Apellee's brief in Parker v. District of Columbia

[hugh damright]

I think he meant before the 14th Amendment "incorporation" doctrine. You knew what he meant. Here, in case you did not.

I said that the SCOTUS has ruled, since the 14th took effect, that the 2nd does not limit the States. I was challenged to produce such a case, and I produced three. Are you telling me that when I said the SCOTUS has ruled on it after the 14th took effect, that I really meant to say something else? I think I know what I meant!

And then you have the conceit to point me off to the incorporation doctrine, as if I don't know what it is. I think I understand it much better than you ever will.

 

[beerslurpy]

Since you know so much, answer my original question about why the 2nd doesnt apply to Parker v DC.

 

[hugh damright]

Since you know so much, answer my original question about why the 2nd doesnt apply to Parker v DC.

The Second Amendment only limits the federal government, and the DC laws are not federal laws.

Regardless of the Second Amendment, there is some federal protection as it relates to militia, but there is no federal protection of individual arms for personal defense.

 

[beerslurpy]

Lack of support is an error of omission, not of choice. The supreme court has never decided a 2nd amendment case since the incorporation doctrine was invented. The same supreme court that decided the 2nd didnt apply to state governments said the same about every other bill of rights provision as well as all common law rights. Much has changed since then.

1791-1860s: 2nd amendment applies to the states
1872-1947: bor doesnt apply against the states, privileges and immunities a dead letter (slaughterhouse cases)
1950s onward: selective incorporation through due process, no word on the 2nd

This is very different from what you are claiming.

 

[hugh damright]

1791-1860s: 2nd amendment applies to the states

That is incorrect.

A few pages back, the originator/owner of this thread said:

If you're claiming the 2A was meant to apply as a restriction on the states as well, you're more than a day late and a dollar short.

I keep telling you, it is not up for debate, it is a FACT under constitutional law that the 2nd did NOT originally limit the States ... Not from 1791 to 1860, not prior to 1803, not in a box, not with a fox.

 

[RealGun]

I keep telling you, it is not up for debate, it is a FACT under constitutional law that the 2nd did NOT originally limit the States ... Not from 1791 to 1860, not prior to 1803, not in a box, not with a fox.

You seem to be an advocate of "government by judiciary", the Courts assuming the authority to declare that laws don't mean what they say, mean more than they say, or can only be narrowly applied as a way of avoiding their real intent and intended consequences.

 

[ksnecktieman]

If the supreme court of this land agrees with u dam right, I will rent me a big truck, and be making a pass through all the states that forbid firearms ownership, and paying 20$ each for any firearms.... No, I guess not, if the second does not count, then the one about seizing property without payment will not count either, so they will be confiscated and destroyed, I suppose it could be a while before we find out about these laws, because it will mean the first amendment is without meaning at the state level too. I wonder if California will quit having elections now too?

Sorry, the Bill of Rights is a "package deal", all or none. Trying to pick some we want, and some we don't is a joke.

 

[Malum Prohibitum]

Hugh?

I said that the SCOTUS has ruled, since the 14th took effect, that the 2nd does not limit the States. I was challenged to produce such a case, and I produced three. Are you telling me that when I said the SCOTUS has ruled on it after the 14th took effect, that I really meant to say something else? I think I know what I meant!

And then you have the conceit to point me off to the incorporation doctrine, as if I don't know what it is. I think I understand it much better than you ever will.

Conceit?

Well, I don't mean to be condescending (which means to talk down to) . . .

 

[Ieyasu]

Hugh wrote:

Miller v Texas (1894): "it is well settled that the restrictions of these [2nd & 4th] amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts."

However, from the opinion: "And if the Fourteenth Amendment limited the power of the States as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court."

Beerslurpy wrote:

If the right only activates when you need it to fulfill a legal obligation then it isnt really a right, since such a legal obligation ("you must show up on this day with this equipment and do this drill") would imbue someone with the authority necessary to fulfill it (the obligation, in its demands, gives you legal authority to gather the equipment and bring it with you that day). And this is what the "civic duty" model seems to claim.

One can volunteer for militia duty.

