One lawyers opinion.

Discussion in 'Hunters Rights Forum' started by The Other David, May 23, 2003.

  1. Penns-Woods

    Penns-Woods Senior Refuge Member

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    Actually, my formal training is in Constitutional law and history. Four years of post-graduate study on the topic to be exact. Now what would your qualifications be to pontificate on constitutional issues?

    Please point out the specific errors or over-broad interpretations I used vis-a-vis this case? Again, some specific facts would be nice, rather than broad insults.

    The Court SPECIFICALLY held that shotguns (with less than 18 inch barrels) could be banned because they serve no military purpose (despite their common use in WWI). The Court SPECIFICALLY held that the militia clause of the Second requires that for arms to be protected they need to serve a military purpose. As such, Military weapons are de facto protected by the Second, and all others are not. That leaves your duck hunting shotgun open to banning. And "assault weapons" legally protected.

    Of course, it's probably even money that the SCOTUS will decide another Second Amendment case soon. With the Emerson and Silviera Circuit Court opinions in direct conflict, the Court will probably grant cert and hear the latter case. We shall see.
     
  2. deadgreenhead

    deadgreenhead Senior Refuge Member

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    David, I know a little about constitutional law, but I can't say I'm any constitutional scholar, either. From what I've seen, you do just fine. We've already talked about some of this stuff in this thread here. There is also a link provided inside that thread to another thread in which I have discussed some of this stuff, too. Of course, that's not for either you or woodie, who have already read most of it (although I have addressed some of the points raised by your links therein)--it's more for the unnamed leg-humping schoolboy bit*hes barging in to this discussion late (as per usual) with the small hope they will try to avoid any further displays of dyspepsia. Please note, if you are not that one person, the above doesn't apply to you. Upp, looks like I'm too late!

    The sources are fine, David, though the organization of the material is obviously politically motivated. Nothing wrong with that. I'll try to put together a post summarizing my thoughts to your question here a little later today, and we'll take it from there. That Presser case looks interesting...there's something wrong with it; I'll try and figure out what (or if there even is) here in a bit. None of it's going to be anything terribly brilliant or terribly long, either...it's just that right now, I got some place to be...............
     
  3. The Other David

    The Other David Elite Refuge Member

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    dgh,

    I also believe there were some problems with the Miller case, as well. Apparently the scoundrels disappeared before the case went to SCOTUS. When the hearing came up, defense counsel failed to show up at all. That left the government lawyer free to present his case without fear of challenge. I doubt that would fly these days.

    Woodie, I think, pointed out that the SCOTUS failed to consider that trenchguns were a standard issue weapon in WWI. Miller has stink all over it.

    David
     
  4. deadgreenhead

    deadgreenhead Senior Refuge Member

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    I agree wholeheartedly. There's lots of problems with Miller. In a way, it creates more problems than it solves. A large one, IMO, is that shotguns have been used in every war since the the gun was invented. Silly. But now I really am late!
     
  5. The Other David

    The Other David Elite Refuge Member

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    FYI for everyone,

    Penns-Woods is an old and respected contributor to this forum. I respect his opinion even though I am not familiar with his formal training.

    Everyone please stop with the ad hominem insults.

    We come in here with a broad spectrum of backgrounds, training, experience, and political perspectives.

    Can't we all just get along?;)

    David
     
  6. deadgreenhead

    deadgreenhead Senior Refuge Member

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    Sure, David, in the ideal world. The guy has been following me around for weeks nitpicking my every word. I have a box full of PMs from other 'fugers asking me what his problem is with me. If I post that something is red, he posts and says it's blue. I haven't a clue what his problem is with me. I don't really care, either. I have managed to get along with just about everybody on here, despite myself, even if it takes a while and even in the face of rather large disagreements. Except him. I've tried ignoring him. I've tried avoiding him. I've tried extending olive branches. I've tried humor. And I've tried confrontation. He simply won't take a hint that there is another way. But if you think you can do something about it, then by all means, *please* be my guest--I'd love it all to stop. I'm willing to bite my lip and give it this one last shot, per your request. But should this fail, I guess I'll just have to deal with gettin' bounced outta' your forum.

    And thank you for taking an interest in this situation. It's long overdue.

