[Kharn]

http://www.supremecourtus.gov/docket/03-51.htm

Aug 20 2003 DISTRIBUTED for Conference of September 29, 2003.
At the conference, the Supreme Court Justices will meet and vote on the case, 4 'yes' votes are required for the court to hear the case, with the results published a few days later (usually within a week).

Kharn

[Sven]

Taking bets...

[Waitone]

There's a bad moon on the rise.

[Futo Inu]

Waitone, I agree with you. I don't want the SCOTUS to have to decide all at once:

1. Individual or not
2. Incorporated or not; and
3. Extent of 2A beyond clearly military weapons

I'd much rather they take bite-sized chuncks, deciding 1, 2, then 3 in that order (then later deciding number 4 issue, the extent of the 2A vis a vis carrying/bearing in public places).

Emerson was beautiful because it ONLY addressed number 1 (number 2 needed not be confronted because it was federal action, and 3 did not because a Beretta is identical to an M9, a military weapon, protected under US v. Miller)

Now Silveira is asking the supremes to rule in his favor on 1 and 2, AND be also willing to say that not just "weapons useful to paramilitary and military groups are protected" but that so are semi-auto guns of certain types. I'd rather they deny cert in this one, and for us to wait for 2 things: (1) one or two more Shrub appts - should occur in next 1.5 years, and (2) a case much like Emerson, that confronts only issue 1, to establish the individual right first. Then we move on to the states depriving the 2A. Then, we try to extend it past just machine guns and other clearly military arms, to virtually all small arms. Silveira does have one slight advantage over Emerson - application of the govermental interest test to the restriction is much harder to do for an outright ban, than with the domestic restraining order situation of Emerson. Actually, appying ANY test is bogus, because strict strutiny must apply in the case of a fundamental right, such a the 2A, and so the law in Emerson should have failed (and thus "fell"); so should the one in Calif, but at least, if a test IS deemed appropriate (such as an intermediate scrutiny perhaps), then at least the blanket ban in CA looks bad for the state relative to the gun prohibition for one "deemed to be potentially dangerous by the state" as was the case in Emerson, where he was under a domestic restraining order. Other than that, I fear this case being decided as well. Actually, number 3 is not that big of a worry, if the plaintiff established at trial (as Im sure he did) that the guns in question are useful to a military group. After all, the M16 and M4 have single shot (semi-auto) modes, as does the M9 and several other military weapons. As far as standing goes, Silveira clearly has standing - the 9th circuit judges should be tar & feathered and removed from office and prohibited from ever holding another gov't job for their bogus decision that he didn't have standing. :cuss:

[Waitone]

Futo, your understanding of the issues is far deeper than mine. I tend to look at the broad factors invovled and draw conclusion which may or may not be confirmed by an analysis of the details.

The reason I sense a bad moon on the rise has to do with the disposition of the courts over the last few years with this most recent session clearly in focus. I am of the opinion SCOTUS has periodically jumped the tracks in a number of its ruling. However, this last session was of concern, not because it jumped the tracks and issued what I consider to be dangerous decisions but because the court was so open in its insistence we as a country must now consider law code from other nations in rendering decisions in the US. An almost "in your face" attitude. Then as a punctuation mark on the whole episode, the court dropped its decisions and the three justices most responsible for its ill advised decisions hop an airplane and head for Europe to consult on the international court. The association is just too close.

I don't know about you but I get the willies thinking about a make or break 2nd amendment case in front of a court that is now publically on record as not limiting itself to the constitution.

The anti 2nd amendment crowd has or is losing everywhere it turns. Gun control is a loser. CCH at the state level grows while the federales become more restrictive. They can't get more restrictive federal legislation enacted so they move to civil court where their cases are being dismissed slowly but surely. The Hope Diamond of the anti world the AWB is going down. So the only lever of power they have left is the courts. So at a time when courts become more important to the future of the anti-2 movement, the SCOTUS publically becomes kissy-kissy with european law where anti-2nd amendment principals are foundational.

I get a bad feeling.

[Billll]

We could wait untill we got 9 clones of Atilla the Hun on the bench, but that may take a while. C'mon guys: "Faint heart n'eer won the fair maid."

[geekWithA.45]

I think I've posted this elsewhere, but the possible outcomes are pretty clear:


-Denies Cert.....IMO the probable outcome. They've been bending over backwards not to hear a 2a case.

-Hears the Case:

-Confirms individual rights, with or without incorporation: Dancing in streets.