Regardless, I don't understand why so many pro-gunners insist that the National Guard isn't a militia. Even Eugene Volokh agrees the NG when in the service of the states functions as a militia. I think this just plays into the hands of the anti-clowns that insist the 2A is obsolete because we don't have a militia. Well we do, so that immediately tosses that argument. I know you guys don't like the fact that civilians are generally not allowed to keep military arms, but that is a separate issue. Remember, regardless of how the militia was armed, it was still the right of the people to keep their own arms (after all, federally supplied arms could be withdrawn). So, I believe claiming the NG is a militia actually strengthens our 2A arguments. (Yeah, I know the states are complicit in civilian disarmament.)

The second amendment, as written and referred to by every source contemporary to the founders obviously confers a far greater legal authority upon the average citizen.

I'd sure like to see that "evidence" Cornell is citing against Tucker. I guess nobody hanging around this thread lives near Williamsburgh, VA (William & Mary Law School)???

 

[Ieyasu]

ctdonath wrote:

We need to stop falling into the trap of trying to explain the obvious to those who refuse to understand..

To repeat (it's been a long thread), I'm not bringing this stuff up to throw back at blind-partisans. I've seen neutral folks pursuaded by the likes of Gary Wills. Some of these folks can be brought back to a neutral position, at least, by refuting those papers with facts not pronouncements, not opinions, and not beliefs.

We need to start saying: it says what it says, and was written by those to whom the plain meaning could not possibly mean anything else - any who attempt to instill plainly contrary meaning are, by the Constitution's own words, treasonous and should be dealt with as prescribed thereby.

And then you will have lost those that might have been "saved."

 

[RealGun]

Regardless, I don't understand why so many pro-gunners insist that the National Guard isn't a militia.

The legal eagles would have no problem arguing that the NG was neither a militia nor a "standing army", if it suited their purposes.

 

[Ieyasu]

The legal eagles would have no problem arguing that the NG was neither a militia nor a "standing army", if it suited their purposes.

Fine. They'd look silly trying:

The National Guard is the modern Militia reserved to the States by Art. I. 8, cl. 15, 16, of the Constitution.

MARYLAND v. U.S. (1965) (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=381&invol=41)

In other words we look sillier and more ignorant arguing that it isn't.

 

[glummer]

Ieyasu said:

Many words used in different contexts or with different modifiers take on different meanings, but they normally do not assume all possible meanings of the word in a single usage

A. They DO normally take all similar, or related meanings, in the same usage. "Bear arms" can obviously mean the SAME thing referring to both militia applications, and civilian uses; I don't understand why you assume they must be different.
B. Your statement applies to other words, as well. Like, "the right of the people". Used 3 times, within a span of 81 words, in the same document, written by the same authors. Any claim that the meanings are substantially different is wrong, to the point of dishonesty

From all the stuff I've read so far, it seems the intent of the framers was that bearing arms meant serving in the militia

No. "Serving in the militia" necessarily means "bearing arms", but there is no obvious reason to assume the reverse is true.
If A is fundamental to understanding B through Z, and you want to discuss M, you wll have to mention A; but that does not mean everything but M disappears.

Some of these folks can be brought back to a neutral position, at least, by refuting those papers with facts not pronouncements, not opinions, and not beliefs.

And the clearest relevant fact here is that the phrase "the right of the people " is used in the BOR 3 times, within a span of 81 words, and that fact MUST be accounted for by any honest person claiming to understand the meaning of the Amendments. When we fail to DEMAND such an accounting, we are being suckered into abondoning our strongest position. We have to be careful, in a thread like this, not to get mired so deep in a swamp of chop-logic sophistry, that we lose sight of our high ground.

the right of the people peaceably to assemble, and to petition the government for a redress of grievances. 18
Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. 26
Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. 32
Amendment IV
The right of the people 5

 

[RealGun]

There are many precedents in the law that collectively form a conspiracy against common sense, gaming legislation as much as abiding by its intent. That's why respect for the rule of law and those who practice it is rather tenuous.

 

[Bartholomew Roberts]

The legal eagles would have no problem arguing that the NG was neither a militia nor a "standing army", if it suited their purposes.

Fine. They'd look silly trying:

Quote:
The National Guard is the modern Militia reserved to the States by Art. I. 8, cl. 15, 16, of the Constitution.

