Roberts testimony on the 2nd Amendment

[BowStreetRunner]

I am encouraged by the testimony
my blog on the issue
BSR

 

[Henry Bowman]

I've said it before and I'll say it again -- it's not about "the right of the people." Only a kool-ade drinker or a complete moron would believe the "collective right" claptrap. The Supremes, like the 5th Circuit, will find an individual right if given the chance.

The real linchpin is "shall not be infringed." That seems unequivocal to me. It doesn't say "Congress shall make no law..." It doesn't reserve a right or power to the states to infringe if they choose. Yet, just like our beloved 5th Circuit, they will say that "shall not be infringed" means "subject to reasonable regulation." All of the elite within the beltway, conservative and liberal alike, are afraid of the John Hinkleys, Malvos and other nuts out there that are a threat to them or their neighbors. They don't want to have to defend themselves; they want to be able to feel safe where ever they usually go. They realise that others have to travel in more dangerous neighborhoods and may have a need for a gun for self defense -- but they shall be only subject to whatever terms and conditions the local custom requires, but no less than a reasonable background check and, preferably, a showing of need.

This is where we need a strict constructionist -- an absolutist. I fear that Roberts may be too "reasonable" for that. Oh sure, it's your personal right, so long as it doesn't interfere with my right not to feel afraid.

I hope Roberts has the right stuff, but I fear that Thomas may be our only "all the way" ally.

 

[Al Norris]

I'm afraid that I agree with you, Henry.

To give a little impetus to the Supreme Courts various opinions, consider the 6th amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,...

Some years ago (Baldwin v New York, 399 US 66, 69 (1970)), the Court ruled that all doesn't mean all. It means all criminal trials in which you could get 6 months or more in jail time. Then a couple of years later, the Court ruled (in an opinion by O'Connor) that even if you are charged with multiple counts, which could give you more than 6 months time, you are not entitled to a jury trial if the individual counts would net you less than 6 months.

So the terms, "Congress Shall Make No Law" and "Shall Not Be Infringed" mean no more than what TweedleDee (or was that TweedleDum?) said to Alice: Words mean what I say they mean. Nothing more and nothing less.

 

[Bartholomew Roberts]

Oh and they never actually ruled on the big question: is the right to keep and bear arms individual, or collective? They just said, "Well, a sawed-off is not a militia weapon so the 2nd doesn't protect you."

Actually, what the court said was that there was no evidence that a sawed-off shotgun had any relation to a well-regulated militia and remanded the decision to the lower court for them to reach a finding on that aspect.

That never happened because Miller was already dead by that point.

Generally appeals and higher courts do not rule on issues of fact. Most of the time they leave that up to the court that actually heard the case because they believe they are in a better position to determine the facts. Miller had a lousy lawyer in lower court and no lawyer at all before SCOTUS, so there was no evidence at all regarding that issue.

So technically, the court did not even rule that a sawed-off shotgun wasn't protected. it just said there was no evidence to say one way or the other.

 

[publius]

Starry starry decisis

Roberts on Kelo:

KOHL: Many people, including a majority, I believe, of people in my state, as well as myself, were quite disturbed by this ruling which appears to place much private property at risk by greatly expanding the eminent domain powers of local government.

We discussed this when you were in my office, and you told me that you were, quote, "surprised," by the decision. So could you expand on it a bit this afternoon and explain why you were surprised?

ROBERTS: I did tell you that was my initial reaction. I remember hearing about the decision driving, actually, back from a judicial conference with another judge.

And we all learn in law school the first, one of the first cases you study is called Calder against Bull. It has a basic proposition: The government can't take property from A and give it to B.

When I read the decision, I understood what the majority's position was: the difficulty of drawing a line between things that are obviously public use like a railroad, a road, things that are traditionally the subject of the exercise of eminent domain, and other activities that are not as clearly within that range.

Of course, Justice O'Connor in her dissent thought the line could be drawn between whether it was available to the public or not, and that certainly was available. The majority did say that it was not rule on the starkest example, in other words just determining to take the property from A to B because you think B could make better use of it.

The issue arose, as you noted in your question, in the context of an urban renewal redevelopment project, and that may be limited to that context or may not.

I do know there's been extensive legislative reaction to the decision. I know a number of states have passed laws already saying we do not authorize the use of the power of eminent domain to take for a use that's going to be from one private owner to another. And that's certainly an appropriate reaction to a court's decision in this area.

What the court is saying, what the majority is saying, is because of the difficulty of drawing a line, this issue is really left up to the legislature. And if the legislature wants to draw the line in a particular place, it has that authority.

But it certainly is a decision that was closely divided, 5-4, and it has gotten a lot of legislative reaction.

The point I would only make is perhaps it's a good example of the fact that legislators have a responsibility to protect the rights of the people just as much as courts.

And one way they can protect the rights of the people in this area, if they think it appropriate, is to restrict themselves in saying, we will not use the imminent domain power to the broadest extent that the Supreme Court has said we are authorized to do.

They are limited by how much power they want to exercise. Kind of like the interstate commerce limit, which has been interpreted to mean that if Congress has the brass to say that something affects interstate commerce, then it affects interstate commerce, and that's the end of that.

 

[beerslurpy]

What ever happened to the concept that we are endowed with inalienable rights by virtue of being born, rather than by having them granted by law? At the very least the rights and constraints of the constitution should not diminish with time.

If congress and SCOTUS can redefine words in the constitution to mean the opposite of what they say, then why do we bother having a constitution?

 

[kart racer]

I think this will either turn out great or the gop has just been takin' in one big con.Nobody will know for sure until he makes some rulings..

 

[Standing Wolf]

Never—ever!—trust a R.I.N.O.

 

[thereisnospoon]

WoW

NONE of the people inside the beltway give a rip about your rights

 

[publius]

A Shotgun Can't Kill A Redcoat?

So technically, the court did not even rule that a sawed-off shotgun wasn't protected. it just said there was no evidence to say one way or the other.

Goes to show how far we had come by 1939. If you showed the Founders a 1930s shotgun, they would definitely use it to kill Redcoats.

I think they'd react the same way to a modern crossbow.

They would think my wife's Keltec 32 was the cutest little Redcoat killer they had ever seen.

They would kill many people to get hold of my brother's Serbu 50.

If they saw what I could do with my wrist rocket slingshot and a musket ball (probably about equal to what they could do with a musket and a musket ball, but much quicker, and silent), they would freak out and order rolls and rolls of surgical tubing from the future.

It's very clear if you read the Federalist Papers that the 2nd is all about preserving the ability of the people to kill soldiers who need killing. If it will kill a soldier, it's part of the intent of the 2nd. That was obvious at the time they wrote it. By 1939, the court needed proof of the obvious.