2A Court Challenge

[Graystar]

they are not guidlines or simply an 'enumeration of rights.'

Yeah, they are.

Amendment I says, "Congress shall make no law..."

Right. That's exactly what a bill of rights means.

Amendment VII reads, "In suits at common law, where the value in controversy shall exceed twenty dollars..."

And what comes next? "the right of trial by jury shall be preserved,..." Acting, once again, as an FYI to government.

What you don’t understand is that it is extraordinarily dangerous to say that the Bill of Rights is law. If our rights are only preserved through law, then our rights can be taken away by amending the laws that preserve them. Our rights are not created or granted by law. They exist simply because we exist

 

[Ieyasu]

And what comes next? "the right of trial by jury shall be preserved,..." Acting, once again, as an FYI to government.

Incorrect. It's not FYI only. The 7th Amendment states that "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved..." There is a specific dollar amount given. That isn't a guideline, it's a specific amount and is the supreme law of the land.

Amendment I says, "Congress shall make no law..." Right. That's exactly what a bill of rights means.

Not at all. The expression of a certain right, doesn't necessarily forbid the congress from passing a law with respect to that right, but with the first amendment it is specifically prohibited. As an example, the Fourth Amendment doesn't by itself preclude the congress from passing reasonable search and seizure laws.

 

[Graystar]

As an example, the Fourth Amendment doesn't by itself preclude the congress from passing reasonable search and seizure laws.

Well if the search is reasonable, then it doesn't violate our right, does it.

 

[Ieyasu]

Well if the search is reasonable, then it doesn't violate our right, does it.

That's right, but it doesn't preclude congress from passing a law with respect to that right as the first amendment specifically does.

Do you acknowledge that the Bill of Rights is a part of the Constitution?

 

[Ieyasu]

What you don’t understand is that it is extraordinarily dangerous to say that the Bill of Rights is law. If our rights are only preserved through law, then our rights can be taken away by amending the laws that preserve them. Our rights are not created or granted by law. They exist simply because we exist

This is a mis-statement of my position. I am not claiming that "our rights are ONLY preserved through law." Some of the Founders wanted those 10 Amendments added as an "extra precaution." Nor am I claiming that because the Bill of Rights is law, that our rights are created or granted by that law. Rather, those 10 Amendments were meant to preserve and guarantee.

Calling them guidelines is far worse. When most people hear that, they will mistakenly assume that they don't need to be followed to the letter. In fact, that is how I see many people these days treating the Bill. As guidelines, that don't need to be followed. Surely, you don't mean that when you are referring to them as guidelines, correct?

 

[bamawrx]

another update

michigander,

As long as I have a true intended use at the time I sign the Form 1 then I have committed no perjury. The intended use is important in that the courts could argue that the intended use was not consistent with the "militia" and therefore not protected under 2A. The intended use would likely be self defense and defense of State. I too am trying to cover all bases.

Unfortunately, I have bigger legal fish to fry long before filing any forms to the US Treasury.

Another update:

Legal council is considering my justiciability based on amended arguments. I’ll let you all know what he says.

 

[Graystar]

Do you acknowledge that the Bill of Rights is a part of the Constitution?

I never said it wasn’t. I only said it wasn’t law.

but it doesn't preclude congress from passing a law with respect to that right as the first amendment specifically does.

Here, you are absolutely wrong. It most certainly DOES preclude congress from passing a law that would violate our right against unreasonable searches and seizures.

This is what you do not understand. Even if the Bill of Rights were not added to the Constitution, we would *still* have a right against unreasonable searches and seizures. Congress could *still* pass no law respecting an establishment of religion. That is because these are not laws but principles upon which our republican form of government is based.

When a federal court ruled that Roy Moore violated the First Amendment by erecting the Ten Commandments monument in the rotunda of a state building, there was no federal law involved that had been passed by Congress. Nonetheless, Moore’s actions violated the First Amendment. That is why we cannot strictly abide by the Bill of Rights (in the same way we must strictly abide by law.)

California once tried to say that cops are allowed to compel confessions from suspects, since the Fifth Amendment only applies to the *use* of compelled statements in court. Obviously, the police wanted to submit the confession and leave it up to a jury to decide if it was compelled or not. Luckily for us the courts saw the folly of such a line of reasoning. BUT...if we do as you and Ieyasu believe, and follow the Fifth Amendment to the letter, then the court would have no choice but to allow the cops to compel confessions...just as long as the confessions weren’t used in court. That’s ridiculous! And that is why it is so important that the Bill of Rights be treated the way a bill of rights is supposed to be treated.

 

[Ieyasu]

Here, you are absolutely wrong. It most certainly DOES preclude congress from passing a law that would violate our right against unreasonable searches and seizures.

It's clear you misunderstood what I wrote, but rather than beat that to death, I will take another tact further down...

This is what you do not understand. Even if the Bill of Rights were not added to the Constitution, we would *still* have a right against unreasonable searches and seizures.