    PW, you have asked me on a number of occasions what I do and what are my academic credentials. I always think it so funny when you ask because I really don't think it matters at all to the ideas in these threads. I also think you know, (as everyone else seems to know) but for some weird reason, you just want to hear me say it. I am a lawyer. I have a poly-sci undergrad degree. I really don't think this matters.

    To answer your questions, David, here's a start: We know that the 2A is ambiguous. We know that it has never been applied to the states via the 14th. We know that most of the states have individual consitutional provisions giving you a state right to own and bear arms. We also know that the states are free to regulate any and all aspects of guns, including gun use and gun ownership, as long as any given state law doesn't conflict with that state's own consitution. Recall that the federal Consitution sets a floor, or a minimum, in terms of your rights, below which the states may not go. By the same token, the states are free to give each of thier citizens greater rights than those granted by the federal Constitution.

    Our federal rights, as a practical matter, and thus, in reality, are determined by the Supreme Court. Fact is, we don't have a right until the SC says we do. Not the Circuit Courts of Appeals, not the Congress, not any person or persons from the executive branch; it's the Supreme Court. They decide when they want to do it (if at all), and they decide what we get when they finally do.

    Regarding the 2A, so far, with the lone exception of Miller and a few snippets often used to justify something more from other cases, the SC has so far refused to speak. And unless and until they do, we got nada from the 2A. It really is that simple. That's what I mean when I say it's superfluous. Now, we can sit around and talk about how wrong that is, that it's not fair that we don't get some right unless the SC gives it to us and about a million other things about Consitutional procedure until we are blue in the face. But oversimplified, that's the way it is, ancient history, like it or not.

    Miller. This case stands for one proposition and one proposition only. That is, the District Court for the Western District of Arkansas got it wrong in holding the federal government did not have the power to regulate our use and/or ownership of sawed-off shotguns pursuant to Section 11 of the National Firearms Act (NFA) because, in its view, Section 11 violated the Second Amendment. That's it. Nothing more. They did not reach the issue of machine guns or assualt rifles or anything else. It does not stand for the proposition that we have a right to own and use guns as long as they are also used for a military purpose. And it does not stand for the proposition that military weapons are in fact protected by the 2A, where other weapons are not. In fact, drawing conclusions from the Court's reasoning is a double edged sword, due to the apparent technological and historical limitations the Court appears to place on the word "militia." So, we read more into the decision at our own peril. And any language in that opinion sought to justify anything beyond the simple fact that sawed-off shotguns may be regulated by the federal government pursuant to the NFA, contrary to the lower court's holding, must be viewed as mere dicta (that's not all the way true, but for purposes of making this point, it's true enough). Also true, the decision is murky, the reasoning is weak and as mentioned, that same reasoning leads us down rabbit trails if we take any of it further than the Court did. But none of this obviates the simple fact that there is only one holding in the case.

    The bottom line is, Miller presents just as many problems for the pro gun lobby as it solves; and further, sheds very little light on what we have in terms of a right to bear arms, if any at all. We won't know more until the Court turns the light back on and says more, should they choose to do so.

    I will get to the other cases on the NRA sight here after a bit. Some are interesting and some not so interesting. I got no business trying to tackle any of this stuff today.................;)
     
  7. WoodieSC

    WoodieSC North/South Carolina Flyway Forum Moderator Flyway Manager

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    Granted, I'm not a lawyer, but everything I ever learned throughout my schooling, and since then, is that SCOTUS does not "determine" what rights we do and don't have until or unless there is contentious debate regarding the laws in place, or lack thereof. They do not sit around drinking coffee deciding what rights they'll decide to give us in the future. They are the Judicial branch of government, not the legislative branch as you know, and they do not MAKE law - or GIVE us our rights. They only interpret which side of an argument they side with after it is brought before them by two parties. If an argument is not brought before them, or they choose not to accept a case, the next lowest decision holds. That decision may or may not be an official legal decision from a court, or state or local government unless it's been brought up via that realm, but rather an individual who decides to do something where there is no law that stops him/her from doing so.

    Are you actually trying to say that nobody can do anything, or claim a "right" to do something unless or until SCOTUS decides to "give" us that right? I say, "bull". SCOTUS may be the arbitrator in legal proceedings, but they are not the gods of the land by which we must get permission on everything we do before we do it.
     
