? Case in point, I had two phone lines that I cut down to one in September. My DSL should have been moved to the one existing line. Somehow, my phone bill didn't go down. I kept calling with no responsible human being. First line was the voice mail hell, which never got me to a human being. The Second line was the off-shore phone bank.

I am talking to Mohinder, Gupti, Shakti, et al. who don't grasp the concept that someone who has been a customer for 5 years isn't a "new" customer. Why the new customer fee? Requests for a supervisor are met with a long wait on hold. So, I am getting more and more frustrated. I file complaints with the Pennsylvania Public Utility Commission. Even then, I don't really get any satisfaction from my phone company. It isn't until my internet is cut off that I realise the extent of my phone company's screw up. Of course, it takes three hours to straighten this out, which probably wouldn't have happened if i hadn't complained to the PUC.

The easy solution, which should have happened was that there was a move order for my DSL from the line that was discontinued to the main phone line. No, what had happened was that they set up a new DSL account and kept the old account alive on a non-existant phone line! I am not sure what language they speak in Mumbai or Bangalore since there are 22 different official languages in India (I think Hindi), but they couldn't grasp English. None of these people could see the problem. In fact, the situation became more and more messed up until I had to speak with people in the US.

How much money is business wasting by having people who don't really speak English field customer service phone calls? Even more salient, how pissed off are the customers to have their time wasted? I mean I would switch my business in a heartbeat if there was an alternative. But there isn't.

The Republicans love to talk about market forces, but that is nice talk. Especially if people are losing their jobs. Additionally, is business really doing any better by going for the cheapest labour it can find if it ends up costing more in the long run in repairs to its eff ups? Wouldn't we be better off if there were more Americans working than looking afield for workers, especially in a recession?

Quite frankly, other countries aren't going to hire an American if they have unemployed people with qualifications. Conversely America shouldn't be hiring people from abroad if there are Americans without jobs.

British Army recruiting material misleading youths.

A week ago there was an article in The Independent and a few other British Papers about how the British Army glamourises war in its recruiting materials. The article states that "The advertising campaigns used by the Ministry of Defence "glamorise warfare, omit vital information and fail to point out the risks and responsibilities associated with a forces career", says the study." That's sort of amusing to me since I remember ads that were pretty realistic as to what I would end up doing once I became commissioned. Although, I do have to admit that this clip from the Beatles' movie help was an influence as well.



It should not come as a surprise to anyone who has watched TV or gone to the movies that the military aids in production, especially if it can be shown in a good light. I wonder how much help the TV program "Soldier, Soldier" had. And I know that the British Army helped in the recent remake (?) of Red Cap with Tamzin Outhwaite. Ms. Outhwaite actually received training at The British Army's Reserve Training and Mobilisation Centre in Chilwell, Nottingham.

On the other hand, the military is supposed to be targeting children as young as seven. I would like to point out as well that the UK is the only EU state to recruit people aged 16. Well, I guess that's fair since 16 year olds can have sex and legally drink in the UK. I mean you can serve in the military and vote in the States, but can't drink. How fair is that?

Needless to say, I am kind of amused by this news, especially the quote from one Article that the hardest thing one recruit had to do was "learn how to ride a horse". Must have been joining the horse guards (or a cavalry unit). In case you didn't know there are two segments of the British Army that requires and additional 6 months of training before a recruit is selected: the paras and the guards. Seriously, the guards have to learn how to polish all that metalwork and the other ceremonial trappings.

Oh, well, I always said the military was like the Boy Scouts except they give you guns. Actually that statement really is not too far off since Baden-Powell designed scouting to indoctrinate young men into the military life style.

So, I guess I shouldn't be too surprised that the military is glamourised. Especially now that the Iraq war is as unpopular as it is and it is hard for any military to find people crazy enough to want to be soldiers.

Time shifting the News

I am thoroughly sick of hearing about the US election, especially since I think the candidates will be Huckaby v either Obama or Clinton. I do have to admit to enjoying Bill, but he had humour value. In some ways, Wes Clark reminds me of Bill Clinton, except he can keep his dick in his pants.

Anyway, I enjoy the internet, especially now that most of the short wave broadcasts have been abandoned by reputable broadcasting networks. The internet allows one to connect to other viewpoints. Although, sometimes it can be like wading through a sewer emptying out the Augean Stables (e.g., researching the Second Amendment).

