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Apellee's brief in Parker v. District of Columbia

Discussion in 'Legal' started by Ieyasu, Aug 5, 2006.

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  1. Robert Crim

    Robert Crim Member

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    gc/ct:

    There is a case from the Supreme Court of Oregon which explored the distinction between military and militia arms in detail. I do not have the cite off-hand. But I recall the case involved a sword, not a firearm. The court did an historical survey which (to its satisfaction) showed that militia arms did include the sword but not heavy weapons, which the States usually kept themselves in state armories (we had an old one of those in West Haven, near where I lived when there). I'll try and find the case, but I have been very ill over the weekend, indisposed.

    * * *

    Well, the debugging is relevant to Parker. I don't think some people appreciate the danger here.

    Justice Thomas has wanted to get a Second-Amendment case before the court for years. And division of the circuits is a primary way to get a case before the court. We have division of the circuits, Fifth and Ninth. So, there is a chance to get in.

    HOWEVER, As all of you know, I have serious reservations about Parker, because there is no focus whatsoever on militia arms. Also, commentators are just wrong that this court won't hear firearms cases -- in both United States v. Lopez, 514 U.S. 549 (1991) and Printz v. United States, ____ U.S. ___ (1995), the court invalidated federal legislation which infringed upon local control of firearms (which is kind of the reverse of what Parker seeks to do).

    In the Bailey case in Connecticut, their supreme court received a self-defense-only case from the NRA in an effort to void the State's assault-rifle ban. Not only did that court rule exactly as I have been telling you (and upheld the ban), it also added a footnote that militias were obsolete, and that therefore it is unlikely that anyone could bring a successful claim under the "defense of the state" half of Article I, section 15.

    IT CAN HAPPEN, GUYS. And this court is very conservative. SIX JUSTICES (including the late Mr. Rehnquist and Mrs. O'Connor) have used exact language I've used in this thread, writing in other places [e.g. Gregory v. Ashcroft, 501 U.S. 452 (1991)]. But, we don't even get a hearing if there is a bad precedent in front of us. "Certiorari" means just that: Appeal by permission.

    If Parker gets in, then screws up, every gun owner in America loses.

    See: I have done some homework.
     
  2. jbrown50

    jbrown50 Member

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    Robert Crim,

    I, for one, understand your point of view and I agree with the rationale of your strategy 'BUT' that's because we're on the same page as far as the true meaning of the militia(s).

    The problem is that the case has to be presented in DC Courts. DC and many other anti-gun enclaves have somewhat successfully ingrained the argument that the militia is obsolete for today's times. They argue that: "After all, we have the National Guard to take it's place, don't we?":scrutiny:. DC has never denied the Founding Father's true intent of the militia. It's application to modern times is what judges have been wrestling with. DC and other jurisdictions namely Chicago and those recently in Ohio have also argued that their needs are 'different' than those in the non-urbanized world.

    Next, there's the issue of 'standing'. What most people outside of DC don't know is that DC never pushes to prosecute individuals who are otherwise law abiding but are caught with an illegal firearm. DC simply confiscates the firearm and leaves that citizen to deal with the charge and arrest on their record. At that point there's no 'standing' for these individuals to persue a possible lawsuit or other litigation simply because there's no threat of prosecution. Most of these individuals simply pay out of their pocket to get an expungement done of the arrest and charge. DC knows that there'd be little sympathy or support from law circles or the general public for someone caught with an illegal gun (in DC or anywhere else) and engaged in illegal activity while possessing that gun. This is the game that DC plays and they've been very successful at it.

    The strategy in presenting Parker v.s District Of Columbia is to present it in a way in which most Americans understand, ie; self defense.
     
  3. jnojr

    jnojr Member

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    If that's really going to happen, then I, for one, would prefer that we just get it out of the way. The longer we wait for a showdown over our rights, the worse off we're going to be... each generation is more brainwashed than the last. In another couple of generations, such a ruling would be accepted without much of a murmur. Semi-autos and handguns will already be banned or heavily restricted. Everything will be registered. "They" will be able to finish off liberty pretty easily.

    Right now just might be the last chance we have to stand up and say no.
     
  4. DKSuddeth

    DKSuddeth Member

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    If anyone has that bailey case, I'd sure like to read the decision please.
     
  5. Robert Crim

    Robert Crim Member

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    Benjamin v. Bailey, 662 A.2d 1226 (Conn., 1995). The footnote is dicta and would not have affected the case I would have had there had I stayed, since I fully intended to assert the privileges-and-immunities clause and a federal right to arms independent of the Second Amendment [accord In re Quarles; Presser v. Illinois (1886)]. This is the special (if limited) right I have been detailing in this thread.

