One lawyers opinion.

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

  1. deadgreenhead

    deadgreenhead Senior Refuge Member

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    See, that's exactly why I don't like to discuss personal credentials. They are so much of an unnecessary distraction and have nothing to do with the issues at hand. Anybody that *cares to* can understand and discuss this stuff just as well as anyone who's had formal training in the area. True, I have a point of view and opinions, but I like to think I push and pull these conversations along without too much in the way of spin. I get called a liberal (every time), which I always think is funny. Compared to what? My POV is spoken from the center. Dead center. Or is that worse? :l Actually, now that I think about it, that is bullsh*t...I am a little left of center, but not as far as you all think I am and think where I am should be the center. ;)

    WKL, I am very surprised to hear you accuse me of talking over people after several of the conversations we've had. Go figure.

    Woodie, I admire Clinton just as much as not. Think about that.

    Here is the way I like to think about where our rights come from and our government and the Constitution. Our Consitution both limits and empowers government; it creates a framework for our goverment and limits government by protecting individual rights. It is anti-majoritarian by design to serve the function of protecting minorities (any all minorities) from the tyranny of the majority. It is very difficult to change for the very reason that we don't want fundamental change caused by the temporary insanity history teaches infects us during times of crisis.

    Whatever your view of the true source of our individual rights, it is true, in a practical sense, any and all branches of our government can determine we have rights we did not have before. But as far as protecting individual liberties, the Constitution is the primary source. Just as true, the judiciary, and particularly the SC (as the final arbiter of the Constitution) is the branch we have decided has the duty to "say" what the law is.

    There are basically two schools of thought regarding how the Constitution should be interpreted. Originalists and nonoriginalists. Originalists, like Justices Scalia and Thomas (they are actually regarded as "strict originalists"), say we cannot go outside of the four corners of the Document that is the Constitution to determine a right. In other words, if you do not see it expressly enumerated, basically it does not exist. And if you want a right and do not see it, you better get a new amendment because it is impermissible to interpet a right by reading between the lines. To determine what IS there, an originalist looks at history, the original intent of the framers (what they meant by the words they used then) and our traditions as a country, only. And if the intent of a particular issue cannot be determined by the above framework of determining the intent of the plain language of the words used in the Document using history and tradition, then the matter is better left to the political process. Too bad, so sad, better luck next time.

    In contrast, nonoriginalists assert that the originalist approach is all well and good, but that the political process fails all too often, the framers recognized this and were thus far more clever than to lock us into the language of one point in time. As a result, it is permissible to interpret the words of the Consitution using the basic values expressed in the outline (which is all the Consitution is anyway--an outline) as a reference, to resolve constitutional questions going forward, consistent with the framers intentions. In other words, the Document being the product of political compromise to begin with, there is no single intent.

    Bottom line. Any "method" of intepretation requires just that, interpretation. The SC is the final arbiter of the Consitution and because individual liberties and fundamental rights are protected by the Consitution above all other sources of law, the SC is the final determiner of those rights. Which is why I say to you, Woodie, that is all in your head. Sure, you can claim to have any right you want. On a personal note, I believe we have basic fundmental rights that are not expressly enumerated by the Consitution and that the SC is giving me credit as having. But until that right is fleshed out and the parameters are drawn as to the particular boundaries of that right by the SC, does it really exist? As a practical matter the answer is no. Not that we don't have the right, but more that the rights we claim will not be protected by the coercive force of government. Again, we can sit around and talk about whether the SC does or even should have the right to interpret the Constitution in the first place, but that isn't going to change the way it is. Where we are now.

    So where does that leave us with the 2A? The Supreme Court has all but ignored it. I have four (fat) Constitutional law books on my bookshelf at home and the Second Amendment is not discussed in any one of them. Are these pinko-commie books? They are just regular Con law books. But there is nothing to discuss. And so, if you have a Consitutionally protected right to own and bear arms, where is it? What does it look like? It's unfortunately not whatever the NRA says it is because that leads to chaos. And it's not just whatever you want to to be (to the extent that differs with the NRA's POV) for the same reason. Fact is you don't have one. As we are now, the states have all the power they want to regulate guns, including taking them away entirely. The federal government is the same way, just to some lesser extent, because the 2A operates to limit the federal government to some degree...a degree not yet determined (could eventually be no degree). The reason for that is because we're all sitting around waiting for the SC to say we have it--again, something they are as yet to do. And they don't have to, either. I have said it before, where we are now in terms of gun control is very close to where we are likely to end up afte rthe test case reaches the SC and the status quo is already a winner for the pro gun guys. And I don't disagree with you about their role to some extent, but I think you are fialing to recognize the significant weight they carry in our system. The SC is the final arbiter of the Constitution. They decide what it says and what it doesn't say and they decide whether something in the Consitution will be given life. This is ancient history. This is now how our Consitutional system works. Please don't shoot the messenger.