MARYLAND v. U.S. (1965) (http://caselaw.lp.findlaw.com/script...l=381&invol=41)

I don't think it is the case that someone arguing that the National Guard is not the militia would necessarily look silly trying. While it goes against precedent, you can point to other more recent precedent arguing against it such as Perpich v. United States:

Using Perpich, you can look at the current situation of the law concerning the militia:

1. The National Guard is authorized by federal legislation and supported entirely by federal funds.
2. Gubernatorial consent is not necessary for Congress to call NG troops into active duty training
3. Militia clause cannot constrain Congress' authority to train National Guard as it sees fit when Guard is operating pursuant to army clause
4. Under dual enlistment system, National Guard members lose their state status when called to active federal duty, and if that duty is training mission, then training is performed by Army; during such periods, second Militia Clause is no longer applicable.
5. Directing the specific training of NG troops over the objections of governor's is well within the perogative of Congress under Perpich
6. Congressional statute allows states to form a militia that is exempt from being drafted into federal service

When you add Perpich into the equation, I don't know that the conclusion that the National Guard is the militia is so clear. It appears to be different in scope than what the Founders intended as the state has practically no power over the National Guard and the NG can be federalized and taken away from state control even for training. Second, if the NG is the modern militia, then how does the separate state militia authorized by statute fit into the mix?

 

[hugh damright]

You seem to be an advocate of "government by judiciary", the Courts assuming the authority to declare that laws don't mean what they say, mean more than they say, or can only be narrowly applied as a way of avoiding their real intent and intended consequences.

I was saying that it is a FACT under constitutional law that the 2nd did NOT originally limit the States, and you reply that I seem to be an advocate of government by judiciary. Nothing could be further from the truth. The USBOR was not intended to limit the States ... this is not some false construction forced upon us by the SCOTUS.

If the supreme court of this land agrees with u dam right, I will rent me a big truck, and be making a pass through all the states that forbid firearms ownership ...

The SCOTUS has ruled over and over and over that the Second Amendment does not limit the States. So maybe you better fill your tank up and begin your drive through all the States that forbid firearms ownership. But of course there are no such States. And the SCOTUS has ruled that the 2nd does not limit the States, but that regardless of the 2nd, no State can ban guns

 

[hugh damright]

It occurs to me that, although the USBOR was not intended to limit the States, it was applied to the Territories until they could become States and establish their own BOR. So perhaps there is an argument that the USBOR applies to DC in the same way that it applied to the Territories.

 

[DKSuddeth]

The USBOR was not intended to limit the States ... this is not some false construction forced upon us by the SCOTUS.

Not to argue too vehemently with you, but that is patently false. The BoR is not some list of things that the federal government can't infringe, it is a short and incomplete list of inalienable rights that belong to the people. No government body, federal, state, or local are allowed to infringe upon them and this would include the second amendment.

SCOTUS, as well as nearly all federal and district courts, have willfully ignored this fact and have relied upon 'precedent' to continue to enforce THEIR flavor of constitutional law and limits.

 

[RealGun]

The SCOTUS has ruled over and over and over that the Second Amendment does not limit the States. So maybe you better fill your tank up and begin your drive through all the States that forbid firearms ownership. But of course there are no such States. And the SCOTUS has ruled that the 2nd does not limit the States, but that regardless of the 2nd, no State can ban guns

I am not accepting all this dogma without some cites, and don't forget to mention in which century the ruling occurred and whether it was before or after the 14th Amendment was in effect, i.e. relative to the Civil War.

What makes your arguments seem ludicrous, although perhaps an accurate portrayal of current legal interpretation, is that the SCOTUS apparently has no problem finding jurisdiction and protecting freedom of speech against any and all threats.

 

[beerslurpy]

Hugh is basically trying to spin a lack of post-incorporation precedent into a precedent that doesnt actually exist.

Just because the supreme court is silent in the face of government action that clearly violates the 2nd doesnt mean that those protections cease to exist. Constitutional boundaries arent subject to the kind of judicial adverse possession that Hugh seems to be asserting.

The founders and several generations after them (up to the civil war and emancipation) had absolutely no doubt that they had a nationally protected right to keep and bear arms, and that this right was beyond the reach of any government to usurp.