    In response to Mr. Brown: Confiscation of the weapon would create standing to sue for its return -- in the D.C. courts. I had exactly that happen to me re a .30 carbine I owned a quarter century ago. Of some interest, my case in that matter was a First Amendment matter (I went to D.C. as a news reporter to interview an FBI agent re alterations in a ballistics report in the Patty Hearst case); however, the case morphed away from the firearms matter (I had bigger fish to fry at the time).

    For everyone else: Do not confuse the standing arguments here. Standing can infect a case in many ways. In Younger v. Harris, except for Harris, the plaintiffs pleaded no injury cognizable under Article III. The standing ruling from the Ninth Circuit re the Second Amendment is that, because the Second Amendment is a "collective" right, individuals who plead it do not plead a cognizable legal interest (so there is no federal question). These are not the same things.

    In my opinion, to the extent the claim be presented (and Parker does not do it), the Ninth Circuit's view is out of sync with Presser.
     
  6. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

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    I believe the comments are that the Court has avoided Second Amendment cases. Neither of the cases you cite (nor Staples) asserted Second Amendment issues.

    Looking at the citing references for Younger, I see 8 cases where lower courts declined to extend it and 90 cases where they distinguished it. Not exactly a solid ruling, especially since the Younger case involves federal injunction of state court action. D.C. isn't a state court; but a federal court, so most of the issues raised by Younger aren't even relevant here.

    Are you suggesting that a conservative court that wants a Second Amendment case is going to grant cert to a case that they know will establish bad precedent? That doesn't seem very logical to me. Maybe you could clarify that for me?

    Second, if a claim is denied on a standing basis - how does that establish bad precedent for the Second Amendment? The whole point of standing is that the actual argument on the merits is never heard.
     
  7. DKSuddeth

    DKSuddeth Member

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    I get more frustrated at the inventiveness of all the courts utilitizing 'death of a thousand cuts' in deleting the RKBA.
     
  8. glummer

    glummer Member

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    Why, yes, it does. Once you recognize that the FBI agent is a servant; that you are one of his masters; and his weapon is borne only with the masters' permission; it is entirely appropriate that you have better weapons than he does.
     
  9. glummer

    glummer Member

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    It is more complicated than that. SCOTUS had no problem turning Miranda loose; and everyone knew he was guilty as sin.
     
  10. glummer

    glummer Member

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    Robert Crim
    No, it doesn't have to be there. The powers, that might be used to INFRINGE it, have to be there. That is why it is mentioned, and they are limited. The RKBA precedes the existence of the Constitution.
     
  11. Robert Crim

    Robert Crim Member

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    Well, at least now we are getting some intelligent responses (I'll thank everyone for that).

    Good point, Bart, but not quite fair: The screw-up I had in mind was a ruling like Benjamin v. Bailey, and that definitely was not a non-merits ruling. Standing in the sense of Younger v. Harris would not go to the merits, but standing in the sense used by the Ninth Circuit appears to.

    Re Younger, remember that there were two matters determined there. Yes, the comity issue did involve federal interference with a state criminal proceeding, and as I mentioned earlier, D.C. is not a state, so perhaps you are right there (assuming the court of appeals does not get hung up in the problem of granting extraordinary relief where there appears to be an adequate remedy at law).

    But, let's not forget that only Harris even made it to the comity question -- all his co-plaintiffs were dismissed for want of standing, for not having alleged any injury (they weren't facing indictment). I'd be surprised if any of the cases you mention spoke to that.

    With regard to the cases you mention, I have not gone through all of them, so I confess to shooting somewhat in the dark here. However, the way Younger usually is distinguished is that, in First Amendment cases, where the issue often is whether any set of facts could sustain a conviction, Younger simply would not apply. In cases such as those, it is Dombrowski v. Pfister which is more apposite -- if there is no way to get a conviction, then the prosecution can be only for harassment.

    Glummer: Your argument I am sure makes sense to you and may even make sense to me; but, like I said, I didn't come for the last word but to debug a legal claim. Would your argument make any sense to a judge?

    This is a fundamental problem, and one unfortunately having little to do with the Constitution but which still can control the decision.

    Let's assume that I took my research before the supreme court and won for all of us the right to own an M-16 (that would be the ultimate militia arm). Let's assume I did such a bang-up job of it that I won the case 9-0. Now let's assume that someone not part of this discussion but still enjoying the same right gets ahold of an M-16 with some 40-round clips, and he double-tapes the clips together and takes the weapon into a shopping mall and wastes 30-60 people including Santa Claus and the kiddie in his lap. Does anyone really think that a 9-0 precedent from "nine old men" would be able to withstand the outrage?

    You're not allowed to escape this problem by saying it will never happen just because it hasn't happened so far. If nothing else, al Qaida might try a stunt like that, and I guarantee you that every judge has thought about it and knows that if such an incident were to be traced to some liberal ruling on his part, he would look like an idiot, his court would look like an idiot, and the law would look like an idiot.