-Denies individual right: the mayhem meter spikes, not good.

-Muddy ruling: IMO Probable outcome. This can range from biz as usual, to bizarre conditions being placed on 2A. My guess is that they'll confirm individual rights in theory, but allow lots of administrative/regulatory wiggle room in practice such that the individual right can be de-facto squelched, at least on the state level. This is essentially what we've seen over the last 70 years: findings that heaps and heaps of regulatory process and conditions on RKBA do not amount to denial of RKBA, and therefore it's OK.

Theoretically, this oppens the door to "absolute minimalist RKBA". Taking it to it's logical conclusion, you might end up with a situation like this:

"As long as citizens have the right to file petitions to purchase the one approved single shot .22lr rifle, and keep it in their homes, RKBA is found not to be infringed"


All to frequently, the courts have substituted "the right to engage in an administrative process to obtain RKBA" for RKBA itself, which flies in the face of history, the intended purpose of 2A, and all other rulings re: free speech, poll taxes, and the like.

[oldfart]

I spent some time in a military hospital once. There were some guys in there with some nasty infections that needed frequent penicillin shots. Those that gave the corpsmen a hard time seemed to get more painful shots-- that is, the needle was pushed in more slowly. Those who kept their mouths shut got the normal quick insertion of the needle and less pain.

We've been taking the "needle" slowly for the past seventy years. I'd like to get this over with-- one way or the other. If the SCOTUS decides we shouldn't have personal weapons we'll know what to do. If they decide the other way, we'll know we've already done the right thing all these years. Either way, we'll know SOMETHING and that'll be better than where we are now.

[geekWithA.45]

Oldfart:

I agree. In another thread, I discussed the various ways in which the humble petitions of the people (to bear arms or to have their gun rights restored) entered into a grey region where they where neither upheld nor denied.


As it stands, our RKBA exists, both by Right and by Constitution, but it is in a "grey area" that allows for a great deal of erosion of the practical application of that right.

Now, NOT clarifying it certainly serves SOME interests, but whose? The Peoples? I don't think so.


It's time. To Get. A Definitive Ruling.

[BTR]

This supreme court said the 14th Ammendment doesn't prohibit racial discrimination by public institutions. They have proven themselves unable to actually read what is printed in the constitution, so I think I know what will happen to any Second Ammendment case they rule on. I do not want this court to take this case... if so, I think there is a great chance the ruling would haunt the USA for centuries.

[oldfart]

BTR, if the SCOTUS issues a ruling that does indeed "haunt us for centuries," we deserve it. If they provide the tools for governmental confiscation of our guns-- and if we allow it to go forward, we deserve that too. The original signers of the D of I risked EVERYTHING to give us the freedom we are now afraid to defend.

I can't speak for everyone, but I'm tired of not knowing whether or not I can expect a SWAT encounter in the middle of the night, or whether Officer Freindly is going to slip an envelope of chemicals under the seat of my car while he's checking something else. I remember trusting the police to help me if I needed it. Now, if I had to call them I'd worry at least as much over them as the bad guy I needed help with. There once was a time when you could drive along a highway and the only sign of government was an occasional sheriff's car. Now we see patrol cars from several agencies plus tv cameras "to monitor traffic" and traffic monitors set into the pavement to record... God knows what.

No, we need some sort of a watershed event. For the past seventy years the playing field has been slowly tilting against us. There is only one possible outcome if we continue as we have, waiting for a better case, a better time, a better court. Some among the founders wanted to wait until the French declared their support. Others wanted to wait until our army was bigger and better equiped. Fortunately, events made it impossible to wait and we went ahead with our revolution.

I am old. If the JBTs kick in my door and shoot me they'll only shorten my life by a couple of years, so I don't have much to risk by being bluntly realistic. While I can't say that I want a new revolution and all the suffering it would bring about, I know that it will eventually happen anyway. I have said this before and I still believe that 'all governments and all civilizations fall. The more entrenched the government or civilization, the harder the fall.' This government is not immune to the lessons of history, no matter what ends it goes to in an effort to save itself.

[Waitone]

I don't consider myself to be old. I am experienced and maybe my experience is unusual.

If conflict comes my direction I will fight to not only win but destroy those who attack me.

If I have the privilege of considering conflict, I will not engage in conflict unless I have a really high percentage of winning. I will then go all out to achieve victory. That means I get to choose timing, locations, terms , weapons, and tactics. I have no intentions of throwing my body into a conflict unless I have a strong chance of walking home.