NPR has become inundated with repetitive news (Iraq and the Elections). So, I am listening to the BBC news and Radio Nederland for non-US news. It's nice to get a variety of stories. For example, this story about an 88 year old pensioner who is doing ballet! It was fun listening to this man talk about his wanting to do ballet.

In the old days, NPR had a lot more variety, but I am not sure why they have cut down on the variety of their stories. I mean, it really was all things considered. Now its seems to be only Elections and Iraq considered. And they are considered until you are sick of it all.

So, I am finding that I am listening less and less to NPR and more to internet radio.

Maybe, NPR will return to its roots and start providing more diverse coverage.

Perpetual elections

It seems as if the US presidential election has been going on since the end of the last election in 2004. Barely has it officially started and it has been going on far too long.

This whole thing reminds me of the African Politician, I think it was Jomo Kenyatta, talking about the one party versus multiple party systems who said soemthing along the lines of: "Does having one party make us less of a democracy than a two party system? Do two parties make you twice the democracy we are?"

That seems particularly appropriate in regard to the US elections. The whole thing goes on far too long, has far too few real leaders, and isn't really "democratic" anyway. The last one must seem pretty amusing given my comments on democracy. On the other hand, if a nation is going to go around boasting about how it is run by the people, the people should be allowed to properly participate. Instead, quite a few people are disenfranchised.

How? well, the whole process is really run by the parties, which are really Tweedle Dumb and Tweedle Dumber. I see no real difference between the parties in practise with the exception of the fact that the "Republicans" tend to favour plutocracy over monarchy. Additionally, they come up with the most divisive and useless issues: "Gun Rights", "Pro-life" (yet support capital punishment), and religion. This pushes me closer to being a democrat than a republican, even though in English terms I come closer to being a Liberal-Democrat or Conservative!

The funny thing is that Richard Nixon would seem pretty liberal as well by today's standards for his promotion of such things as the Clean Air and Water Acts!

I would vote for Oliver Cromwell, who was a republican in the sense that the current republican party seems to be, if I wanted a theocracy.

Sorry for the digression, but in quite a few states independents are barred from voting in the primary election. One must declare party affiliation to vote here in Pennsylvania. Sort of like in Northern Ireland: Are you a republican independent or democratic independent? The whole primary system isn't really run to be fair for all the citizens, it is run to be fair to the parties.

In the 2004 election, I supported General Wes Clark. Yet due to the primary system, he was no longer a candidate when the Pennsylvania primary was run. In fact, it seemed as if the election had pretty much been decided for John Kerry. Now, I am hearing that the Democrats are refusing to seat the Michigan delegation since the State party decided to push its primary forward. Very democratic of them.

As I like to point out, one of the reasons for the American revolution was this desire to be run locally, not by a faceless and distant government. Yet, this is what really ends up happening in US politics. Originally, the candidates were chosen in smoke filled rooms, now we have this pretense that there is democratic input. On the other hand, it is the parties which prolong the primary process until we are numb that really controls the choice of candidates.

So, the people with the largest war chests actually go on to the finish and the voters are screwed as far as choices go. In fact, I hardly hear any substantive discussion of the issues in lieu of sound bites. The real winners are the people behind the scenes who collect all the money which is spent on this process. Indeed fortunes are made on this process; so why make it shorter?

In reality, it is the special interests who really run government in the United States, not the people.

The final insult is the electoral college, which can take a popularly elected Person (e.g., Al Gore) and give the crown to someone who didn't win, and in Gore's Opponent's case, shouldn't have won. So, it is very amusing to hear George Bush rant on about democracy when he was never really democratically elected!

So, to get back to the Kenyatta quote, having one party or two parties doesn't make a government "democratic" if the underlying system isn't really democratic. In fact, it is a sham to claim to be democratic if the real result is to thwart the will of the people. Ultimately, this is not beneficial in the long run.

People are denied leadership by this process. The US stagnates with a lack of serious gun regulation and health care, the economy run for the benefit of the very rich, not for the people. Or as Dubious (Bush) said, "This is an impressive crowd of the haves and have mores. Some people call you the elite, I call you my base."

This is it!