    So, why look like an idiot? Why take the chance? Is it really likely that we are going to have another civil war? How little does the law have to yield on this to satisfy the minimum of interpretation? Judges just aren't likely to give you anything they don't have to on this matter. Yes, Bart, I do think we have one of the best courts to consider this matter, but it is not enough just to have a conservative court.

    If I am looking at the problem as a judge, I very much am going to ask why you should have more power to take life than someone trained both in the tactics and in the law. And I am sorry, but telling me that, according to the theory of Thomas Jefferson and a bunch of guys who lived before rapid-fire weapons even were imagined, it's all OK -- because the FBI agent is a "servant" -- just isn't going to cut it. The judge will quote you Oliver Wendell Holmes, "A page of history is worth a volume of logic." And, he is going to tell you what really so obviously is true, that taking human life is so very much a serious matter, difficult even for those like himself. Every one of these "servants" (including -- no, especially -- the judge) is under very tight controls re when they are allowed to kill. They don't have sympathy for theoretical claims.

    They are sympathetic to the Sarah Bradys of the world -- because she is not imagining that her husband got shot in the head. If a judge is going to err on this one, he wants to err on the side of caution.

    I am not a hunter; when I go into the woods, I go armed with a camera. Every gun I own is designed to take human life, some in large numbers. I look at what I have, and I have to be aware of just how it all can go wrong. And yet, I have to have it, because I once hunted those whose habit was to make it go wrong. And that really is the crux of it -- where are we going to strike the balance?

    Parker does not involve anything quite that heavy (although in some regards the issues are the same). But, there are some unique issues in Parker arising because the jurisdiction is D.C. The President is there, along with members of Congress, the Supreme Court, and all the foreign embassies. The town does have a serious crime problem compounded by lingering social and racial problems. The security problems of the district are unique, and it is going to take a very good case to convince any judge or justice to overrule local controls in place. Yes, the recent cases I mentioned have nothing to do with the Second Amendment, but they still shed light on how this conservative court thinks. In both situations, the court ruled that firearms are a matter of local control -- when you cut through all of the verbiage, that is what was said. And Parker seeks to have the court in effect reverse that, on Second Amendment grounds restricted to consideration of self-defense alone. I just don't think that's strong enough. It isn't the compelling reason why you, as a common citizen, should have more power than the FBI agent, given all the other factors on the table.

    I have to cut this off for the moment -- it's late, and I'm still sick (I've been out of work for three days) -- so I'll close by saying I still believe the case has to be augmented to incorporate the structural element. The court has indicated it will hear that -- in Gregory, in Lopez, in Printz -- and in this high an atmosphere, I think you have to follow success.
     
  12. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

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    The Ninth Circuit had to directly address the collective/individual rights distinction to reach that issue though - which is the whole point of bringing a Second Amendment case.

    You could have alleged the defense of state issue in the Ninth Circuit and it would not have changed that opinion a whit in my opinion. Reading Benjamin v. Bailey, I'm not convinced that the CT court would have been any more receptive to the argument. Admittedly, not arguing the defense of state aspect left them room to weasel word the opinion; but I don't think the court that wrote that decision was looking for a reason to go the other direction.
     
  13. glummer

    glummer Member

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    Robert
    Timothy McVeigh did worse than that with a rental truck, some fertilizer, and diesel fuel. And it generated considerable outrage. But no comparable restictions appeared anywhere. And if DC, in effect, refused every citizen ANY right to use those ingredients, AT ALL, using the same sort of laws, would any judge accept it?
     
  14. SWMAN

    SWMAN Member

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    The Courts today try and make the 2A what THEY want it to mean rather than what it was meant to mean. It's not up to the Courts to determine what is or isn't relevant in today's society, i.e., the militia. The National Guard is here today, could be gone tomorrow.
     
  15. Intune

    Intune Member

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    Really? I hope you never, ever, sit on the bench as a judge. I believe you are sorely misguided and are passing misinformation on to your students. You are even more dangerous than the upfront gun-grabbers.
     
  16. ctdonath

    ctdonath Member

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    That's exactly what the "nine old men" are there for: to protect rights and freedoms by striking down laws that step outside powers granted by the Constitution, no matter how outraged people get. Doesn't matter how hard or unpopular doing so is, if SCOTUS does not stand up for rights, the country falls down - with grave consequences.

    BTW: we HAVE faced comparable events. Columbine, Luby's, Whitman, etc. all were on that scale (maybe not quite as dramatic, but pretty close). Sure there were calls for bans, some of which made some headway, but you're still able to pick up a compact semi-auto rifle legally and, if so evilly inclined, "waste 30-60 people including Santa Claus and the kiddie in his lap". If the perp had an M16 he'd only do the evil deed marginally faster; ironically, he'd probably miss more.
     
