DC Brief Released!

[sailortoo]

"Practical" I understand, but I sure like the sound of "... in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying this constitutional provision in question out of view, prohibit the people from keeping and bearng arms, so as to deprive the United States ..." Presser v. Illinois. It just has a "definite" statement sound to it.
sailortoo
Semper Paratus (also)

 

[gc70]

by publius:
It worries me a bit that the Heller decision now before the Supreme Court spoke of guns which are "lineal descendants" of militia weapons of old.

I see the "lineal descendants" language as an effort by the Appeals Court to provide convenient cover to SCOTUS with respect to the scope of "arms" in the Second Amendment. For instance, pistols, rifles, and shot guns would logically be covered, but NBC weaponry would not be. Once the extreme end of the discussion (private nukes) is cut off, 2A becomes more palatable for general consumption.

 

[Jim March]

Yeah, well just what is the "linear descendant" of a fully armed battleship?

Remember, Congress has the ability to issue "letters of Marque".

Things that make you go "hmmmm"...or your eyes light up .

 

[SWMAN]

I don't get it! So what if the 2A were created to protect the states from the Federal Government sending a standing army against it, (U.S. Civil War anyone?), organized gangs of criminals, foreign army, etc. The well regulated militia is to consist of armed citizens with their individual firearms to protect the state (community) from harm. Just because Federal law has changed over the years (National Guard, local police departments) doesn't change the meaning or scope of the 2A.

 

[kurtmax]

Once the extreme end of the discussion (private nukes) is cut off...

Yeah but it's not really that extreme. I'd like to see anyone who could afford, or even obtain a nuke... I'm also not afraid of Bill Gates leveling cities. (Although that would be really cool )

Back on topic: I'd say all this speculation about what the SCOTUS is going to do is pointless. We don't know what is going to happen until it happens.

 

[romma]

1) The Second Amendment Protects Only Militia-Related Firearm Rights.

My pistol is very Militia useful, so I can fight my way to my rifle..

And that is serious! I don't want to tote a rifle around all day, but if we were to have all heck break loose in a minutes notice (Ala Red Dawn), it only makes sense.

Why do some people think you have only the right to life, liberty and self-defense only inside your home anyway?

Of course others don't even believe in self-defense even inside your home or anywhere else...

 

[woerm]

incorporation?

re: incorporation

I had this discussion w/ a liberal prof about 20+ yrs ago

but here goes

incorporation is bs.

constitution ratified some dislike it so much they demand specific limits on gov't

presumably federal.

amendments proposed, ratified by the states note the states said 'hey these are the basic limits of gov't that we agree are necessary.

hold that thought it is now 1791

remember that there were state sponsored and tax supported churches up into the 1830's (Mass. comes to mind)

local state constitutions start stripping blacks of access to firearms almost as soon as the Slave trade(importation of new African, generally, slaves) becomes illegal. Many states in the south essentially ban free blacks from residency or they (free blacks) will be sold back into slavery. That wasn't just a throwaway line in Roots, Chicken George had to get out of the State in x days or be sold at auction.

at the same time most states are generally restricting gov't powers on the basic template of the US constitution (except for seriously mistreating non whites and females)

Then you have Baron.

That was what created the state leverage to abuse 'suspect' residents

see the Black Codes etc even after the 13th Amendment was passed,

the 14th was set up as 'hey all gov't at all levels must function in a consistent, sane and common basis nation wide' and it passed.

so now every one is subject to federal protection of all basic civil rights

it is IIRC 1867

Cruikshank (1876)

says 'nope, wrong feds can't tell you states anything'

oh, remember the same corrupt court said in effect in
Bradwell v. State of Illinois

women, although human, were not in effect 'persons' and did not in effect have 'civil, enforceable, rights'

now how does anyone argue that after the 14th amendment passed states were not subject to respecting the basic constitutional rights of all persons

well having a corrupt court sure helps especially when they draft circular and unreasoned bs and call it 'precedent'

when a court ignores written charter (US Constitution), Legislation (Civil Rights Acts) and eviscerates the civil rights of everyone what do you have

well take a long look around what you have is gov't and courts that regularly do not operate in their chartered manner.

incorporation is a bs argument, it is insane to say that the limits on the Main gov't do not apply to its lower constituent elements, states are basically administrative jurisdictions. It should be clear that what ever limits apply at the top also apply to the lower levels as well.

r

 

[Sam Adams]

From the DC brief:

Quote:
Because respondent does not assert a right to keep or bear arms in connection with militia duties, he has no Second Amendment claim.

