U.S. News take on Heller


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rocinante
March 13, 2008, 07:01 PM
Interesting article about Heller on U.S. News and World Report.

This gets my goat though.

For most of American history, courts have interpreted the Second Amendment to apply to the collective right of states to assemble groups of armed citizens, such as the National Guard. Nine federal circuit courts have upheld that position, and the Supreme Court favored it when it last considered the issue in the 1939 case.

That is so backwards it made me spew my coffee. History started with FDR?

A Key Case on Gun Control (http://www.usnews.com/articles/news/national/2008/03/06/a-key-case-on-gun-control.html?PageNr=1)

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bumm
March 13, 2008, 09:33 PM
Yeah, I read that article somewhere too, and that part really jumped out at me too. If you don't like history, just rewrite it...
Marty

LAR-15
March 13, 2008, 10:00 PM
You don't know your history silly.

FDR was president during the Revolution until he died during WW II :neener:

LawBot5000
March 13, 2008, 10:07 PM
Actually the courts didn't start intentionally misconstruing Miller until US v Cases, a handgun case out of puerto rico. FDR wasn't dead yet, but he was very close.

Most of the cases came long after FDR had died. Basically it was a lengthy back and forth where a circuit would make up some arbitrary rule like "have to be in a militia," then when people started forming militias or using machine guns for militiary training, they said that it had to be a government militia only, only official military training and so on.

None of these opinions do more than make a cursory reference to US v Miller or the text of the 2nd amendment. They just cite miller like it entirely rebuts the notion of an individual right and then summarily dispose of the case with some new legal rule made up on the spot. The supreme court won't be giving up much by overruling these case. If anything, I think the 2nd amendment jurisprudence is a really damning criticism of judges who blindly go for stare decisis without ever reevaluating the prior opinions or researching the original intent of a statute or constitutional provision that they are purporting to follow.

Ratzinger_p38
March 13, 2008, 10:08 PM
Nine federal circuit courts have upheld that position, and the Supreme Court favored it when it last considered the issue in the 1939 case.

An outright lie. Look at the decision. The 'collective' right was the argument used by FDR's scum attorneys, not the decision reached by the court in the highly flawed decision.

Actually the courts didn't start intentionally misconstruing Miller until US v Cases, a handgun case out of puerto rico. FDR wasn't dead yet, but he was very close.

Very sharp. I note that when I have mentioned the Puerto Rican case, most other gun righters I speak to are like, "what?".

green-grizzly
March 13, 2008, 10:24 PM
The court of appeals in that Cases case is pretty ballsy. They basically say that Miller is outdated and they are ignoring it, even though it is only three years old.
http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/cases_v_us.txt

LawBot5000
March 13, 2008, 11:05 PM
US v Cases is almost impossible to find in westlaw or lexis nexis unless you know exactly which case you are looking for. It is the first and last case to look at Miller honestly. The court in Cases realized immediately that Miller stood for both an individual right and protection for military weapons. They then immediately reject this conclusion as insane because it would reach a bad result in their case (a challenge to a prosecution under the puerto rican handgun ban).

Subsequent cases avoid the analysis of Cases and just cite Miller as if it said "2nd amendment is a collective right of state miliitas" even though this is an insane conclusion that any English-speaking person can rebut with little effort. Long before I got near law school I had already discovered that the US v Miller decision was actually pretty favorable to our side but the circuits had spent decades pretending it said the opposite. This annoyed the hell out of me and still does.

In all fairness to those earlier judges, they didn't have the 1980s and later scholarship to base their decision on- courts that had the advantage of this work usually took a far different approach to interpreting the 2nd amendment(Emerson, for example). But I didn't have the advantage of this scholarship and I was able to read Miller and see an individual right. Let's hope that we have moved on from that approach.

RoadkingLarry
March 13, 2008, 11:05 PM
That is so backwards it made me spew my coffee. History started with FDR?

You've got to remember that for most people history started when they were about 5. everything before that doesn't really matter and may not have really happened.