  17. ZeSpectre

    ZeSpectre Member

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    Here Here! The last time I checked we actually live in a Constitutional Republic (regardless of what the politicians try to make us believe). That means we (are supposed to) operate via LAW and logic and not emotion and the so-called "will of the people".
     
  18. SWMAN

    SWMAN Member

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    Well, I suppose that given enough time, the courts could, rather than the Congress, for our own safety and security, eventually find an argument to ban handguns and other dangerous weapons from the untrained, ignorant, general population, such that we get to keep a single shot muzzle loader for sporting puposes only. After all, the 2A is old, outdated and related to another time when we had to worry about an oppressive Government. Besides, aren't the courts looking out for our best collective interest? :rolleyes:
     
  19. ksnecktieman

    ksnecktieman Member

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    robert? If those "nine old men" you speak of read, and understand the constitution, and support the RKBA as it is written, that M16 will lose a lot of effectiveness. By the time he gets half way through the first clip the armed citizens will be shooting him down. OR? Did you mean they chose to allow the full auto M16, and still did not allow citizens the right to carry defensive weapons?
     
  20. Robert Crim

    Robert Crim Member

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    OK, let's back up here a little bit, because there still is a lot of confusion about what is and what can be presented. First of all, I have to split this post in half, because it is so long, so you will see it as two responses.

    Of course, I am aware that the right to keep and bear arms existed, at least in some minds, prior to the Constitution. We all know that because Lexington and Concord really did happen, and all the weapons had to come from somewhere.

    And, there is a political philosophy -- you may call it Jeffersonian or libertarian or some name of your own you prefer -- which speaks of the constitutions -- both federal and state -- as power grants, all of which are limited and therefore all of which leave some residuum of rights which government cannot touch. One of the classic decisions following this line of reasoning was Lochner v. New York, which declared unconstitutional a state law limiting the hours per week bakers could contract with an employer. This law, said the Court, was a "meddlesome interference" with the rights of free men and beyond what a State properly could do.

    The problem is that no modern court follows the Lochner philosophy anymore, primarily in deference to what might be called legal epistemology and the concurrent problem of comity among the several branches of the government. Courts today will be much more "British" in the way they look at a case before them, in applying the Constitution or the constitution of a State, and they will justify that stance on several grounds:

    1) Judges swear to the same oath to uphold the Constitution as all other officers (except the President's, which is slightly different), and so their fealty to the law is neither higher nor lower than these other officers. Therefore, neither a judge nor a panel of judges can make of themselves a "superlegislature," determining from the bench what the law should be rather than what the law merely is.

    2) This latter position is supported further by the parameters of Article III jurisdiction, which prevents courts from giving advice. Federal (and most state) judges don't give advice; they render judgments; and, their opinions are only the legal reasoning which supports the judgment.

    3) To render a proper judgment -- one not particularly subject to error and thereby suspect -- the courts require that a proper case with proper parties be before it. So, at the beginning of every case, a court has to ask: Is there an injury here sufficient to present the court with an actual case or controversy -- does the court really have jurisdiction, or is it really being asked only for advice? If the latter, the case fails for want of jurisdiction, because there is nothing for the court to decide. That was the problem for the other plaintiffs in Younger v. Harris -- their complaint claimed to present an injury (in the sense that they claimed to fear prosecution for exercising the First Amendment right to teach communism in college classes), but when the court looked at the claim, it realized that all the college professor wanted was advice -- was he breaking a state law by teaching Karl Marx? The professor could have been a professor and simply looked up the answer, in the past decisions of the Supreme Court [No], but instead he joined with Harris to manufacture an injury and relitigate the claim, piggybacked to Harris' real one. (Recall that Harris is under actual indictment, so he does have a beef.) While the Court in Younger called this failure "want of standing," it really is more than that -- there was no Article III injury. See Association of Data Processors v. Camp, 397 U.S. 150 (1970). And without an injury, there is nothing to decide.

    4) Why does the Court take such a self-restricting view of such matters? Why does it not take the professor's pseudo-case and simply say what it said before, which is that criminal syndicalism laws cannot touch teaching of mere doctrine, that they can only punish actual advocacy of immediate or impending crime? There are several reasons, but again the principal one is that the judges take the same oath as the congressmen, so it simply is not their job to be ordering Congress what to do. It is a very serious matter for the Court to do that; so, the Court has to do that in a very restrictive sense -- it must have a case before it, with an actual injury claimed, and the judgment of the court must rest foursquare upon the result of a judicial comparison of the relevant treaty or law against the relevant provision or provisions of the Constitution. Because it is not the judiciary's role to make law (that's Congress' job), what the judge must do is take the law as given, assume by the Congressmen's oaths that it is valid, lay it against the Constitution, and accept the law to the extent he can accept it. Only when the two are totally incompatible does he declare the law unconstitutional. This is very rare, though not so rare as it once was; but, the more likely result will be that the judge will prune the law so that it does not overflow into restricted or prohibited areas. This is what is meant by judicial construction.