Well, I predict that there are at least six votes which will uphold Miller

The four dissenters from Printz (Justices Stevens, Souter, Ginsburg, and Breyer). Justices Roberts, Scalia, Kennedy and Alito will affirm individual protection but only in the context of the maintenance of a militia or other such public force. See: http://supreme.justia.com/constitution/amendment-02/index.html

I think that Justice Thomas is the only justice who buys the "new scholarship", but he has a Segal-Cover score of 0.415 for being qualified for the job (0 being unqualified and 1 being most qualified).

I just found out that one of Justice Anthony Kennedy's law clerks, Orrin Kerr, recently predicted this precise scenario. After declaring that there is an individual right under the Second Amendment, "Kennedy will endorse a relatively deferential standard of review that will end up allowing a great deal of gun regulation," wrote Kerr.

Sounds like the "individual protection but only in the context of the maintenance of a militia or other such public force" language to me.

I have found there are a lot of people out there who spout collective right language while saying that the Second Amendment protects an "individual right". It's one of those mantras out there to say "individual right" in a way that seem to try and placate the masses. Never mind that this is not the "individual right" believed to exist by the masses.

This is because no one out there is willing to say Argumentum ad populum/Argumentum ad numerum is fallacious thinking.

Yet More DC v. Heller

OK, I have an interest in this given a strong background in DC gun laws.

Although, I am a lot less bothered that the SCOTUS will listen to the masses and will not follow it's precedent in US v. Miller, 307 U.S. 174 (1939).

First thing is Miller, supra, is out there. While both sides argue about the applicability of this. I would say it is pretty well accepted in legal circles that the holding is:

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, 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 interpeted 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.

The Appellant (Heller) would like us to believe that the declaration is a superfluity. Additionally, he would appreciate it if the Miller decision were interpreted as looking to the nature of the firearm, when the court said "Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." Meaning that the court doesn't need to take this into account as the right is to ensure the effectiveness of the militia, which was set up under Article I, Section 8.

The gun is irrelevant! Trying to compare the Second Amendment to the other Amendments is silly. The Second Amendment is to ensure the Article I, Section 8 Militia is not disarmed.

I like to quote Patrick Henry:

9.1 Let me here call your attention to that part which gives the Congress power "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States—reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress."

9.2 By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither—this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory. Our situation will be deplorable indeed: nor can we ever expect to get this government amended, since I have already shown that a very small minority may prevent it, and that small minority interested in the continuance of the oppression. Patrick Henry, Against the Federal Constitution, June 5, 1788

My guess is that there are at least five votes (Justices Stevens, Souter, Ginsburg, and Breyer, with either Kennedy or Alito possibly both) for the collective right. I am using the dissent in Printz v. United States), 521 U.S. 898 (1997), to predict the four votes to keep Miller. Alito stays consistent with his dissent in Rybar and holds the Collective right.

US v. Rybar, 103 F.3d 273, 286 (3d Cir.1996), recapped for those who missed it followed the collective right interpretation to the Second Amendment. Of course, There was a dissent in Rybar.

The dissenting judge's name: Samuel Alito.

Yes, this is the case which earned Alito the nickname "machinegun Sammy". Funny thing, Alito was silent about the collective right issue in his dissent and only used the US v. Lopez, 514 U.S. 549 (1995) Commerce clause issue.

What if Alito holds the collective rights interpretation of the Second Amendment? What if Alito beings along Roberts and Scalia? Not so crazy an idea. Scalia is a strong believer in stare decisis and upholding Heller would screw up a lot of legal opinions out there.

Scalia, while calling himself a textualist, defers to legislators and also doesn't like stirring up accepted legal doctrines. DC's gun laws were enacted under the home rule statute in 1976: Legally legislated. Additionally, there are loads of decisions out there interpreting the Second Amendment as enabling the militia, that is now the National Guard.

Sure, the masses believe the Second Amendment can be divorced from the "well-regulated militia" language, giving the "people" "a right to keep and bear arms", but that type of logical thinking is fallacious. It's called Argumentum ad populum (argument or appeal to the public). This is the fallacy of trying to prove something by showing that the public agrees with you. Also known as Argumentum ad numerum (argument or appeal to numbers). This fallacy is the attempt to prove something by showing how many people think that it's true. But no matter how many people believe something, that doesn't necessarily make it true or right. Example: "At least 70% of all Americans support restrictions on access to abortions."

Well, maybe 70% of Americans are wrong!

Live with it!

More District of Columbia v. Heller, 07-290.