The post-reconstruction precedents are muddled by a 70 year effort by the south to maintain the status quo ante and a judiciary that was largely hostile to the role of the federal government created in the 14th amendment. But we have moved beyond that era into one where the 14th amendment DOES embody the bill of rights. True, they havent gotten around to applying it to the entire BOR, but there is no indication that the principles which allow incorporation of the 1st amendment do not also command incorporation of the 2nd.

 

[hugh damright]

The BoR is not some list of things that the federal government can't infringe, it is a short and incomplete list of inalienable rights that belong to the people. No government body, federal, state, or local are allowed to infringe upon them and this would include the second amendment.

I believe that a fundamental principle of constitutionalism is that a constitution frames a government and a BOR limits that government. This is what some of y'all deny, and in doing so you deny constitutionalism ... you want a Constitution to frame a government and then have a BOR which limits other governments framed by other Constitutions. Well that ain't how constitutionalism works.

And I believe that a fundamental principle of limited federal government is that it is a compact between sovereign States. If the US Constitution did not frame a limited federal government, but instead framed the State of America, then of course the USBOR would apply throughout the State of America... I think this is the view that some of y'all have, and it defies limited federal government.

I am not accepting all this dogma without some cites, and don't forget to mention in which century the ruling occurred and whether it was before or after the 14th Amendment

US v Cruikshank, Presser v Illinois, Miller v Texas ... all after the 14th. How many times do we have to cover this same ground folks? The SCOTUS has ruled over and over and over again, since the 14th was forced upon us at the point of a bayonet, that the Second Amendment does not limit the States. Here's some Presser v Illinois:

"The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. [116 U.S. 252, 102] 139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the constitution of the United States.' See, also, Barron v. Baltimore, 7 Pet. 243; Fox v. State, 5 How. 410; Twitchell v. Com., 7 Wall. 321, 327; Jackson v. Wood, 2 Cow. 819;Com. v. Purchase, 2 Pick. 521; U. S. v. Cruikshank, 1 Woods, 308; North Carolina v. Newsom, 5 Ired. 250; Andrews v. State, 3 Heisk. 165; Fife v. State, 31 Ark. 455.

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."

The founders and several generations after them (up to the civil war and emancipation) had absolutely no doubt that they had a nationally protected right to keep and bear arms

We do have a nationally protected RKBA, as it relates to militia, regardless of the Second Amendment. But if you are trying to say that the Founders and several generations after them had absolutely no doubt that the USBOR limited the States, then you need to give it up because that view is simply dead and it needs to lie down.

 

[RealGun]

The SCOTUS has ruled over and over and over again, since the 14th was forced upon us at the point of a bayonet, that the Second Amendment does not limit the States. Here's some Presser v Illinois:

Did any of those cases argue for invoking the 14A? My understanding is that the force of the 14A has neither been granted nor denied to the 2A.

 

[RealGun]

since the 14th was forced upon us at the point of a bayonet,

Yeh, yeh...we're aware of your Confederate baseline.

 

[DKSuddeth]

I believe that a fundamental principle of constitutionalism is that a constitution frames a government and a BOR limits that government. This is what some of y'all deny, and in doing so you deny constitutionalism ... you want a Constitution to frame a government and then have a BOR which limits other governments framed by other Constitutions. Well that ain't how constitutionalism works.

now this is where you lose me. the US constitution frames the central governments powers. thats it. the BoR is a concession to the anti-federalists that specifically guarantees the individual rights to all free men, that shall not be infringed upon. Nowhere does it say that these rights are given by the state or that the state governments have the power to infringe upon those rights. It does say that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." It also says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Now, I take this to mean that all government power is derived by the consent of governed and that no amount of consent is to be used to intrude upon the rights of those governed as evidenced by the 5th amendment, that no person shall be denied life, libery, or property without due process.

 

[hugh damright]

Yeh, yeh...we're aware of your Confederate baseline.

My baseline is rule of law as opposed to rule of bayonet. It is telling that you call that a Confederate point of view. I think you are right about that ... and it is the yankee point of view which wants to force a vision of "rights" on everyone at the point of a bayonet, or by legislation from the bench, or by hook or by crook.

Realgun ... I think that my first day here on this forum I warned you that if you couldn't control yourself then I would put you on my ignore list. I would not have posted only to say "yeah yeah, realgun, we're aware of your yankee bias". By the way, you ARE a yankee aren't you?