    An excellent example of this latter type of result is the rather infamous case of United States v. E.C. Knight, (1895), in which the United States tried to prosecute the Knight trust for running a sugar monopoly that controlled refinement of 95 per cent of the nation's sugar. And the case usually is found in the (liberal) history books as an example of the Court's "pro-business" bias in those days because (I'm shocked!) the United States lost! But, read the decision, and you'll see that "pro monopoly/pro-business" has nothing to do with it (what the case determined was that "interstate commerce" -- as then understood -- simply did not reach local, intrastate production of sugar -- Knight's plant was all in Pennsylvania). The Court did not declare the Sherman Anti-trust Act unconstitutional -- indeed, the same Act was used later to bust up the Harriman trust that unified the Union Pacific and Southern Pacific railroads --; it simply ruled that it does not apply to business activity occurring in a single state, because Congress has no power there. It pruned the law.

    5) Let's look at some other reasons why courts (especially federal courts) don't like to take fanciful cases. For one thing, federal judges are appointed, not elected -- they are bright fellows, but in the final analysis, they're hacks, and they know it. And there is a limit to how much respect the people will give a hack, and so (like any hack), judges want to pick their battles -- they want to decide cases which the people then will accept as decided. When that happens, the case really is final, and the call goes for the next case.

    The alternative is to decide cases such as Dred Scott or Roe v. Wade and stir up the kind of permanent hornets' nest which makes court decisions anything but permanent. Any time judges wander into areas like this, they are asking for trouble, and ever since Dred Scott, they know it. This doesn't mean that they won't render decisions in such areas -- Brown v. Board of Education is a good counter-example -- but it does mean a judge has to think very carefully about just what kind of genie he is going to let out of the bottle. The purpose of all judgments is to grant relief. If the relief the court prescribes is ineffectual or wanting -- if the Court says the Cherokees are right and Andy Jackson says, "Screw you" -- the court is only going to look silly unless the people really are of a mind to side with the Court rather than with Jackson.

    There is an old saying, attributed to the mythical Mr. Dooley, that the Supreme Court follows the election returns. While not absolutely true, and certainly not necessarily proper, it remains fundamental that a court judgment not really supported by the public won't stand as any precedent. That was the lesson of 1937 and the legal revolution within the New Deal. And that principle (plus a certain judicial skepticism re judges' own infallibility, infra) frames all modern consideration of legislation.

    6) Federal courts also don't like to kick States around (although they do it more today than they once did). This is because States do possess a residuum of sovereignty, and that means there always is a danger said sovereignty could be let loose -- what really happened to set off the civil war. As I have stated repeatedly in this thread, the Constitution was set up that way -- if the people feel oppressed by one sovereign, they have the inherent capacity to seek the security of an opposing sovereign more to their liking. So, courts try to avoid becoming involved in the sort of thing Harris asked for (federal interference in a state prosecution). It simply looks bad for a federal judge to rush into a state judge's court and tell the state judge that he, the federal judge, is so much better at this art, and that the state judge needs to be more deferential. As Queen Elizabeth once put it, "must" is not a word one uses in the presence of a prince. Or, as the Supreme Court opined, there are also comity issues attached to the "standing" question, independent of the question of actual jurisdiction, which counsel federal courts to limit their interference in standing processes part of our "indestructable union of indestructable states." Younger v. Harris, supra.

    7) There is one other commonly encountered objection involving claims of standing, and those are for cases which simply don't deserve to be in the courts. There may, indeed, be an injury, but the injury is what judges call "widespread" or "common." A typical case like this would be one involving federal taxes, where a citizen tried to enjoin federal spending because his taxes were going to fund unconstitutional action. Judges won't take these cases because they would have the effect of making every governmental decision a judicial one in which the party plaintiff might or might not be the right person to have before the court and seeking relief. Think of it: If the only injury I have to plead is that my taxes went up, or were more than they would have been otherwise, I could be in there against the federal reserve, and you all could be in there against the ATF, and others against abortion clinics, and others against the education department -- and while we're at it, there is no specific grant in the Constitution that allows us to have an air force, a space station, or an expedition to explore ozone over the South Pole. And again the judges are put in the position of trying to be Congressional baby sitters, which is not what judges do.
     
