Supreme Court Rulings

[mixtli]

How do members feel about the fact that the Supreme Court has never recognized the right to bear arms independant of a well regulated militia? Because it is not an individual right, it cannot be applied to the states by the 14th Amendment. No worries though, just because the Second Amendment of the US Constitution does not guarantee gun ownership does not mean state constitutions don't have gun rights. But arguing against gun control from a individualist Second Amendment standpoint ignores over a hundred years of precedent.

 

[Phantom Warrior]

But arguing against gun control from a individualist Second Amendment standpoint ignores over a hundred years of precedent.

I'm mildly confused. Are you saying that since the Supreme Court has not recently recognized it that the Second Amendment is a collective right and that it does NOT in fact recognize the individual right to keep and bear arms?



If that's what you are saying, I figured I should clarify before I (or someone else on THR who knows a little more history and law) completely destroys that idea.

 

[Mute]

You would be wrong:

Eugene Volokh on the 2nd Amendment

Miguel Faria



One more for your reading pleasure.

 

[tyme]

David Kopel has a book out on this very subject. Library, bottom of the left column.

 

[Molon Labe]

Keep in mind that the existence of our right to keep and bear arms is not contingent on the opinion of the U.S. Supreme Court. We have this right regardless of what it "rules."

It really comes down to a matter of recognition; the court can either recognize our right to keep and bear arms, or it can not recognize our right to keep and bear arms. Either way we still retain the right.

 

[mixtli]

Name one Supreme Court case where the Second Amendment was explicitly named as pertaining to the unfettered right of the individual to own a firearm. Yes, the SUpreme Court could be wrong on this issue, but I did not even mean to comment on that. What I tried to say is that they have decided, and that decision effects the politics. Come on guys, I am not for the seizure of all weapons, I'm just trying to get feedback.

 

[Cool Hand Luke 22:36]

We need a Constitutional Amendment that stipulates the US Senate may review the Supreme Court's decisions: with a simple majority needed to affirm or remand, and a super-majority to over-rule and render a Senate decision.

 

[ProGlock]

Uhh, the deadline is now looming for the BATF in the U.S. v Stewart case of the homemade machine guns.

Original concurrence/dissent: http://caselaw.lp.findlaw.com/data2/circs/9th/0210318p.pdf

Schedule:
http://www.supremecourtus.gov/docket/04a176.htm

Quite honestly, I am expecting to hear an upholding of the 9th's original decision. The ramifications of overturning it could shatter the very foundation of our federal government and the powers it could immediately usurp in every manner imaginable.

If this ruling were overturned, imagine a national tax on a new quilt your wife just sewed, or tomatoes you just grew in your garden, or new sapling trees you grew for your own use. Yes, that's precisely how far it could go if this ruling were overturned. It is blatantly unconstitutional for the federal government to have that much power.

Secondly, if the 9th's decision is upheld, than it must be upheld uniformly throughout the entire U.S., or else the government is in violation of the Constitution.

Article 1, Section 8, Clause 1:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;


I wait patiently.

 

[SteveS]

We need a Constitutional Amendment that stipulates the US Senate may review the Supreme Court's decisions: with a simple majority needed to affirm or remand, and a super-majority to over-rule and render a Senate decision.

That puts far too much power in the hands of the senate, IMHO. The Sup. Ct. has not always done the greatest job, but the Senate sure as heck isn't the pillar of restraint and common sense.

 

[ctdonath]

imagine a national tax on ... tomatoes you just grew in your garden

Too late by 50+ years.

Wickard v. Filburn - SCOTUS upholds Federal law punishing a guy for growing wheat on his property for his personal use.

 

[ProGlock]

That particular case about growing wheat seems ok to me because the farmer was given the land by the government for the purpose of meeting wheat quotas set by the feds. For using the government's land for his own personal use WITHOUT obtaining prior permission, than yes I can see why the court ruled against him.

 

[Zrex]

Proglock -

I PM'd you but will also ask here - what happens if the SC refuses to hear the Stewart case? Does that mean the ruling only applies only to the 9th circuit?

 

[femoralis]

ProGlock, the farmer in question grew the wheat on his own land, not gov land...

 

[ProGlock]

Zrex: Let's assume the Supreme Court refuses to hear the case. Then it will come down to what the 9th Circuit decides. They will either uphold their original decision (which would be good) or reverse their decision (which would be VERY bad).

BTR: From the Google links, it states the government "gave him an allotment". I can not find specific reference as to if it was already his own private land, or if it was public land that the government wanted him to grow wheat on. It sounds to me like it is the latter of the two.

 

[TallPine]

Name one Supreme Court case where the Second Amendment was explicitly named as pertaining to the unfettered right of the individual to own a firearm.

IIRC, the (in)famous Dred Scott case for one ...

The court said something to the effect of "if we let this black man have his freedom, then he can carry a gun around like white citizens have the right to do" (paraphrase)

 

[Tory]

In addition to the Dred Scott decision,

read U.S. v Verdugo-Urquidez; 110 S. Ct 1056 @ 1061 (1990). True, it is dicta (general discussion) and not "black letter law," but it clearly states that the right to possess arms is an indicia of citizenship - which is what the Dred Scott court said!

 

[Waitone]

We need a Constitutional Amendment that stipulates the US Senate may review the Supreme Court's decisions: with a simple majority needed to affirm or remand, and a super-majority to over-rule and render a Senate decision.

Not necessary. What is necessary is for congress to grow a spine and implement constitutionally prescribed remedies.