Which leaves me wondering, why didn't the Court in the 1930's just tell Miller to go away because he was not involved in any militia? If their reasoning is correct, the Miller case should never have been heard.

THERE is the deep, dark secret that the gun-grabbing tyrants don't want you to know - that the Supreme Court decided a 2nd Amendment case on the merits. It would have been incredibly easy of the Court to say, "Cert. denied, plaintiff lacks standing." in order to dispose of Miller, BUT IT DIDN'T DO THIS!! It DID decide on the merits (in a very flawed manner, IMHO), thereby stating by implication that the 2nd DOES, INDEED, protect an individual right...and the rest of the case was about deciding which guns were covered by that right and thereby protected by the 2nd. Of course, we all know that only guns which, essentially, served the purpose of the Militia were ruled to be so protected.

If Heller ends up explicitly protecting the individual right, then it'd be interesting to see a challenge to the '86 FOPA ban on the registration of new full autos, both using Heller alone, and using Heller in combination with Miller. IOW, I want to see someone who's been denied permission to buy a post-'86 M16, M4, M249, etc. file a brief with the Court about 12 hours after Heller comes down on our side. Maybe we'll even see some smart Congresscritters introduce a repeal of 922(o), in view of the fact that the law will then be completely contrary to the law.

 

[rdhood]

Back on topic: I'd say all this speculation about what the SCOTUS is going to do is pointless. We don't know what is going to happen until it happens.

By that reasoning... talk of any future event that is in question ( presidential races, the weather, the Superbowl) are similarly pointless. Since talking of the past is pointless (it's already happened... what's to talk about) and talk of the future is pointless, then the only thing to talk about is what is happening now. Whoops, now is now past, so let's don't talk about that either.

Seriously... if you believe it is pointless, don't read it.

 

[Megistopoda]

IOW, I want to see someone who's been denied permission to buy a post-'86 M16, M4, M249, etc. file a brief with the Court about 12 hours after Heller comes down on our side. Maybe we'll even see some smart Congresscritters introduce a repeal of 922(o), in view of the fact that the law will then be completely contrary to the law.

I know a veteran XX state police officer who intends to do just that...

 

[woerm]

immediate challenge to 922(o)

Megistopoda,

re Leo/Veteran challenge

I plan a similar tack in here in TX as the 5th short circuit already view 922(o) as unconstitutional

see U.S. v. Bownds, 860 F. Supp 336 (S.D. Miss. 1994)

snicker/smirk

hello US Model 1918 .30 in say .308 come to pappa

hope the atf dudes can type fast.

r

fyi TX state Militia ages up to 65 thank you very much got to properly train them wippersnapers.

 

[woerm]

TX sillines redux

Here in TX you have to have the stupid NFA tax stamp to possess an NFA weapon unlike some enlighten domains elsewhere.

the KKK really screwed up our Statues trying to disarm all the 'undesireables' in the 20's and 30's.

If you have a strong stomach read the list of 'restricted weapons' in TX statues

r

 

[Brad Johnson]

Here in TX you have to have the stupid NFA tax stamp to possess an NFA weapon unlike some enlighten domains elsewhere.

Since when did that become an exclusively Texas provision?

If you have a strong stomach read the list of 'restricted weapons' in TX statues

Texas has no restrictions on ownership or weapon type other than those spelled out in federal law.

Brad

(By the way, it's statutes, not statues.)

 

[Sam Adams]

Here in TX you have to have the stupid NFA tax stamp to possess an NFA weapon unlike some enlighten domains elsewhere.