  21. Robert Crim

    Robert Crim Member

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    Let's now look at how all of this plays into a judge's evaluation of a claim asserting constitutional rights. We have seen that courts once took the Lochner position of substantive due process to advance the kind of theory of government most of us would recognize as laissez faire. In this type of interpretation, the courts are pro-active and impose an over-arching philosophical structure into the law via the processes of construction and constitutional pruning. This very much was the approach of the Court prior to 1935 -- in A.L.A. Schechter v. United States, the Court actually opined that the Constitution prohibited any kind of collectivized government -- but the problem was that what had gone wrong in the Great Depression was not well understood, and even the judges began to doubt whether they might be right. So, the approach collapsed in favor of a less-hands-on approach still seen today. In this approach, the judge says, "I don't know what the Constitution says, unless the Constitution actually says it"; so, when the judge does his job of judicial comparison at the heart of any constitutional ruling, he still assumes Congress (or the state legislator) did his job, still assumes all were true to their oaths, still then makes the comparison, but now the judge requires something more specific.
    In this sense, it is correct to refer to the rights in the constitutions as "grants," and what that means is simple:

    True sovereigns have no rights (they don't need them). When a lion kills a zebra, we don't call it a bloody, beastly murderer -- we say it is a fitter lion. The lion is sovereign; it needs no rights, has no rights, and neither does the zebra.

    With humans, it is different, because we talk of a right to life, liberty, property, &c., and to some these are God-given grants, but that is not the way courts look at them (at least not today). A court today says: "Sovereignty knows no limits save those it imposes on itself." And, within that framework, rights simply are those areas set aside from invasion by the sovereign -- read "democratic" for America -- processes. They are islands of protection, and because the democracy can, by an admittedly difficult process, repeal them, they are, indeed, grants -- areas which legislation cannot invade without risking judicial nullification.

    We've thus gone through this long-winded introduction to get to a description and classification of the foundation for the injury which will get us a hearing before a federal court -- the legal right which must be pleaded to create that case or controversy at the heart of jurisdiction. I want to stress that: It is not enough to say one is injured before one can get before a court. One must plead an injury to the zone of interests protected by the particular statute or provision. Cf. Sierra Club v. Morton, 405 U.S. 727 (1972), w/United States v. S.C.R.A.P., 412 U.S. 669 (1973). Once we understand this, we can understand why it is so hard to get a Second Amendment case before the Court. (This also reveals what we are doing wrong in terms of the pleading we are doing so far.)

    Guns can be used for all sorts of things, from defending the country to defending the person to putting food on the table to putting money in one's pocket (i.e., bank robbery). I don't think anyone here would argue that a private person had a right to keep or bear arms for the purpose of making bank robbery easier. And if anyone is of that mind, trust me: The judge is not amused.

    So, we already know that there is no absolute right to own a gun -- if you are caught robbing a bank with one, the fact it's a .45 autoloader and a militia weapon does not get you to first base. The evidence simply does not show that you are within the "zone of interests" protected by any "militia" provision.

    Let's look at hunting. No criminal problem there (unless you're caught poaching), and at least one state (I recall New Hampshire) has the right to bear arms for hunting in its constitution. But, again, this does not get you into federal court, even if you took the deer in season, because hunting is a state concern and is regulated (primarily) under state law (no fair coming back at me with the Migratory Bird Act -- I'm sick, remember?). The injury which would be pleaded here is an injury to a state right, so you have to bring that case in a state court -- the right protected is within the zone of interests of a state constitutional provision.

    The problem of self defense is a little more complex, for here the jurisdiction will be determined by where the "self-defense" occurs. If you are in Connecticut, it remains a matter of state law, pursuant to the constitutional provision (Art. I, section 15) which says, "Every citizen has the right to bear arms in defense of himself and the state." This provision is in the form of a grant (as explained above) -- if the people of Connecticut repeal it, the right goes away, and the courts of the state no longer are obliged to acknowledge it in any dimension. How do we know? Because that is what both the supreme courts of California and New Jersey said, when they upheld "assault weapon" bans, in commenting upon the absence of such a provision in those states' constitutions.

    Let's look at the grant carefully and see exactly what it says: Every citizen [you have to be a citizen of Connecticut] has the right [this is the grant] to bear [notice the "keep" isn't there] arms [?????] in defense of himself [purpose # 1] and [conjunctive!] the state [purpose # 2].

    Notice "hunting" is not on the list. That does not mean people in Connecticut cannot hunt, just that the legislature has carte blanch re whether or when to allow it.

    Now, at least in Connecticut, there really is no question re what the provision means re defense of the state -- Connecticut is one state which still has some very well defined militia statutes and even still allows private militias provided they register with the Secretary of the State and comply with other rules. So, let's look at purpose number one, which sometimes is construed in the disjunctive but which in terms of plain language exists in the conjunctive. What could be self-defense which also defends the state?

    The answer can be only "self-defense which concurrently defends the law" or "legal self defense"; but, as I've stated in this thread on several occasions, legal self-defense by its very nature is individual and targeted -- it is not possible to defend oneself legally in Connecticut with any kind of area attack.