Robert Hairless
March 14, 2008, 03:47 AM
U.S. News and World Report is clearly anti-gun.

In a back-of-the-book editorial a couple of months ago, publisher Mortimer Zuckerman praised New York City's Mayor Michael Bloomberg as the best mayor in the city and singled out Bloomberg's anti-gun actions for special praise.

Nobody's_Hero
March 14, 2008, 06:36 AM
Let's see what Thomas Jefferson has to say about this:



"On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."

You guys are right though, FDR doesn't quite go back far enough, and this is why I cringe when the experts say we need more math and science, with only a brief glimpse at history.

Nobody's_Hero
March 14, 2008, 06:43 AM
And while we're on the subject of the supreme court:

"You seem to consider the judges as the ultimate arbiters of all Constitutional questions, a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. The Constitution has erected no such single tribune, knowing that whatever hands confided with the corruptions of time and party, its members would become despots. It has more wisely made all the departments coequal and co-sovereign within themselves..." - Thomas Jefferson, Sept 28, 1820 Letter to William Jarvis

Jefferson on Judicial Review (http://etext.virginia.edu/jefferson/quotations/jeff1030.htm)

mbt2001
March 14, 2008, 11:34 AM
Eventually, every society becomes so "civilized" as to protect the guilty and victimize the innocent.

One of the problems I have often seen with the Judicial Review / Precedent way in which we do things is that people like Al Capone, John Gatti and Ted Bundy are the ones who "define" what the 2nd, 4th and 5th amendments mean and their scope concerning the law abiding... It is amazing that we have any rights left.

mordechaianiliewicz
March 14, 2008, 11:44 AM
Yep, the Supreme Court was to be the weakest of the 3 Branches. Essentially only having pimp slap power on the Executive.

Neo-Luddite
March 14, 2008, 01:14 PM
On the whole, it was poorly reseached and written, and slanted anti.

Not good for U.S. News--I expect more. And yes, I actually get a hard copy. It used to be a shade more conservative than Time or Newsweek--now?--ehhh--fluffy and driven by it's sponsers. What do I want for 10 bucks a year, right?

If it wasn't for National Geographic, I would pronounce printed periodicals dead. In spite of ups and downs, it is probably the greatest contribution the US has made to widely-distributed periodicals--and has taken a more conservative pro-hunting track of late. They used to advertise guns for sale via mail in the back pages, years ago.

Neo-Luddite
March 14, 2008, 01:31 PM
Yep, the Supreme Court was to be the weakest of the 3 Branches. Essentially only having pimp slap power on the Executive.


I am hopeful they will show us the best of high nobility of judgement entrusted to their office.

They may rise to occassion and suprise us all--casting out the money changers from the temple--an re-affirming the rights of free men and women as so granted by G-d and ennumerated by feeble human hands in The Constitution of the United States.

And if they fail to do so?---well, then we are set back to where we were prior to 1789--and may Faith and iron sustain us until better days.

yhtomit
March 14, 2008, 02:14 PM
LawBot500:

"US v Cases is almost impossible to find in westlaw or lexis nexis unless you know exactly which case you are looking for."

Any pointers? :) Sounds like a good case to have handy ...

timothy

CountGlockula
March 14, 2008, 02:17 PM
I actually bought the U.S. News magazine, because it had a nice photo of a Berretta 92F on the cover.

Good article and I'd recommend everyone get a copy.

Henry Bowman
March 14, 2008, 03:31 PM
Any pointers? Sounds like a good case to have handy ... See link in post #6, above.

yhtomit
March 14, 2008, 03:46 PM
Henry Bowman:

Thanks! My eyes have a great way of sliding over whatever it is I most want them to see sometimes.

Cheers,

timothy

Gaiudo
March 14, 2008, 03:48 PM
That was a fascinating case. It does indeed turn solely on the definition "what is a militia". Too bad they didn't engage at all with that question, but merely accepted prima face that militia meant enrolled in an official govt. military program.

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