I'd like to know where you don't need the NFA tax stamp to possess an NFA weapon? The NFA is a federal statute, and while I don't like it at all (it pre-supposes that you need to ask permission to own a gun that many of our grandfathers could've bought without such permission, tax stamp, and LEO sign-off), it IS the law right now and WILL be enforced.

What I'm looking for is for the ban on post-'86 full autos to be repealed, so that millions can be produced and sold, along with spare parts, so that the price will be affordable for millions of people. There are, BTW, ways around the LEO sign-off, starting with forming a corporation and having the corp. own the gun.

The best result of many years of litigation would be, of course, a full repeal of the NFA and the '68 GCA. I'm not going to hold my breath, but I will for a repeal of 922(o) - it SHOULD happen fairly quickly after a successful result in Heller.

 

[Kharn]

Sam Adams:
He means that it's a state requirement to have the NFA stamp as well, not just federal. If the NFA went away overnight, there would be no way to get the stamp thus the weapons would be illegal unless the state law was changed. I know multiple other states are the same way, Maryland even requires a $10/yr fee be paid on any MGs.

Kharn

 

[ConstitutionCowboy]

My $495.00

Notice how DC's lawyers(herein after referred to as "They" or "they") keep saying the 2A doesn't protect a right to gun ownership for private uses? They are right. The 2A prohibits government to infringe upon the right of the people that existed prior to the Articles of Confederation and Perpetual Union, the Constitution for the United States of America, and the "Bill of Rights", to keep and bear arms. The 2A doesn't protect any uses at all, let alone private uses. Just "Keep" and "Bear".


"A well regulated militia, being necessary to the security of a free State," is parenthetical. It can be separated and made into a complete sentence on its own. It is not dependent upon, "The right of the people...". It says, "A well regulated militia is necessary to the security of a free state." That was made necessary by Article I, Section 8, Clauses 15 and 16. For all intents and purposes, the Second Amendment says, "Because we must rely upon the Militia(being necessary) for our security, the right to keep and bear arms shall not be infringed." The Constitution made us reliant on the militia. It limits the Army to no more than two year funding(Article I, Section 8, Clause 12). Congress has power to provide and maintain a Navy(Article I, Section 8, Clause 13). It isn't commanded to do so. Congress isn't commanded to raise and support armies. That is the main reason that a well regulated militia is necessary to our security. That is the main reason our right to keep and bear arms should not be infringed. That IS commanded by the Constitution by the Second Amendment ratified thereto. "Use" be damned!

Notice how they say only the 2A has such a clause(the parenthetical phrase, "A well regulated Militia, being necessary to a free State,") in the Bill of Rights? How convenient to their cause that they don't mention the parenthetical phrase elsewhere in the Constitution of which the "Bill of Rights" is an integral part. It's in Article I, Section 8, Clause 8. The use of a parenthetical phrase is not unique to the Second Amendment. They are obviously being devious and disingenuous. That speaks volumes about the cause they support. If they must mislead, they must be headed in the wrong direction - taking us to a place we were never meant to go.

Oh, and they LIE! In their brief they say, on Page 21, ...

That understanding is also consistent with the Militia Clauses in the body of the Constitution, Art. I, § 8, cls.15-16. Clause 15 allows Congress to call forth the militia into federal service, while Clause 16 makes clear that the federal government shall provide for “organizing, arming [as in “bear Arms”], and disciplining, the Militia [so that they will be well-regulated].” ...​

See the word "shall" I highlighted in bold? Article I, Section 8, Clause 16, neither says nor implies any such thing. Congress is granted power “to provide for organizing, arming, and disciplining, the Militia, ... but does not say it shall organize, arm, and discipline the militia.

Another good example of a lie they perpetrate is right after the one I just pointed out above. To wit:

The history discussed next confirms that reading. The Bill of Rights limited the federal government to protect both individual liberty and states’ rights.​

The "Bill of Rights" protects individual freedoms and rights, and powers of the several states, not any supposed states' rights. States do not have rights. State governments have powers granted to them derived from the rights of the people and granted to the government of the state by the people - same as We the People granted certain limited powers to those who govern the Union.