    Hence, if one brings a right-to-arms/self-defense claim in Connecticut, certain kinds of weaponry automatically are out: Citizens of the state, for personal self-defense, may not "bear" atom bombs, ballistic missiles, combat aircraft, attack helicopters, tanks, bazookas, mortars, nuclear aircraft carriers, submarines, and the whole host of other tools of modern war which simply are not consistent with any need specifically to target the offender.

    I want to stress that we're only looking here at the right of personal self-defense and not bearing arms in defense of the state, because that was the "zone of interests" which was pleaded in the Bailey case (Bailey does not consider, in anything other than the gratis footnote, military defense).

    We can now understand how Bailey proceeds from this point. There are war weapons which do have an area character but which are not necessarily illegal to own in Connecticut. For example, although the state's "assault weapon" ban now makes illegal "un-grandfathered" selective-fire devices, true machine guns still may be possessed. The state court had to consider just what protection these devices deserved.

    Remember, again, the case is there re personal self-defense only.

    The court in Bailey used the construction/pruning power it possesses to say that it cannot know a priori whether area weapons such as machine guns or "assault rifles" or drum-fed shotguns are or are not legitimate weapons of self-defense, so what it will do is defer to the legislature on this question and assume that the legislators, who represent the popular will of the people of Connecticut, stayed true to their oaths in deciding that selective-fire weapons were not appropriate for self-defense.

    Ban upheld -- at least against a claim of right to bear for self-defense.

    Now, let's try to get the case in the military side door (we want a better opinion).

    Exactly how does one get this case in the side door and past the problematic footnote re militias being outdated by the National Guard? You cannot get it in with the Second Amendment, because that amendment, since the days of Barron v. Baltimore, has applied to the federal government only -- as I've said before, it is not a grant but a limitation only on the federal militia/commerce power. You want to take it in on provision 2 of the state grant? Well, maybe that would work for you, but I'm 56, and the maximum age for being in the militia in Connecticut is 45 (and has been for eons). There was, of course, a time when I could have claimed, as a matter of statute, that I was in the "sedentary" militia, and footnote or no footnote, I don't think the state supreme court simply could have ignored that. So, perhaps my Sporter goes in via that door; however, fair warning that there is a nasty federal case from Ohio concerning an effort by another to get an unlicensed (untaxed) machine gun recognized as a "sedentary" militia arm there, and Ohio law is particularly bad for Connecticut because Connecticut at one time owned Ohio (the Western Reserve).

    In other words, there are problems going the "defense of state" route, and some are too complicated to go into here, but suffice to say that, with a mandatory prison sentence in the offing were I to lose, this provision was not considered sufficient security for me -- I wanted more.

    Let's look at the federal right to self-defense. There must be a federal right to self-defense, because before most states were states, they were territories and had to be settled -- settled by people with guns. And, there are federal cases on self-defense -- I mentioned two of the leading ones, Beard and Brown. But, the federal right to self-defense would not be applicable in Connecticut because it existed before there was a United States, and because once any territory becomes a State, it assumes the general police power per the Tenth Amendment.

    D.C., of course, is not a State, so federal self-defense still can be pleaded there; but, the principal problem as I see it is that there is no explicit grant re defense of self in the Constitution, and as I've mentioned, the district does have security problems which are unique. So, the courts are going to be very deferential to whatever is the legislative rule in place. Pleading an unenumerated right under federal common law and the Ninth Amendment also is weak -- the right is to self-defense, not to ownership of a gun, and so, once again, in terms of how a majority of the Court might vote, we run into the Bailey problem, but this time in spades. Connecticut's supreme court made an exception regarding a law which would ban "all" guns, because it previously has construed "arms" [supra] as including "firearms" (see how a previous precedent sometimes can save your ass?). But, where in the federal constitution is that? The Second Amendment speaks only of one purpose, that being the militia and its role in securing a free state, so it is a very slender reed Parker relies on to go into the high court solely with a case pleading only self-defense.

    I don't like it; it is risking a Bailey double-whammy.

    For, if the legislature (Congress or the D.C. delegate) is not confined by previous precedent from excluding "firearms" from "arms" appropriate to self-defense, what exactly is to stop them from doing that? In that scenario, the Supreme Court throws up its arms, declares that it is not qualified to prejudge or second guess the security decisions of so special a local jurisdiction, and then it can cite the two federal laws it recently threw out, for being totally inconsistent with the Constitution, as support for the proposition that firearms regulation (other than taxation) is totally a matter for local control.

    Ban upheld -- at least against a claim of right to bear for self-defense. And we've lost the case, with a potentially disastrous precedent in place (depending on how wordy the opinion is).

    There is a safer way:

    Get your foot in the door first via the privileges-and-immunities clause of the Fourteenth Amendment. Recall this provision is very rarely litigated, because so few cases or controversies come within its restricted zone of interests. That is because, in the Slaughterhouse Cases, 83 U.S. 36 (1873), the Supreme Court limited application of the clause solely to rights attendant to federal citizenship and denied for the moment any incorporation of rights to be imposed on the states (that did not come until after the Seventeenth Amendment was claimed to have been ratified).