I have to admit that all this talk about rights is amusing to me.

It seems that it has gotten lost that the District of Columbia's gun laws were locally enacted. Not to mention that most law abiding DC citizens support it.

On the other hand, it bothers the heck out of a lot of people who don't live in Washington, DC.

Case in point, Robert A. Levy, a senior fellow at Washington’s libertarian Cato Institute, plaintiff's lawyer, and pretty much the driving force behind all this.

Though Levy is a native of the dis­trict, he moved to Maryland 25 years ago. Today he splits his time between a gated community in Naples, Fla., and a home in Asheville, N.C. The investment analyst-turned-lawyer doesn’t own a gun and doesn’t want one. For Levy, the case really isn’t about guns.

Really? I have to admit curiosity as to why he is raising this issue then??? Is he out to get a definitive ruling on the law?

This may change the tack of this post, but the NRA (another non-DC resident) is worried about this and wants to bypass the court system. It wants the D.C. Personal Protection Act passed by the Legislature (yet more non-DC residents who don't represent the Citizens of DC). This legislation that would repeal the ban and moot out the Second Amendment issue.

Now, I have to admit that my opinion is that the correct interpretation of the Second Amendment is that it refers to the arming language in Article I, Section 8 and only means that the militia will never be disarmed: not to any personal right to gun ownership.

Additionally, I find Justice Robert's statement at his confirmation hearing to be ambiguous. I don't trust Justice Alito either after reading the U.S. v. Rybar(103 F.3d 273 (3d Cir. 1996)) decision. I think the court will only clarify US v Miller, 307 U.S. 174 (1939), or not bother to hear the case.

Either way, the Miller Opinion remains legal precedent. This is why the NRA DOESN'T want to see Heller go to court.

But that is neither here nor there in relation to my point.

My point is that the District's gun law was locally enacted and locally supported. The people who are trying to get rid of it aren't citizens, weren't elected by the people of DC and definitely don't represent the people of DC.

It was desire to self-govern which was a driving force behind the revolution, not taxes, guns, free speech, etcetera.

Especially not guns.

From what I know of the founding fathers. I believe they would support the District of Columbia from the outside meddling in its affairs.

But as the DC licence plates say these days:

TAXATION WITHOUT REPRESENTATION

Founding fathers on revolution against the Constitutionally created government.

I see loads of rubbish about how the Second Amendment allegedly means that "the people" have a right to rebel against the Constitutionally created government.

Usually this neglects Article 3, Section 3: Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.

Quick question how does the Second Amendment negate Article 3, Section 3 and allow for citizens to wage war against the US government?

Of course, people who buy into the RKBA myth usually neglect logic such as that.

Anyway, here are some quotes from the founders about rebelling against an elected government.

"Rebellion against a king may be pardoned or lightly punished, but the man who dares to rebel against the laws of a republic ought to suffer death." Samuel Adams about Shay's Rebellion

"I would infinitely prefer a limited monarchy, for I would sooner be the subject of the caprice of one man than the ignorance of the multitude." Noah Webster

"I am mortified beyond expression when I view the clouds that have spread over the brightest morn that ever dawned in any country... What a triumph for the advocates of despotism, to find that we are incapable of governing ourselves and that systems founded on the basis of equal liberty are merely ideal and fallacious." General George Washington about Shay's Rebellion.

James Madison once described democracy as the “most vile form of government”. In Federalist Paper No. 10, he had the following to say about democracy:

“A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”

Alexander Hamilton, in a June 1788 speech urging his fellow New Yorkers to ratify the Constitution: “It has been observed that a pure democracy if it were practicable would be the most perfect government. Experience has proved that no position is more false than this. The ancient democracies in which the people themselves deliberated never possessed one good feature of government. Their very character was tyranny; their figure deformity.”

Samuel Chase, a signer of the declaration of independence and U.S. Supreme Court Justice, delivered a charge to a Baltimore grand jury in which he blasted Congress and the Jefferson administration for repealing the Judiciary Act of 1801 which unseated federal circuit court judges on 2 May 1803. He also lashed out at the Maryland legislature for eliminating property qualifications for the franchise and for interfering with the operation of Maryland's courts. Chase railed that America was risking a descent into "mobocracy," This led to his impeachment

Of course, you probably believe that the US is a democracy if you believe the Second Amendment allows you the right to wage war upon the US government.