  8. deadgreenhead

    deadgreenhead Senior Refuge Member

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    Ahhh, the origin of rights.....well, it all depends. Remember, I said "as a practical matter".....

    There is much to discuss on this subject. But I'm afraid it will have to wait as I am currently drowning in problems not of my own making!
     
  9. Runnin' 87

    Runnin' 87 Elite Refuge Member

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    BWHAHAHAHAHA Lawyers don't do that. :rolleyes: :l I love it.

    Taking the side bar here.

    Actually WoodieSC. The legislative branch, by passing laws, limits your rights. The Court ensures and is securer of your rights. Only under certain circumstances may the state (police/government) deny you a right. Through decisions a court can also, "legislate from the bench", and be untouchable and irrevocable except by amendment to the constitution.

    example

    A US Appeals Court Judge from Tyler had the Texas Department of Corrections filing prisoners rights and reforms for years through his court. William Wayne Justice through Ruiz set policy for TDC from his bench. He acted as the ensurer of the rights of the prisoners by controlling TDC. Like it or not. Ruiz was finally settled in the past two or three years. W. W. Justice, through Ruiz ended the old building tender system of prisoners gaurding prisoners and went as far as required certain cubic footages of air flow through prison cells, for the comfort of the prisoners. All construction had to meet requirments from his bench.

    Ya'll keep it up. Me is just a simple homicide detective. The more you lawyers argue, the more I get to see how ya'll think, the better for me to "put the question back in your lap later."

    WoodieSC, you got a better grasp on things than any other "layman" I have seen around here. What you or I don't have is the hours of study these guys have put in. Believe me, that got there arses handed to them many times in law school, by a-hole proffs. That is just law school, and that is how it is taught. If they puth forth as much effort hunting ducks as they did arguing, they might actually shoot a bird now and then,

    Kinda think of the law as an onion. There is the surface, or plain language that is put before you. Then you begin into the layers or meanings of those words on the face. Then it goes deeper into the interpretaions of the variouse people, then coflicts with other interpretaions and realted laws, history, philosphies of the variouse interpretors.

    Aristotle said that law is reason free from passion. It is obviose that you are passionate about the topic, a good thing, but don't let the passion cloud sound reason.

    Also, don't let these guys' rhetoric fool you. They are struggling too. They are schooled in persuasive arguments. Ethos, Pathos, and Logos. Through choice of words they try to seperate you from "their class", then put forth such a display of personal character that will make his speach sound credible, stir your emotions, and provided an apparent truth through his persuasive arguments. Old school we just called it baffling them with bull**** and talking over heads. The best lawyers I have ever seen get in the jury box, not over it.

    Law can be special, or regulatory and general, those unwritten principles which are supposed to be acknowledged everywhere.

    Don' t let DGH jump around on you and compair apples to oranges.
     
  10. WoodieSC

    WoodieSC North/South Carolina Flyway Forum Moderator Flyway Manager

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    wkl,

    Good post. In fact, after I had posted my last post, I was thinking just those thoughts, "The legislative branch, by passing laws, limits your rights. The Court ensures and is securer of your rights." It's basically the same as a Management/Union contract in that the "laws" are primarily intended to control the troublemakers "for the good of the whole", whereas Arbitrators protect the rights of both parties.

    And you're right that the Court can legislate from the bench in some instances. Unfortunately, there are way too many examples over time of where the Legislative branch has allowed both the Judicial and Executive branches of our government to take on powers that don't belong to them - "Executive Orders" comes to mind, but I can't give explicit examples off the top of my head.

    In your example of the Texas Department of Corrections, I surmise that the reason the Court was setting policy was because the Legislative and Executive branches failed to do their jobs, otherwise the Court would never have been involved. But then again, being a simple laymen, I may not understand the fine nuances involved.

    "Old school we just called it baffling them with bull**** and talking over heads.

    I used to have a book that I picked up in college with the title, "When in Doubt Mumble", and that's what it was really about. :l

    Yes, our buddy dgh is good at redefining the definition of words, just like his idol, but that's ok. :D :sp
     

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