    Bringing us back around to orginalism vs. nonoriginalism, the 2A presents a very interesting problem. To interpet the 2A from an originaist POV, I find it difficult to imagine that the qualifying language beginning the Amendment will be read out of the thing if it ever does reach the Court. Particularly in light of the historical dodo that is the Third Amendment.
     
  2. WoodieSC

    WoodieSC North/South Carolina Flyway Forum Moderator Flyway Manager

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    Interesting comments, dgh, and food for thought. I'll read it through a couple of times later when I have some time to digest it better.

    Thanks.
     
  3. deadgreenhead

    deadgreenhead Senior Refuge Member

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    David, here's the rest. I am going to give my thoughts as to the NRA's position as I go. This is all very generally...

    The Dredd Scott Case. This is widely regarded as the worst SC decision in history, or maybe it's a tie between it and Plessy v. Ferguson. Many scholars believe the case was at least in part a factor to starting the civil war, including at least partial credit given for that by Abraham Lincoln. No doubt, just about every word of it is bad law. In fact, it has been expressly superceded in all ways by the 14th Amendment (not to mention 140 years of Supreme Court opinions). Please note that at least seven of nine Justices got it all very wrong. And there were nine separate concurring and dissenting opinions written. I do not know where in the opinion the NRA's language appears, because I lack the time and the desire to read that case over again, but will bet it's in one of the concurring opinions, i.e., the one's that got it wrong. So what we are talking about is that the NRA's language is taken from one of the losing opinions (in light of the 14thA.), and it's only one Justice's words. But that's not really so bad for the NRA, if that's true; the real problem is that the Court did not reach the issue of defining what all are our rights as citizens in the case, just that Mr. Scott was not a citizen. So look at it as the Justice writing it was just talking (dicta). I actually think the reason this language apears in the case in the first place is possibly to inflame and alarm. I imagine the Justice was saying, in effect, "good lord, if we give a negro (their word) this right of citizenship, look what that means--they are all going to get guns!!!!!" But I'd be curious to know of anyone wants to dig through it and find the quote.

    We need to be mindful of the fact that just because the SC says something in a case somewhere, does not mean they have spoken to that issue or have made a difinitive ruling regarding same. In sum, these carefully chosen words are not law. To that end, they aren't even close. I almost can't believe the NRA's balls in using this case to support their cause, especially if my alarmist theory is correct.

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

    The NRA makes it sound like the SC has recognized a specific right to us that's above the Constitution here. Like it's close to God or something. I am not sure that is what the SC is saying in the case, but it couldn't have been any less clear. There is no mention of a "pre-existing" right in the opinion that I could find (contrary to the NRA's suggestion). In any event, the language could be construed to cut both ways, particularly in light of the discussion regarding state vs. federal rights and powers immediately preceeding the above quote. As with the Dredd Scott opinion, this language does not constitute a holding of the case (the Court was was explaining why an indictment count was defective), is therefore dicta. But I would need to do more research on this case to see how it really fits historically to know more.

    Presser. This case appears to be more about militias than about the right to own and bear arms. And contrary to the NRA's assertion that the SC "suggested the Second Amendment applies to the states through the 14th Amendment and thus that a state cannot forbid individuals to keep and bear arms for lawful purposes," the simple truth of the matter is the SC has never applied the 2A to the states via the 14thA--which is why the Sylviera v. Lockyear case requests Presser be overturned.

    I also find this language used by the Supreme Court to be most troubling for the NRA: "This right of the people to keep and bear arms for the purpose of forming a well regulated militia, like 'the right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances or for anything else connected with the powers or the duties of the national government, is an attribute of national citizenship, and as such, under the protection of, and guaranteed by the United States.'" For the purpose. For the purpose. For the purpose. The fact that the NRA doesn't use this language to further it's agenda speaks volumes to me. Because it doesn't.

    Miller v. Texas. This case means absolutely nothing to anyone. All the Court is saying here is that the alleged constitutional violations the defendant was asserting as a federal question for the first time on appeal were not properly raised by the defendant in the conviction proceedings below, so nice try, but get outta' here.

    Verdigo-Urguidez. I have heard about this case before, but had never read it. I can't say I know any more than I did before I read it. It looks like ot me that the Court is just trying to determine what is meant by "the People" in the Consitution, nothing more. And the language is borrowed from the 2A only to make the point for the sake of consistency (remember this is a Fourth Amendment Case). I am not sure that the Court made any particular pronouncement about our Second Amendment rights in this case. But maybe they did. Our Second Amendment right was certainly not at issue on the case and as I have said before, we read into these cases more than what the Court is actually saying at our own peril. To suggest, as the NRA has done, that this case "suggests [] the Second Amendment guarantees an individual right to keep and bear arms" appears to be taking quite a liberty with the language and smells like bootstrapping, given the context of the overall discussion.