Either you wrote your post before you read my last post, or you didn't pay sufficient attention to it. To repeat, I wrote the Bill of Rights was added to the Constitution as an extra-precaution to "preserve and guarantee." I didn't say create. Of course they were pre-existing rights or limitiations on what the federal government could do (for the most part). That doesn't mean it's not law.

Do you acknowledge that the Bill of Rights is a part of the Constitution?
I never said it wasn't. I only said it wasn't law

I never claimed otherwise. I just wanted to make sure you were aware of that fact because from the Constitution itself (Article VI):

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, SHALL BE THE SUPREME L-A-W of the land; and the judges in every state shall be bound thereby, ANYTHING in the Constitution or laws of any State to the contrary notwithstanding."

In other words, whether pre-existing rights or prohibitions on the federal government were pre-existing or understood, is irrelevant. ANYTHING written in the Constitution is law whether you like it or not, whether you think it's good or not, whether you think it's necessary or not.

(I'm going to be away from the computer until later tonight.)

 

[Graystar]

ANYTHING written in the Constitution is law whether you like it or not, whether you think it's good or not, whether you think it's necessary or not.

The Judiciary doesn’t view the Bill of Rights that way. There are many laws that appear to fly in the face of certain amendments. Certain types of speech are prohibited (such as “fighting†words) and certain religious practices (such as animal sacrifices.) If the First Amendment were viewed as law, these other laws would be struck down. But because the First Amendment isn’t law, the Judiciary has allowed these other laws to stand. I’m not saying it’s right or wrong...just saying that’s how it is.

 

[ClonaKilty]

Bamawrx: check your PM inbox

 

[Ieyasu]

The Judiciary doesn’t view the Bill of Rights that way. There are many laws that appear to fly in the face of certain amendments. Certain types of speech are prohibited (such as “fighting†words) and certain religious practices (such as animal sacrifices.) If the First Amendment were viewed as law, these other laws would be struck down.

Nope. Using your argument I could replace the Bill of Rights with the Constituion itself! Ie., there are many laws that appear to "fly in the face of the Constiution itself."

Judges give their 'rationales' as to why those laws are Constitutional and why their interpretations are within the bounds of those amendments as they have interpreted them.

But because the First Amendment isn’t law, the Judiciary has allowed these other laws to stand.

Non sequitur. If a judge doesn't 'correctly' interpret an amendment or a law and ignores either one, that doesn't mean it is no longer law. The real problem is the judiciary is not following the rule of law. Again, I refer you to the example above, "Because the Constitution isn't law, the Judiciary has allowed those other laws to stand."

In other words some judges may 'interpret' a law based on their own predelictions rather than the rule of law. That doesn't mean the laws they have failed to 'correctly' interpret aren't laws.

And as I've pointed out to you, the Bill of Rights is the supreme law of the land, it's in the Constiution. How SOME in the judiciary may interpret it is a different issue. The fact is, that it is supposed to be interpreted as law as is anything in the Constitution itself.

 

[Graystar]

Nope. Using your argument I could replace the Bill of Rights with the Constituion itself! Ie., there are many laws that appear to "fly in the face of the Constiution itself."

You could try it, but you wouldn't be very successful. That is an entirely different analysis. When determining if a law is within or without the powers of Congress, a careful reading of the Constitution is required as well as understanding of intent and purpose. But an analysis of a law that appears to infringe upon free speech does not require any reference to the Constitution.

 

[Ieyasu]

You could try it, but you wouldn't be very successful. That is an entirely different analysis. When determining if a law is within or without the powers of Congress, a careful reading of the Constitution is required as well as understanding of intent and purpose. But an analysis of a law that appears to infringe upon free speech does not require any reference to the Constitution.

It's the same... "When determining if a law violates the Bill of Rights, a careful reading of the Bill is required, as well as understanding of intent and purpose."

But an analysis of a law that appears to infringe upon free speech does not require any reference to the Constitution.

That's like saying an "analysis of a law that appears to infringe upon a constitutional amendment does not require any reference to the Constitution."

 

[Graystar]

It's the same... "When determining if a law violates the Bill of Rights, a careful reading of the Bill is required, as well as understanding of intent and purpose."

That's like saying an "analysis of a law that appears to infringe upon a constitutional amendment does not require any reference to the Constitution."

No it’s not the same. If you have issue with a law that effects the way senators are elected, you have to carefully review the 17th Amendment. If you think a law violates your right to privacy, there’s no need to review the Ninth Amendment. It is a principle of our form of government that we have rights and that the government will defend those rights.

 

[bamawrx]

http://www.law.utk.edu/faculty/2ndamend.PDF

I was sent this in reply to the "states rights" interpretation of the 2a. It is well worth reading, so please do so. If the 2a protects the states, like some on THR propose, the implications of such are indeed radical and not altogether bad.

 

[Ieyasu]

If you have issue with a law that effects the way senators are elected, you have to carefully review the 17th Amendment. If you think a law violates your right to privacy, there’s no need to review the Ninth Amendment. It is a principle of our form of government that we have rights and that the government will defend those rights.