    Read the case and its progeny carefully! What are these federal rights? The specific wording of Slaughterhouse, Cruikshank, In re Quarels, and Presser v. Illinois, refers to the structural rights of the Constitution as being among them, and Presser specifically refers to a federal right to keep and bear arms which is recognized to be independent of the Second Amendment and would still exist even were the amendment repealed!

    In short, unlike the Second Amendment, this right works against state action.

    But, read Presser very carefully -- because Presser lost. He was there to plead for a private militia in a State (Illinois) which forbade them, and the Court correctly recognized that interference with State regulation here well could allow insulation of terrorist groups operating under cover of the banner of a private militia.

    Trust me: The current Court will hear that argument loud and clear in the wake of 9/11.

    So, what has to be argued? To satisfy this constituency, it has to be a private right. Presser can be. It has to be structural -- it has to exist because the Constitution exists, and ideally it is so deeply imbedded in the Constitution that all of the Sarah Bradys in the universe can never get it out. Presser is. But, anything which is that deep in the Constitution will be restricted -- it is going to relate only to an individual's concurrent relationship, in terms of his citizenship, to the federal and his state government. It is not a license to roam city streets as a private army. Presser. You have to go through the state or federal apparatus to make the right work, but the individual component is clear, because only individuals can make the choice required here -- the choice which must be made cannot be a choice amenable to groups (or we fall into the "collective right" trap of the Ninth Circuit).

    Where do we find such a right in history? In our old buddy, Luther Martin, and his complaint (in the Genuine Information) that concurrent treason clauses at the state and national level can force upon an affected citizen the somewhat Hobson's choice of which sovereignty to support were the two to get into a fight. Martin, recall, complained that citizens of Maryland who supported Maryland would become traitors against the United States, and citizens of Maryland who supported the United States would become traitors against Maryland; and, Alexander Hamilton replied, in the Federalist, # 28, that such was exactly what was needed for the Palladium of the Constitution -- that individual, armed citizens -- the people in their military capacity -- ultimately would determine what the law would be, by the particular loyalty they would profess, upon their lives, their fortunes, and their sacred honor.

    Who's swearing the oath now?

    Does such a right imply anything? Look at the amendment: There is a right to keep, and a right to bear. It would be possible to make the right to keep very broad provided the right to bear was very narrow (remember: We don't want people shooting Santa Claus). Also, the suggestion that all us good guys stop the carnage by going around armed with our own choppers is boffo -- this is the United States of America, not Baghdad or Beirut. The Court never would buy that, so don't even try to sell it. The Court is well familiar, from its cases on the First Amendment, with so-called "time and place" restrictions. A duplicate jurisprudence is within reason here. The important thing to remember is that not even this Court is going to allow unsupervised handling of this kind of firepower, nor would the people of the country support that. And, if you ask for too much, you get nothing.
     
  22. gc70

    gc70 Member

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    Robert Crim,

    Maybe you should find a plaintiff and file a suit in DC; a bit of pro bono work wouldn't be a bad thing.
     
  23. ctdonath

    ctdonath Member

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    Bingo! The winning scenario!

    SCOTUS _must_ overturn 922(o) and allow modern machineguns, if only because Congress leaves the "unorganized militia" (which, being formally recognized, cannot be dismissed from discussion) to arm itself via individuals, and the 2nd Amendment clearly states Congress cannot infringe on militia members' right to do so (and with the M16 being the ubiquitous "standard weapon of the soldier", that at minimum cannot be denied).

    M16s thus being available, it is possible (nay, inevitable) that _some_ twit will turn his against other citizens. An airweight .38 J-frame, while not what one would consider a "militia weapon", provides arguably adequate stopping power (one well-placed shot with 5 followups) against such an attacker. 'tis absurd to argue one could legally carry an M16 or M1911 everywhere, but not the lesser .38 J-frame for use against an enemy/criminal with an M16 - especially as the "military" weapons are simply too much for some people. Shall we require a lower boundary of an M1911, even for those who cannot handle it, but could handle something smaller?
     
  24. Robert Crim

    Robert Crim Member

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    gc: I'm an historian, not a lawyer (no shingle). I did have my own case there a quarter century ago, but like I said, it morphed away from the weapons issue.
     
  25. Gifted

    Gifted Member

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    As to being a historian though, you could file a friend of the court brief or whatever it's called. I suppose I should bookmark this for future reference.

    And no one answered my question a few pages back, how long can we expect to wait for a decision? I know it'll be a while(doesn't seem like it would take months, even with going through the books but anyway), but those of us that don't follow such things very closely, don't really know how long these things take.
     
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