I need not waste any more of my time and your time. This brief is replete with misnomers, misdirection, falsehoods, and heaven knows what else. If the Supreme Court sides with the petitioners in this case, DC v. Heller, there will be no doubt in my mind where the majority of the Court wishes to take us - right into the hands of the next ambitious tyrant or dictator or oligarchy that comes along.

Woody

"Impeachment is the Right of the People, vested in the powers granted to Congress, to preserve or restore Justice and preserve the Constitution of the United States. Those vested with power shall neither deprive the People the means, nor compel such recourse." B.E.Wood

Seems to me, there has been a lot of compelling going on!

 

[woerm]

NFA stamps act n to the x

+1 for Kharn

Sam Adams:
He means that it's a state requirement to have the NFA stamp as well, not just federal. If the NFA went away overnight, there would be no way to get the stamp thus the weapons would be illegal unless the state law was changed. I know multiple other states are the same way, Maryland even requires a $10/yr fee be paid on any MGs.

Kharn

even if the NFA is voided tomorrow It would be about 2 to 4 years of lawsuits to clean up Texas list of weapons that will get you arrested just for possession

that's the KKK's gift to TX that just keeps on giving

most all of sect 46 IIRC needs to be repealed *** is the state doing telling anyone what sort of weapons they are 'allowed' to carry?

yes I am talking to my misreptiles here in TX trying to restore some level of sanity of the TX Statutes

geeze this crud was laid on by bigots to disarm folks they wanted dead.
It is long past time for the whole 'you can't have x or you are arrested' bs to go away.

r

 

[TexasRifleman]

even if the NFA is voided tomorrow It would be about 2 to 4 years of lawsuits to clean up Texas list of weapons that will get you arrested just for possession

Actually the Texas Penal Code doesn't say you have to have the tax stamp, it says:

(c) It is a defense to prosecution under this section that
the actor's possession was pursuant to registration pursuant to the
National Firearms Act, as amended.

So 2 things about that.

#1 It sucks because technically it is a defense to PROSECUTION so you can be arrested even if you have a legally held NFA item, though it doesn't happen in "real life" for that alone and

#2 If you were arrested, and the NFA had been modified to not require a tax stamp, you would still be acting pursuant to the NFA so the charges would be dropped.

Of the 9 types of prohibited weapons in Texas Penal Code, only 2 are covered by NFA anyway.

But you are correct that most of the firearms laws we have, not just in Texas, have racist beginnings.

I hope the Supremes will take that into account when they listen to this "collective rights" argument. I'm sure Justices Thomas and Scalia will have it in their thoughts.

 

[fastpat]

Ginsburg may have some rather terse questions on what limits apply to the constitution/amendments vs DC

I should think so.

By the way, DC has a National Guard and there's no exception for DC in the federal code defining the organized and unorganized militia either.

I should think that the idea of DC not being a state won't fly at all as standing to restrict rights.

 

[Socrates]

Many decisions by the court are feelings, and principals, rationalized by law. This is what really concerns me.

I feel, at least in Kali, that law is now so massive that it severely limits our basic right of freedom, and, the gun laws are certainly part of that. I'd like to have more information on the argument that laws have limited gunownership for a long time.
IIRC, most of this stuff started with the original big government guy, FDR, who created massive government agencies, who then taxed, and, continue to justify their existence by harassing business, and commerce.

I'm hoping the gut feeling of the court is we have too many laws, and, they need to strike down a few. Where are the four horsemen when we need them?

 

[RP88]

my main concern here is how this ruling is coinciding with an election that looks like it will favor the Democrats (for now). If Heller wins, there will still be obstinance against guns, but the initiative against bans will be hard to undermine with new gun laws. If he loses, then there could be enough momentum to allow other places to pass anti-gun laws from petty inconveniences to large-scale restrictions.

Either way, the ruling will attract politicians for the election, or at least it would seem so.

 

[Socrates]

Safest way would be for a Constitutional amendment, extending the 2nd amendment against the states, and federal government, meaning in plain language "no law" regulating firearms sale or ownership.