    Perpich. ???? Maybe someone here cares enough about it to explain it to me, but I fail to understand the importance of this case to the pro gun lobby. Even skimming this thing was a total beat-down.

    In sum, the Cruikshank case is most interesting to me. Not so much for what the Court said there, but for what it apparently alluded to in moving quickly to suggest the indictment count was flawed. I wonder how the views of powers, rights and the 14th/10th Amendments tension would be viewed by today's Court. A lot of this has changed, I think. It all but quit talking about the Tenth Amendment for a while and has just more recently begun to discuss it again.
     
  4. Runnin' 87

    Runnin' 87 Elite Refuge Member

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    Don't worry DHG, I don't hate you. :l As if you cared anyways. :l


    Dude sometimes you just make my brain burn trying to figger some of that stuff out. That's can be a good thing for me sometimes. Some times I'm to tured to suffer through it.

    Like the long post you left above this one. I just drove in from Tyler. I just ain't going to sort through it right now. ;)

    It took me a long time to "get off the face" of what was written and learn to "see the reverse" and "the other trails." That is why I like threads like this, when my head ain't already tired.

    The kicker is, in the end it dosn't matter what we think or conclude. It is them folks in the black robes.

    Not discounted what you have said DGH Like I said, I just got in off the road. What Penns-Woods posted was on my mind.

    If what he said regarding the courts opinion of the banning of firearms is true, and I have no reason to doubt him having not read the opinion of the court myself, then "the slippery slope" leans the other way.

    If certain weapons were banned because they were shown to have no usuful military purpose. Then a court decision based on that logic would completly over turn the fire arms laws we have been working with since the mid '30's.
     
  5. Runnin' 87

    Runnin' 87 Elite Refuge Member

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    Ok, I went and walked around my garden, pulled a few weeds, propped up some 'maters, and let the dog run. I'm doing better now. I hate being road weary and just sitting down ain't a good cure for having been sitting down. So now I will just sit and type I guess.

    Garden in looking ok, buy the way. Just need some rain.

    To business:

    What is more meaningful, to me, is that we have been working under the same general frame work of firearms regulations since the mid 30's. Basically citizens may possess firearms, except the ones the government thinks are ugly or too destructive. The definations got a bit more restrictive during the Clinton years, but really nothing impacted the day to to day ownership of firearms.

    Now each of ya'll tell me the truth. Do you really need a bayonet lug? Do you really need more the ten rounds in a magazine? Did you ever really want to own a Tech 9? If you did own one, was it really worth having? I'll answer for you, NO. If you said YES your a dufus anyways.

    What was an absolute lie was the assertion that these new restrictions had any hope of reducing violent crime. They were just a first shot at manufacturers. In truth these restrictions have provided manufacturers with the where with all to create the best AR's ever. If your interested in this sort of thing. (The old H-bar ain't crap compaired to some of this new match stuff built within the new restrictions. The restrictions forced manufactures to focus on performance. Through that they did a fine job with perception.) To get around the restrictions the manufactures just created serial numbers anyway. Whoops I kinda jumped track, sorry.

    SO:

    How long does it take a set of laws to become an over riding theory, concept or common? Would 70ish years do it? Granted in global/historical legal terms 70 years is not long at all. We still discuss the Code of Hammerabi, the Ten Commandments, ect. In terms of pure American law and our Constitution though, 70 years is a significant amount of time. And these most recent 70 years and have the most meaning toward modern American society.

    I seriously doubt the SC will flip a set of laws that have become a modern concept. Considering P-W's accertion regarding the length of the shotgun barrle, a logical argument for doing just that exists. I seriously doubt the SC will, in majortiy, basically unwrite 70 years of laws based on the fact the a charge of shot finally achieves militarially useful velocity after having travelled down about 18" of shotgun barrle. In fact, with the advent of breaching rounds and their military application, that argument no longer has merit. The required 16" barrle length on a rifle also looses merit when modern submachine guns are added to the equation. Hey, their ammuntiton reaches militarily usuful velocities in how many inches? Six, four, how about two.

    What sort of decision does that leave the justices' with? I guess this is a question open to ya'll too.

    I think it is a sench they will remain with in the frame work we currently have. As a society there are some things the general public just doesn't need to have. Morters and gernade launchers come to mind. Though not "firearms in the terms we are discussing. The are arms though. Basically all "crew served weapons" have little public benefit.

