How big is Heller vs. D.C.?

[LAK Supply]

However, the import ban would seem to hinge not on a second amendment issue, but on the very clear power congress has to regulate trade with foreign countries. The import ban is not going away on 2A grounds.

It could go away. It may not go away for long as you are correct about congress and international trade regulation, but the "sporting purpose" premise for some of the bans could be attacked and, if successful, the ban could be tossed. Congress would probably jump in the next week and make a new law and they would be within their power, but anything based on "sporting purpose" would be subject to attack.

I would like to see this.... even if a ban was removed briefly on 2A grounds and then reinstated by congress with legitimate premise, it's another precedent set in our favor. I want to see "sporting purpose" shot to **** in any way possible; it's an unconstitutional premise for any firearms regulation, and the more it gets trashed the better off we are.

 

[mekender]

There's no "check" on the Supreme Court. Congress certainly wouldn't impeach a justice in the event that Heller is lost. Maybe another constitutional amendment could be passed (seems unlikely), but what's the point? What's to keep it from being misinterpreted as well?

actually, there are several checks on the SCOTUS... first, judges can be impeached, though it is unlikely... secondly, the legislative branch may stipulate what the court can and cannot rule on if it so chooses... i dont know if it has ever been done, but it is possible...

that aside, i am hoping that the ruling establishes that not only is it an individual right, but it is one that cannot be restricted... that would open the door for city and state challenges, as well as challenges against so called "gun free zones"

 

[Bartholomew Roberts]

There is also the check that the Supreme Court has no way of actually enforcing its rulings if the Congress and Executive choose not to play along.

 

[ilbob]

It may not go away for long as you are correct about congress and international trade regulation,

I am correct. Its right there in the constitution. no court is going to fiddle around with an enumerated power of congress.

Section 8 - Powers of Congress
...
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

It does not say that the regulations have to be sensible or fair or anything else.

 

[ctdonath]

Heller just got bigger. Montana is threatening to secede if SCOTUS rules for a "collective rights" view.

 

[RoadkingLarry]

Source for the Montana threat please.

 

[RoadkingLarry]

double tap

 

[riverdog]

Link to the Montana issue RKBA will be confirmed as an individual rights, but the breach of contract approach is interesting.

 

[RoadkingLarry]

hangfire

 

[ctdonath]

From today's Washington Times:

Second Amendment an individual right

The U.S. Supreme Court will soon decide D.C. v. Heller, the first case in more than 60 years in which the court will confront the meaning of the Second Amendment to the U.S. Constitution. Although Heller is about the constitutionality of the D.C. handgun ban, the court's decision will have an impact far beyond the District ("Promises breached," Op-Ed, Thursday).

The court must decide in Heller whether the Second Amendment secures a right for individuals to keep and bear arms or merely grants states the power to arm their militias, the National Guard. This latter view is called the "collective rights" theory.

A collective rights decision by the court would violate the contract by which Montana entered into statehood, called the Compact With the United States and archived at Article I of the Montana Constitution. When Montana and the United States entered into this bilateral contract in 1889, the U.S. approved the right to bear arms in the Montana Constitution, guaranteeing the right of "any person" to bear arms, clearly an individual right.

There was no assertion in 1889 that the Second Amendment was susceptible to a collective rights interpretation, and the parties to the contract understood the Second Amendment to be consistent with the declared Montana constitutional right of "any person" to bear arms.

As a bedrock principle of law, a contract must be honored so as to give effect to the intent of the contracting parties. A collective rights decision by the court in Heller would invoke an era of unilaterally revisable contracts by violating the statehood contract between the United States and Montana, and many other states.

Numerous Montana lawmakers have concurred in a resolution raising this contract-violation issue. It's posted at progunleaders.org. The United States would do well to keep its contractual promise to the states that the Second Amendment secures an individual right now as it did upon execution of the statehood contract.

BRAD JOHNSON

Montana secretary of state

Helena, Mont.

 

[yhtomit]

Heller just got bigger. Montana is threatening to secede if SCOTUS rules for a "collective rights" view.

ctdonath: got a cite for that? Sounds interesting!

timothy

EDIT: ha! As I wrote this, not only did others ask the same question, but you answered it.

EDIT the 2d: Do any other states have such a clause?

 

[RoadkingLarry]

Interesting premise but we lost that option in 1865.

 

[gc70]

Interesting premise but we lost that option in 1865.

Read on...

When Montana and the United States entered into this bilateral contract in 1889

 

[kurtmax]

I highly doubt that Montana would secede even of SCOTUS decides collective. They do have a much better chance of doing it than the South did in the 1800s for various reasons:

1. I don't think the feds would invade Montana if they seceded... I just don't think that many people in the entire country would be too happy about that.

2. The state actually does have a written contract. So if the contract is broken by one side, than it's pretty much established precedent they don't have to abide by the terms which would include statehood.

TBH I don't think much would happen if they seceded. I'd probably move there, and so would alot of other people (well depending on what type of gov was set up). My guess is that the state is too heavily dependent on federal funding to do such a thing.

 

[Ergosphere]

There is also the check that the Supreme Court has no way of actually enforcing its rulings if the Congress and Executive choose not to play along.

Down that path lies madness and anarchy. Similarly, Congress' power to restrict the jurisdiction of the federal courts is also problematic -- I've always found that to be a very strange clause.

