How do we stop this gun control virus

[Officers'Wife]

Please forgive my clumsiness as I'm not sure of the language. I think the term I'm looking for is which is the "binding" principle, Blackstone, Constitutional intent or subsequent court rulings. Quite frankly, I don't have the experience to describe the proper specifics. In all probability if I did I would already know the answer. So let me "get away" with saying all three being equal but contradictory considerations.

 

[Spats McGee]

Yes, the term that you're looking for in terms of caselaw is "binding precedent." Binding means that a particular court must follow it. If a lawyer finds himself facing binding percedent that's bad for his client's case, that's when he starts working to find a way to distinguish his client's case from the binding precedent. Like, "Judge, I know that State v. Smith says that the search was reasonable in that case, but my guy's case is different because X, so you should find the search in my guy's case was unreasonable."

They're not equal, though. It's kind of like a pyramid. From the top in the federal court system:
SCOTUS decisions -- binding on all inferior courts
Federal Courts of Appeal -- Each Circuit's decision is binding within that circuit, and persuasive in other circuits. If I find a 5th Circuit decision that's good for my client, I can bring it to my case in the 8th and ask the judge in my case to consider it.
District Courts -- not binding, because there's no lower court to be bound.

On the state level:
State Supreme Court -- binding on all inferior courts
Intermediate courts of appeal (where such exist), binding on the trial courts
Trial courts -- Not binding.


Blackstone and other recognized commentaries are "persuasive," unless you can find a case that makes the view taken in the commentary binding. "Judge, the 8th Circuit adopted Blackstone's view . . . " But it's the caselaw that's binding, not the Blackstone.

 

[phil dirt]

We can't stop them, but we absolutely need to support, with money, the NRA, and as many of the other pro gun groups as we can afford. And, make sure you are not voting for anti-gun politicians. I know gun owners who actually voted for Obama, twice. Talk about double dumb!

 

[Officers'Wife]

Thank you, I will assume then that case law is always considered to be within the framework of the intention of the framers of the Constitution then.

No offense intended but better you than me on this sort of thing.

 

[JRH6856]

There are no "constitutionally protected" rights. The fed and states have constitutionally granted powers that they cannot go beyond without the consent of the citizens. Our rights are only protected in the sense that the government has not been granted the power to infringe on them. At least that was the theory 222 years ago.

That there were no constitutionally protected rights was the main objection of the anti-federalists that resulted in the promise of a bill of rights being amended in exchange for ratification.

Madison argued that there was no need for a bill of rights to protect the rights of individuals, because the authority of the federal government under the Constitution did not touch the individual--it only touched the states so the protection of individual rights was manifested in the bills of rights in various state constitutions. But the anti-federalists feared the new fed. govt. would in the future seek to extend its power (as it has indeed done) and insisted that certain individual rights must be specifically protected from such federal overreach. Such protection was the price of ratification.

Madison drafted a Bill of Rights to be presented to the new Congress once the Constitution was ratified. Madison's draft was went through several modifications by both houses, and eventually resulted in the presentation and ratification of the first 10 amendments as the Bill of Rights.

But make no mistake, the intent and purpose of the Bill of Rights was and is to protect certain rights of the People, both individually and collectively, from infringement by the Federal government. The 14th Amendment extends this protection to include state governments as well.

Yes, the government can be granted the power to infringe or restrict these rights, and for rights not specifically protected from such restriction, the government already has such a grant in several places in the Constitution. It is against this grant of power that the Bill of Rights affords protection. All that is necessary to give the govt. power over these rights is to remove (by repeal) the amendment in the Bill of Rights restricting the power it already has.

 

[Officers'Wife]

That there were no constitutionally protected rights was the main objection of the anti-federalists that resulted in the promise of a bill of rights being amended in exchange for ratification.

Madison argued that there was no need for a bill of rights to protect the rights of individuals, because the authority of the federal government under the Constitution did not touch the individual--it only touched the states so the protection of individual rights was manifested in the bills of rights in various state constitutions. But the anti-federalists feared the new fed. govt. would in the future seek to extend its power (as it has indeed done) and insisted that certain individual rights must be specifically protected from such federal overreach. Such protection was the price of ratification.

Madison drafted a Bill of Rights to be presented to the new Congress once the Constitution was ratified. Madison's draft was went through several modifications by both houses, and eventually resulted in the presentation and ratification of the first 10 amendments as the Bill of Rights.

But make no mistake, the intent and purpose of the Bill of Rights was and is to protect certain rights of the People, both individually and collectively, from infringement by the Federal government. The 14th Amendment extends this protection to include state governments as well.

Yes, the government can be granted the power to infringe or restrict these rights, and for rights not specifically protected from such restriction, the government already has such a grant in several places in the Constitution. It is against this grant of power that the Bill of Rights affords protection. All that is necessary to give the govt. power over these rights is to remove (by repeal) the amendment in the Bill of Rights restricting the power it already has.

Exactly my point, the Fed/Anti-Fed arguments at the time either displays the deep understanding of human nature or the existence of a time machine. Nearly all the concerns of the Anti-Feds have come about over the passage of time. Including the fate of the citizen militia vs a standing army.

 

[JRH6856]

Exactly my point, the Fed/Anti-Fed arguments at the time either displays the deep understanding of human nature or the existence of a time machine. Nearly all the concerns of the Anti-Feds have come about over the passage of time. Including the fate of the citizen militia vs a standing army.

I'll go with a deep understanding of human nature (as well as a deep understand of the nature of governments). It was, after all, the Age of Enlightenment.

 

[abajaj11]

Regarding this open carry controversy, here is why it is instinctively repugnant to most gunowner who are pro 2A and also pro open-carry. The way they are carrying rifles is poorly executed and regulated. Consider open carry of pistols or revolvers. No one would condone carrying pistols at low-ready or in your hand as being safe open carry. In states where it is legal, it is usually required to be holstered...and holstered is defined as at least the trigger and trigger guard being covered. This is done in order to clearly distinguish between safe open carry and brandishing the firearm or appearing to be a threat in any way.

Now compare this to open carry of long guns. Long guns seem to be carried at low ready, or casually slung, with no attempt being made to distinguish between "safe open carry" and a threatening position. This is why most of us say that if we see someone open carrying a long gun they will have our undivided focus and attention till we are out of there. The solution is simple...open carry of long guns needs to be properly regulated...maybe carry in a scabbard, or cover the trigger and trigger guard in some fashion so that the rifle is not ready to be used instantly....in other words we need some way to open carry a long gun so that safe open carry is readily discernible from brandishment of the long gun.

Of course, overall, safe open carry is eminently desirable as a way to help folks recognize firearms for the tools that they are, as opposed to some sort of fetish to be feared or worshipped.

 

[JRH6856]

in other words we need some way to open carry a long gun so that safe open carry is readily discernible from brandishment of the long gun.

That used to be a rack in the back window of my truck.