    However here is the delima. If THE PEOPLE are to possess arms for a military purpose: ie - the militia - would not militias benefit from crew served weapons, mortars and gernade launchers? So here we go in the circle.

    Some would say the militia concept is out dated. Sure, it has been a while since we called up a militia. Teddy Roosevelt and his Rough Riders comes to mind. They got pulled up out of the bars and farms of the American west and sent down to Cuba. Heck ya'll know the story, no need in me preaching to the choir. Some of them boys that chased Poncho Villa, the only attack of a foriegn invading force onto American soil since when? Not to long ago either in legal terms. AYE!!! Even soldiers of today provided some of their own weapons. Oh yes, not all weapons used in our modern armies are government issued. Our soldiers bring their own guns to the battle field.

    So:

    When was the last time we used the 25th amendment? Not used to much is it. We keep it around becuase it is concievable that we may need it at some time. We keep it eben though we really don't want to have to use it. It is limited and is filled with as many worms, maybe more, than the 2nd.

    The 3rd flys in the face of the concept that the government can take a persons land for the benefit that a road be built for the betterment of the rest of society. I'll garuntee if it come down to it, solidiers will sleep in your house. Why have it?

    Couldn't 24, and 19 be considered pretty antiquated? The right of "all to vote" is perty much here now without any help from the constitution. The constitution may have got us there, those could be torn out and society would keep functioning just fine with out them. Lets chunk those.

    Arn't 19, 24 and 25 just as much amendments as 2?

    An argument based on some level of antiquation would never fly.

    We will keep our guns. We may not get to keep the ones we want though. I have no idea how the justices will define it.

    It would seem awflully shallow of the justices to say this gun is ok and that one is not. It would lack permenacy the decison needs. If this case goes to th SC and is heard, they will send us some conceptual frame work , much like we have today. They will recognize the pubilc right to own arms, but also recognize the need for that right to have limit.

    What ya'll think.
     
  6. Runnin' 87

    Runnin' 87 Elite Refuge Member

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    Man ya'll suck. Done RUNOFT.

    So is it one or two? What I mean is, are the "well regulated militia" and the "right that that shall not be infringed" two seperate and independent admonisions? Or is the "right that shall not be infringed" linked by purpose to the first admonision?

    We have beat this to death before but it really-really matters.

    If the two are linked then regulation is built in to the amendment. Just how regulated is a militia supposed to be? Is a militia regulated at the local level, state, federal, by who, and how?

    If they are linked then the sole purpose of "the right" is private possesion of firearms for the purpose of the milita. Then there is no "right" of possession for sporting arms. Only those of a military purpose and they are to be regulated in some manner.

    IF the two admonisions are independent. Are we currently functioning in an uncostituitonal manner by not providing for a well regulated milita? Do I have a constitutional right to form my own militia? Who and how would regulate my militia? Does the governemnt have the right to determine how my militia is to be run? It is my private milita maintained and regulated by me? No government funding? Can I charge the government or deduct the costs of doing what is constitutional, considering the times we live in, it sounds reasonable. Useing private funds to fill in the gaps in security. If the government can't/won't do I have a constitutional right or obligation too?

    My "right" to possess then shall not be infringed. Then I guess it would be an absolute right? An absolute right for weapons of a military purpose useful to a militia? All weapons? I want a SBE and a 70 mm mortar. I need a m-60 and several thousand rounds for my own security purposes.

    The government is failing to provide adequate security at churches, schools, and busses. Terrorists have shown a predispostion To atack these places. My militia will secure these places.

    This all makes for cool conversation. The reality of it really sucks.
     
  7. deadgreenhead

    deadgreenhead Senior Refuge Member

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    Yeah, wkl, looks like we've killed it. Just like old times at the end of one of these deals, huh?

    Either that or you made TOD so mad with your posts he popped all the tendons in his hand again trying to set you straight. :l

    Uh, David, you ok? Give us the word and we'll call for help.
     
  8. Runnin' 87

    Runnin' 87 Elite Refuge Member

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    Whew. Glad you spoke up DGH. Thought I was going :nutz talking to myself in here.
     
  9. deadgreenhead

    deadgreenhead Senior Refuge Member

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  10. The Other David

    The Other David Elite Refuge Member

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    Hi Guys,

    I'm back. Been a bit busy with work and family and having a few medical problems related to the anesthesia and pain pills they gave me. Hope I see the light at the end of the tunnel, and hope it's not a train headed for me!

    I have quit my job, last day is Friday. On the following Monday, 19 June, I start my own business up. Got a lawyer and a CPA working with me, I'll be an LLC. Gonna buy a Dodge Durango and take it off my taxes!

    I will have to look this over this week, if I have time. If I don't, you guys resolve it, just play nice. I don't want to have to spank you and send you to bed without supper!

    David
     

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