 

[Megistopoda]

Safest way would be for a Constitutional amendment, extending the 2nd amendment against the states, and federal government, meaning in plain language "no law" regulating firearms sale or ownership.

Safest way? Frankly, that's already been done with the 14th amendment. But the SCOTUS precedent has been selective incorporation via past case rulings. Incorporation is not on the table (per se) in this case....but reading the briefs shows that the issue is very close to the surface.

A new amendment would not be needed at all. All it would take is a ruling from the SCOTUS to that effect, and it would be so.

But even 2A incorporation would not (will never) flatly state that no law shall ever be passed or ever shall stand to regulate firearm sale or ownership. That will NEVER happen.

 

[gc70]

THERE is the deep, dark secret that the gun-grabbing tyrants don't want you to know - that the Supreme Court decided a 2nd Amendment case on the merits. It would have been incredibly easy of the Court to say, "Cert. denied, plaintiff lacks standing." in order to dispose of Miller, BUT IT DIDN'T DO THIS!!

SCOTUS had to (and wanted to) accept Miller. The district court had dismissed the charges against Miller and declared the NFA unconstitutional, in violation of the Second Amendment. The Supreme Court reversed in United States v. Miller.

BTW, here is the ENTIRE district court ruling for Miller:

Cite U.S. v. Miller, 26 F. Supp 1002 (W.D. Ark.), rev'd, 307 U.S. 174 (1939).

UNITED STATES v. MILLER et al.

No. 3926.

District Court, W. D. Arkansas, Fort Smith Division.

Jan. 3, 1939.

C. R. Barry, U. S. Dist. Atty., and Duke Fredrick, Asst. U. S. Dist. Atty., both of Fort Smith, Ark.

Paul Gutensohn, of Fort Smith, Ark., for defendants.

HEARTSILL RAGON, District judge.

The defendants in this case are charged with unlawfully and feloniously transporting in interstate commerce from the town of Claremore, Oklahoma, to the town of Siloam Springs in the State of Arkansas, a double barrel twelve gauge shot gun having a barrel less than eighteen inches in length, and at the time of so transporting said fire arm in interstate commerce they did not have in their possession a stamped affixed written order for said fire arm as required by Section 1132c, Title 26 U.S.C.A., and the regulations issued under the authority of said Act of Congress known as the National Firearms Act, 26 U.S.C.A. section 1132 et seq.

The defendants in due time filed a demurrer challenging the sufficiency of the facts stated in the indictment to constitute a crime and further challenging the sections under which said indictment was returned as being in contravention of the Second Amendment to the Constitution of the United States, U.S.C.A.

The indictment is based upon the Act of June 26, 1934, C. 757, Section 11, 48 Stat. 1239, 26 U.S.C.A. section 1132j. The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States, U.S.C.A., providing, "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."

The demurrer is accordingly sustained.

 

[Jim March]

I'm deliberately re-starting this thread for a reason, so bear with me.

Starting on page three I focused on the 14th Amendment and the Presser citation the DC city lawyers had made. Jon Roland replied by suggesting that a sophisticated militia-related argument be used instead of a heavy citation to the 14th.

The Heller oral arguments are now past, and we saw something interesting: Justice Kennedy (considered the swing vote) seemed willing to go along with an individual right to self defense, but also appeared unwilling (along with an unknown number of others) to risk loosening up the full-auto restrictions at the same time.

If that's where his head is at, we can assume at least some others of The Nine are too.

If they're looking for an "out", the research of Akhil Reed Amar, Stephen Halbrook and others regarding the real purpose of the 14th (including full incorporation of the BoR) is the only intellectually semi-honest "out" they have.

What I'm predicting is at least possible is that they'll severely limit (or even eliminate) the militia-connection to the 2nd but instead, claim the 14th turned it into a personal right to defense against criminals such as the proto-KKK.

That in turn would give us national-level home defense, handgun ownership and even open carry if not CCW.

Mind you, it would still be a crock of crap in that it's impossible to argue that the intent of the 14th was to *limit* anybody's rights of any sort. You certainly can't get there from anything Bingham and his cohorts of the period said.