The proper check ought to be impeachment, but AFAIK that has never been done to a Supreme Court justice, and I certainly don't foresee it happening in any case where the Supreme Court were to rule in such a way that increases the powers of Congress. Hm, perhaps this is a weakness in the Constitution...

 

[LAK Supply]

Quote:
It may not go away for long as you are correct about congress and international trade regulation,
I am correct. Its right there in the constitution. no court is going to fiddle around with an enumerated power of congress.

Quote:
Section 8 - Powers of Congress
...
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
It does not say that the regulations have to be sensible or fair or anything else.

I agreed with you.... why the defense?

 

[ctdonath]

Down that path lies madness and anarchy.

May be.

That path has been trod before though. In response to Justice Marshall's ruling Andrew Jackson said: "The Supreme Court has made it's decision, now let them enforce it." Interestingly, that issue involved recognizing a geographically identified group as a sovereign nation (the Cherokees).

Many died when that path was taken, one of our country's more shameful moments.
Montana leaders would do well to consider history. Secession is rarely taken lightly.

 

[ilbob]

The state actually does have a written contract. So if the contract is broken by one side, than it's pretty much established precedent they don't have to abide by the terms which would include statehood.

the south had a written contract too. it did not stop Abe Lincoln for so much as ten seconds.

no power is granted to the federal government to prevent a state from leaving the union. therefore, that power does not exist.

Amendment 10: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.

There is no power to prevent secession delegated to the US. The states are not specifically prohibited from seceding. Ergo, the states retained that power.

Incidentally, the articles of confederation refers to the union as perpetual. The constitution does not.

 

[Deavis]

The right to an abortion is not expressly stated in the constitution

Adding mythical rights to the constitution is much worse than erasing ones that really are there.

GAH. When you read statements like that it really drives home the point of the anti-federalists. Just because the Constitution doesn't list a right, that doesn't that a right does not exist. The BOR merely lists a few very important rights but it reserves all the other rights you have to the People. We're not going to talk abortion but saying you have a right to privacy or a right to do with your body as you please is NOT offensive to the Constitution.

So if a state banned all firearms ownership, you would be ok with it? I mean it is a states rights issue after all and you don't want federal control over these things.

Nice strawman but I'm not buying. States have Constitutions to protect your rights but the important thing is that states get power from people giving up their rights. If the people of Texas did decide to give up their right to own guns, then I'd either be part of the challenge or I'd move to a state that respected my rights. There is nothing offensive to me on a theoretical level about people giving up their rights willingly, that is completely ok. DC is not an example of that and neither is your strawman.

Keep working for reciprocity in your State, the Feds are not the answer.

 

[ilbob]

the south had a written contract too. it did not stop Abe Lincoln for so much as ten seconds.

BTW, just so people understand I am not totally illiterate history wise, I am well aware that the south started the war by firing first. One could well argue that gave the north full justification to declare war on the south. but in fact war was never declared. IIRC, Lincoln issued a proclamation that the south was in a state of insurrection.

I find it interesting that no one complains about the civil war being undeclared, while complaining about later wars being undeclared.

 

[kurtmax]

Well. The Civil War was just... crazy. Both sides were dead wrong and it's hard to get a clear picture of 'exactly' what happened (victors write history books).

Also, I know plenty of people that think Lincoln was the worst president ever. He did just about everything Bush is doing now....

 

[Sam Adams]

No offense to anyone, but can we get away from the Civil War that none of our grandfather's would even remember, and back to the Heller case and its importance - PLEASE?

 

[Vang]

Just because the Constitution doesn't list a right, that doesn't that a right does not exist. The BOR merely lists a few very important rights but it reserves all the other rights you have to the People. We're not going to talk abortion but saying you have a right to privacy or a right to do with your body as you please is NOT offensive to the Constitution.

You would be right that Congress clearly does not have the ability to ban abortion. However, I think it's clear the states have the power to ban abortion unless some provision of the constitution has removed that ability from them (which it hasn't unless you take a particularly pro-abortion view of certain broader protections). Remember, before the first amendment was "incorporated" states could have an official religion, ban atheists from holding public office, and so on.

I say this is a staunch supporter of abortion who thinks it should be explicitly protected in the constitution, but that doesn't change the fact that the line of cases of which Roe and Casey are a part is a farce.

 

[publius]

There is also the check that the Supreme Court has no way of actually enforcing its rulings if the Congress and Executive choose not to play along.

Also, there can be a way around SC decisions which does not involve impeachment or amending the Constitution. Consider what happened in the Lopez case.

The pro-gun side "won" that case because a federal gun free school zones law was overturned due to the tenuous connection of the law to the regulation of interstate commerce.

The other side also "won" because the federal gun free school zones law 922 (q) is still on the books! How in the heck did that happen???

Well, notice above I said that the Court overturned a federal gun free school zones law. By the time they did it, though, the one they were considering was NOT the one on the books, which had a brand new section proclaiming that Congress was legitimately regulating interstate commerce. The SC overturned the previous law, but left the current one standing.

 

[kurtmax]

That's what I've wondered about the SC. If Heller wins couldn't DC simply rewrite the law a little bit differently, and then go through the whole process again. Rinse and repeat?