Silveira smacks of choosing to fight on the oppositions terms. Something I'll never do.

I just do not understand the attitude of fighting a critical fight just to get a showdown. I am in the fight to win, not to make a statement. I want to win, win, win.

Explain to me what the pro-2 side will do if SCOTUS comes back with a ruling that denys the individual interpretation and that the second amendment only refers to the state's right to a state sponsored guard. What will have been accomplished? At that point the list of options becomes extremely short and decidely stinky. All this because some of us can't wait 2 years for the chance of a better court. The constitution allows for congress to correct the excesses of the courts. I have yet to hear of an example where congress decides enought is enought. The best way to control the court is to make sure the right kinds of people are put on the courts. Forcing a fight at the wrong time is stupidity at its height.

[tyme]

Explain to me what the pro-2 side will do if SCOTUS comes back with a ruling that denys the individual interpretation and that the second amendment only refers to the state's right to a state sponsored guard. What will have been accomplished? At that point the list of options becomes extremely short and decidely stinky.
If the SCOTUS rules no individual right WRT the CA AW ban, the Republic will have failed. All three branches will have approved of unconstitutional and useless legislation. The Republic may be broken today. But if the SCOTUS rules the wrong way, everyone who cares to pay attention will know the republic is broken. It will be obvious.

What would happen then is uncertain. But if you believe knowledge is power, knowing the Republic is broken would give us more power relative to the government, which can only be a good thing.

[M1911Owner]

I too have a bad feeling about this. I don't see how they could make a ruling that says that an AR-15 is constitutionally protected, but an M-16 is not. And I really, really don't see them making a ruling that puts full-auto weapons back on the street. So, they're almost certainly going to rule that semi-auto "assault weapons" can be regulated.

On the other hand, thinking more about it, I suppose that they don't necessarily have to decide the whole thing... They could just rule that there is an individual right to keep and bare arms, remand the whole thing back to the Ninth Circuit, and let them take another stab at it.

(Edited to fix spelling)

[Jim March]

Wellllll...ya, Silveira is a bit scary.

But let's look at the flipside: all of the plaintiffs are honest, upstanding citizens. And the final cert brief with Lucas involved is quite spectacularly good. The various Amici range from good to superb.

What are the alternatives? Ever since Emerson in the 5th Circuit and Ashcroft's position paper, hoards of criminal defense lawyers have been claiming the 2nd, in many cases for people a LOT scummier than Miller was.

You want one o' THAT lot to become "the" big RKBA case?

[Waitone]

Larry Flynt and Dan Rather haven't tarnished the shine of part of the first amendment.

Jim and Tammy Faye Baker haven't detracted from the attractiveness of another part of the first amendment.

Defense lawyers claiming the 2nd amendment for scummy clients? Doesn't bother me. Just keeps the 2nd amendment in the public eye a bit longer.

My opposition to bringing Silveira to SCOTUS has nothing to do with the merits of the case. It has everything to do with the newfound attitude of the court which will hear the case.

[longeyes]

Timing is everything. Bringing this case without a COMPELLING likelihood
of prevailing is just plain bad strategy. We have at least the
possibility of a more favorable court in a couple of years. I'm sure
Sun-Tzu had a quote for this rush to judgment, but I'll let
someone else dig it up.

[rick_reno]

I'd rather have a decision now than sometime in the future when our elected representatives have continued to chip away at the 2nd Amendment. Now, we still have some firearms - I have no assurance that at some future date we'll have that luxury.

[oldfart]

This debate has been carried on by other men, in other places and in other times. Ssome of them were far better at expressing themselves than I will ever be, so (if you don't mind) I'll borrow from another, similar speech.

"No man thinks more highly than I do of the patriotism, as well as abilities, of the very worthy gentlemen who have just addressed the House. But different men often see the same subject in different lights; and, therefore, I hope it will not be thought disrespectful to those gentlemen if, entertaining as I do opinions of a character very opposite to theirs, I shall speak forth my sentiments freely and without reserve. This is no time for ceremony. The question before the House is one of awful moment to this country. For my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfill the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offense, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the Majesty of Heaven, which I revere above all earthly kings.

Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation? For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst, and to provide for it.

I have but one lamp by which my feet are guided, and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years to justify those hopes with which gentlemen have been pleased to solace themselves and the House. Is it that insidious smile with which our petition has been lately received? Trust it not, sir; it will prove a snare to your feet.

Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with those warlike preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation; the last arguments to which kings resort. I ask gentlemen, sir, what means this martial array, if its purpose be not to force us to submission? Can gentlemen assign any other possible motive for it? Has Great Britain any enemy, in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us: they can be meant for no other. They are sent over to bind and rivet upon us those chains which the British ministry have been so long forging. And what have we to oppose to them? Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne! In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free-- if we mean to preserve inviolate those inestimable privileges for which we have been so long contending--if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained--we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of hosts is all that is left us!

They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot?

Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations, and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable--and let it come! I repeat it, sir, let it come.

It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace-- but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!"

Patrick Henry had a single King where we have a President, Cabinet Secretaries, Supreme Court Judges and legions of lesser bureaucrats. He dealt with Parliament instead of Congress and the occupying army he spoke of is now matched by armed agents of federal and state agencies originally formed to 'help us.'

He exposed the danger of waiting for better, more favorable conditions. He cautioned against hoping for the best when all indications pointed to a hopeless situation. Indeed, with minor changes to account for the different tyrants, his speech fits today's situation as well as it fit then.

Why then are we going through this now? Did the tyrants of the 1700's somehow have more and longer teeth and claws? Is John Ashcroft less a danger to liberty than George III? Were the post riders of Henry's day more adept at reporting transgressions of the law than is the FBI with e-mail? Were the men killed in the Boston Massacre more dead than Vicki Weaver?

Our situation today is almost identical with that of 1775-6. Our technology is better, but our dilemma is the same. If we wait, circumstances may tilt in our favor but history has shown that until then we will continue to lose and then the best we will be able to hope for is to recoup that which we should never have lost.

Take Silviera all the way!! We may win, but if we do lose we'll at least know what we face.

[Gray Peterson]

For all you folks who seem to think waiting is a good idea:

I might want to point out that there are three judges awaiting confirmation that's being held up by Daschle, Schumer, Kennedy, and company because they are too conservative (read: not a moderate or liberal).

Do you not think they will do the same thing with a SCOTUS justice appointment?

In which case, compromise will come into play, and if Bush appoints someone less than a full on pro-gun person, we'll be back where we started, or if Rehnquist or O'Connor retires, worse off.

[Al Norris]

oldfart: Patrick Henry's speech should be a mandatory read for school. Like it used to be, once upon a time....

There are a couple of other relevant quotes that people should heed:

"If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or your arms. Crouch down and lick the hands, which feed you. May your chains set lightly upon you, and may posterity forget that ye were our countrymen." - Samuel Adams

"can history produce an instance of rebellion so honourably conducted? I say nothing of it's motives. They were founded in ignorance, not wickedness. God forbid we should ever be twenty years without such a rebellion. The people cannot be all, & always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty. We have had thirteen states independent eleven years. There has been one rebellion. That comes to one rebellion in a century & a half for each state. What country before ever existed a century & a half without a rebellion? & what country can preserve its liberties, if its rulers are not warned from time to time that his people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure." - Thomas Jefferson to William Smith in a letter.

"War is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and patriotic feeling which thinks that nothing is worth war is much worse. The person who has nothing for which he is willing to fight, nothing which is more important than his own personal safety, is a miserable creature and has no chance of being free unless made and kept so by the exertions of better men than himself." - John Stuart Mill

"Posterity! You will never know how much it cost the present generation to preserve your freedom! I hope you will make good use of it! If you do not, I shall repent in Heaven that I ever took half the pains to preserve it!" - John Quincy Adams

I am not an old man, just in my early 50's! I've fought in one war and I don't have a death wish to fight in another. But. This state of affairs has gone on far too long. There will never be a right time and a right place and a right assemblage of Justices. If I don't consider what I'm leaving to my children and their children, how can I look myself in the mirror in the mornings? How can you?

[BB93YJ]

I agree that the true Patriots of that earlier, better time, should be studied and their letters read in the schools today, as they were in the past. If they know not from whence they came, how can they know where they are headed ?

Not to ruffle feathers, but the question begs, whether or not we want Silveira before the Supremes, what exactly, can we do about it, either way...

Not much, methinks.

[tyme]

You could submit an amicus brief supporting Lockyer... if you could stand to write pages and pages of lies... :) But I'm not sure whether they'd accept the brief even if someone were to write it. And doesn't the case have close to the limit for amicus brief pages?