Not quite. The Constitutional right of privacy has developed alongside a statutory right of privacy. The 1st, 4th, and 5th Amendments provide some protection of privacy and is extended through the 14th Amendment. Again, another example of the Constitution and anything in it being the "supreme law of the land" (as expressly stated in the Constitution).

 

[Ieyasu]

bamawrx,

Nowdays, most anti-2A "scholars" have abandoned the "states' rights" interpetation in favor of an individual right's interpretation that is only protected when in the "organized" militia.

 

[Graystar]

Not quite. The Constitutional right of privacy has developed alongside a statutory right of privacy. The 1st, 4th, and 5th Amendments provide some protection of privacy and is extended through the 14th Amendment.

In the Roe v. Wade decision the court barely made reference to the Constitution when if found the statutes in question violated the right to privacy.

"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

And that's about it. And this is what I'm trying to say. When it comes to the protection of our rights, principals matter more than what’s written on paper.

The first Amendment starts “Congress shall make no law respecting an establishment of religion…†Does that mean that the executive branch can perform other acts that respect the establishment of religion? No it does not. A drinking law that states persons under 21 cannot consume alcohol will mean that persons 21 and over *can* consume alcohol. However, the same does not hold true for the First Amendment. Just because a specific restriction is enumerated doesn’t disparage other restrictions from existing. This is why the Bill of Rights is treated differently.

When I say the Bill of Rights is not law, it is not because I see them as lesser powers, but because I see them as having greater powers than mere law. Even though the Constitution is the supreme law of the land, it is still subservient to the principles of our form of government. Those principles are embodied in the Bill of Rights.

 

[Ieyasu]

In the Roe v. Wade decision the court barely made reference to the Constitution when if found the statutes in question violated the right to privacy.

It referred to the Constitution to hold a state-law unconstitutional.

From Roe v. Wade:
"The Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution."

In Roe v. Wade, a state law was under consideration, the Court applied the 14th Amendment.

Roe v. Wade does nothing to support your contention that the Bill of Rights is not law.

And this is what I'm trying to say. When it comes to the protection of our rights, principals matter more than what’s written on paper.

That's a completely different claim from the insistence that the Bill of Rights is not law.

When I say the Bill of Rights is not law, it is not because I see them as lesser powers, but because I see them as having greater powers than mere law.

In previous posts you called them guidelines. To most people, guidelines are less restrictive than laws. If you want to view the Bill of Rights as greater powers than mere law, that's fine, however you are wrong to be telling people that the Bill of Rights do not have the force of law. (And just because some judges don't follow the Bill, doesn't mean it's not law either. As I previously mentioned not all judges follow the law.)

Even though the Constitution is the supreme law of the land, it is still subservient to the principles of our form of government. Those principles are embodied in the Bill of Rights.

That may be true, but it doesn't change the fact that the Bill of Rights must be treated and interpreted as law.

You are trying to say that what distinguishes the Bill of Rights from "regular laws" is that, for the most part, those Amendments cannot be Constitutionally repealed/annulled, which makes them different from "lesser" laws, correct? Ie., the Bill of Rights is a "higher" law.

 

[bamawrx]

update

I heard from a very prominent 2a attorney today about the proposed case. He is too busy to take the case, but referred me to another 2a attorney that regularly does this kind of work. I will make contact soon, and let you all know what happens.

Also, the attorney suggested, in so many words, that it might be better to wait out the US vs Stewart to see how the 9th acts under review. The cases would be very different, but would share the interstate commerce arguments in addition to the 2a and potential equal protection claims.

 

[Vibe]

What's to "wait out"? The 9th ruled that home made machine guns were outside of federal Jurisdiction (so long as they did not cross state lines), and the U.S. Supreme court chose NOT to intervene (at least as it pertained to the discrepancy between the 9th's Stewart and 5th's Emerson cases in the 2A Rights conflict of rulings)

Exactly what pending action are we supposed to be waiting on? Becasue I wasn't aware of any.

 

[bamawrx]

The government was granted their motion for reconsideration of the decision, and they were also granted a "stay" of the order pending that review. So, right now we have nothing, and the results of the review will be very important.

 

[bamawrx]

Final Update:

I have been asked to not pursue this case by a nationally known and respected 2nd amendment defender. The case would not work, and create a bad precedent. Instead, we should watch carefully the DC cases and a few others to see how they turn out. The national strategy is to create positive precedents with small victories that can be built upon. Going for total victory in one case will not work.

The last thing I would want to do is damage our position. I have decided to spend my time and efforts in researching and correcting Alabama’s CCW laws.

Jim March has agreed to help me with getting the information that is required to see what needs to be done. We are all familiar with his efforts in California, and it turns out that Alabama has some similar problems. I will start a new thread on the Alabama case if needed.

I appreciate everyone’s interest, pm’s, feedback, input, etc

 

[BB62]

Bamawrx,

So that those of us who are not fully "in the know" can get to be, can you spell out what cases we should be keeping our eyes on - IOW, name, what matter is being contested, and in what court?


Thanks,
BB62

 

[Graystar]

The case would not work, and create a bad precedent.

Told ya.