--All courts below the Supreme Court are creatures of the legislature. What so ever the legislature giveth, the legislature taketh away. Don't like the crap coming out of the 9th Circuit court of appeals? Bust it up. Make two or three courts out of it. And in doing so congress can appoint legal minds of its liking.

--Justices can be impeached. Again it would take the growth of a spine.

--Third, congress is granted the power to remove the right appellate jurisdiction from the Supreme Court. Article III, Section 2 spells out the provision. Again it would take a spine because someone would have to answer how come it was not used until this point.

Relevant Documentation

US Constitution Article III, Section 2, Paragraph II

quote:
--------------------------------------------------------------------------------
"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. "
--------------------------------------------------------------------------------



Case law of interest:

Ex parte McCardle, 74 U.S. 506 (1868) (USSC+)

http://www2.law.cornell.edu/cgi-bin...historic/query=


From the Syllabus

<snip>

"The case was this:

The Constitution of the United States ordains as follows:

§ 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

§ 2. The judicial power shall extend to all cases in law or equity arising under this Constitution, the laws of the United States,

&c.

And in these last cases, the Constitution ordains that,

The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make."

<snip>

Congress has the power to control an overbearing, tyrannical supreme court. It has failed to do so.

Other THR threads dealing with the same topic:
http://www.thehighroad.org/showthread.php?s=&threadid=83313&highlight=mccardle

http://www.thehighroad.org/showthread.php?s=&threadid=81888&highlight=mccardle

 

[Standing Wolf]

It is blatantly unconstitutional for the federal government to have that much power.

Government loves power more than the law.

 

[ctdonath]

SCOTUS ruled NFA '34 was ONLY Constitutional because it was a tax act, and made it clear that outright restriction/regulation of guns was not acceptable.

 

[Cool Hand Luke 22:36]

That puts far too much power in the hands of the senate, IMHO. The Sup. Ct. has not always done the greatest job, but the Senate sure as heck isn't the pillar of restraint and common sense.

Read Scalia & Thomas' dissent in Dickerson v. US 530 US 428 and see if you still feel like it's the US Senate that's the genuine danger.


Waitone

Congress' power to set the apellate jurisdiction of the court will always be exercised post-hoc.

For example, what good would it do to prohibit the Court from hearing any more cases involving privacy and abortion?, Roe is already out there.

Senatorial review of the Court is much more workable and more directly accountable to the people.

 

[RealGun]

So, if the Senate has the power to ultimately regulate the Court, should we sound the buzzer when "litmus test" questions are asked of nominees? Aren't we, by definition, looking for conservative judges, uphold the Constitution and all that? Isn't that fairly straightforward in evaluating candidates histories? Probing for indications re the bigger questions expected to be addressed by the SCOTUS seems a foul to me. I couldn't justify looking for a bias toward a favorable reading of the 2A. I could justify a "strict constructionist", who knows how to read the language and who will refer to colonial background. I think what I would be interested in would be a justice who would be willing to overturn aberrational precedent. I would not be shopping for the favored ruling, but simply pressing for Constitutional adherence and acknowledgment of the plain language in the Constitution, leaving it to Congress and the States to put forth more explicitly worded amendments.

My pet peeve is the Court refusing to hear a case without comment. That's unacceptable when viewed as due process. A Chief Justice should be bound to provide more than token commentary, meaning Congress should make that a legal requirement. It so happens that would have a direct bearing on the continual waving off of gun cases, but I think it is essential good principle.

 

[tyme]

My pet peeve is the Court refusing to hear a case without comment. That's unacceptable when viewed as due process. A Chief Justice should be bound to provide more than token commentary, meaning Congress should make that a legal requirement. It so happens that would have a direct bearing on the continual waving off of gun cases, but I think it is essential good principle.

They get thousands of appeals a year. What are they suppose to do, spend 15 minutes on each case? Or should the President reconstruct the Supreme Court with on the order of 1000 justices so one set of 9 can hear each case?

 

[RealGun]

They accept or deny cases for good reason. They need to let us in on what those good reasons might be. I don't think validation of lower court rulings by default is always their intent, especially when cases appear to have real merit but are mysteriously dismissed. The Court deliberated privately for months on Silveira, yet ultimately had no comment and dismissed it.

 

[mixtli]

"""Name one Supreme Court case where the Second Amendment was explicitly named as pertaining to the unfettered right of the individual to own a firearm.


IIRC, the (in)famous Dred Scott case for one ...

The court said something to the effect of "if we let this black man have his freedom, then he can carry a gun around like white citizens have the right to do"""

This is an interesting point. But the Supreme Court did not name the Second Amendment as the orginator of that right, and it did not imply that the right was unlimited. I'm sorry I don't have the case law with me right now, but in 1968, the Court upheld a 1968 omnibus crime bill because the law had a 'rational purpose" and did not interfere with the maintainance of state militias. Having a rational purpose is one of the weakest tests of constitutionality and could allow for any gun control law. I'm just suprised the NRA has not really championed the Ninth Amendment and said the right to own firearms is not explicitly stated, but is so fundamental as to still be listed as an inviolable right. But then they would lose the whole "right to bear arms" slogan. Anyway, thanks to everyone for not flaming me and realizing I am not a troll. I jsut finished a huge Constitutional Law paper and wanted a second opinion from the People

 

[RealGun]

it (Dred Scott) did not imply that the right was unlimited.

It did imply that rights are regulated privileges. That ruling was profoundly wrong, and everyone knows it, especially in historical perspective. Courts should be in a rush to overturn it and all its implications, given any integrity.