Supreme Court to Hear DC Case

[LkWinnipesaukee]

I think if they rule in our favor, many of the current gun laws will still stand until challenge. Just because SCOTUS says so, does not mean the entire country will a) follow the holding immediately, or even b) follow the holding at all (until it is challenged).

Just take a look at Brown v. Board of Education of Topeka, KS, for example: it took a second Brown case before integration really started....


Someone correct me if I'm wrong...

 

[American By Blood]

Even a favorable verdict in Heller will likely mean nothing to the majority of American gun owners for the time being. It may eventually serve as a bulwark against universal confiscation, but that's about it.

This is all going to hinge on what the court deems "infringed" to mean. Read some SCOTUS decisions and you'll see that they tend to rule in the most narrow fashion possible and only very rarely make sweeping decisions. The fact that you basically can't own guns in DC means that 2A rights are being infringed. So a favorable verdict would mean that the District has to throw open the registry. Other cities that have de facto bans via closed registries (Chicago, I think) would eventually be forced to do the same by subsequent suits based on the Heller precedent.

But what about people in CA, MD, etc? Will the court rule our states' gun laws as "infringement." Not very likely. Sure, I have to wait two weeks for my new EBR and I can only buy 20 round mags for it, but I can own it and other guns. For SCOTUS to rule that as "infringing" upon my 2A rights would require them to render an uncharacteristically broad decision.

 

[legaleagle_45]

Even if you could get a court to agree with that, it would be incredibly easy for the feds or state in question to simply erase the militia.

The individual states, maybe.... but that is an incorporation issue. The feds, never.... that would be the whole purpose of the 2nd as far as the reasoning of Miller and Aymette go....

 

[Cosmoline]

No, but you have a right not to be arbitrarily excluded for jury duty for reasons not reasonably related to your ability to perform your duties as a juror.

?? Really. I've bumped people because they were dressed weird. I think you're thinking about the limitations on the ability of attorneys to exclude people based on race. In that case, again, it's not the right of the juror to serve that's at issue but the right to a jury trial. As a lawyer myself there's no way in hades I'd ever be allowed to sit on a jury. I'd love to, but one side or the other (or both--or the court) is almost certain to have a serious problem with the idea of a fox in the hen house.

feds, never.... that would be the whole purpose of the 2nd as far as the reasoning of Miller and Aymette go....

Why do you say "never"? The federal militia statute at 10 USC 311 and elsewhere is just a statute. It can be repealed like any other statute. The specific reference to the militia in the enumerated powers gives Congress the ability to create a militia, but does not require it to do. Anymore than Congress is still required to grant letters of Marque and Reprisal or whatnot.

The purpose of the 2nd under the usual reading of Miller is that the feds are forbidden from abolishing STATE militias. Nobody has ever said the feds can't abolish their own, or that the states can't abolish their own. And if the Second is limited to the militias, and the militias have been folded up and the code repealed, then the Second is dead letter.

 

[legaleagle_45]

I've bumped people because they were dressed weird.

As have I. The basic principle is somewhat like "employment at will". You can fire a person for any reason or for no reason, but you can not fire them for an unlawful reason. Preemptory challenges are similar in nature... at least when excersized by the state.

In that case, again, it's not the right of the juror to serve that's at issue but the right to a jury trial.

SCOTUS disagrees, I can look up the case law if you wish....

 

[legaleagle_45]

The question before the court is specifically about an individual who is NOT part of the militia.

Correct.

So if we take the militia view of Miller as binding authority then the case is already lost.

You are falling int the the trap of the antis... taint so.

No membership in a militia means no right to keep and bear arms, case closed.

Not if you take the view that the right protects a source of militia weapons, rather than militia weapons themself. Read Aymette.... the right to keep arms is absolute and every citizen may keep those arms that have militia utility, even though the right to bear arms refers only to service in the well regulated militia.

 

[Cosmoline]

SCOTUS disagrees, I can look up the case law if you wish....

It's a side issue but my understanding is the defendant or plaintiff would be bringing the case, not the excluded juror. You have no RIGHT to sit on a jury. As a litigant you do have a RIGHT to a jury, and that jury cannot be selected on the basis of race. I could be wrong about that, though. Do you know a case where the excluded jurors sued and got themselves put on the jury?

 

[legaleagle_45]

Why do you say "never"? The federal militia statute at 10 USC 311 and elsewhere is just a statute.

Because the 2nd amend can not be repealled by statute. The 2nd under miller, prevents federal hanky panky so as to destroy the viability of the militia. There is nothing that prevents the feds from taking away equip from the NG... in fact they now do that with NG units rotating out of Iraq.

So long as the people... the general populace, have a right to possess arms, no amount of mischief by the feds, whether malovent or benign, will cause the militia to be without arms, since the people's weapons themself act as a fool proof armory to provide replacement arms in the event of an emergency... and those arms can not be prohibited by the feds.

 

[Cosmoline]

The amendment cannot be repealed. But if as you and other suggest, Miller holds that the RKBA is based on militia membership, then that membership can be taken away rather easily. So if you aren't a member of the militia, and there isn't any militia, how can there be a right to keep and bear arms on behalf of the militia?

The 2nd under miller, prevents federal hanky panky so as to destroy the viability of the militia.

Where did you get that idea? The feds haven't even used the militia for ages. Most of what was left of the militias was folded into the National Guard, which has become so completely federalized at this point it might as well be a branch of the standing army. The feds could certainly pass a law that there was no longer any more unorganized militia.

 

[legaleagle_45]

]It's a side issue but my understanding is the defendant or plaintiff would be bringing the case, not the excluded juror.

The plaintiff or defendant has standing to complain of the the infringement of the right held by the excluded juror...

Thus, although an individual juror does not have the right to sit on any particular petit jury, he or she does possess the right not to be excluded from one on account of race.

POWERS v. OHIO, 499 U.S. 400 (1991)

 

[Cosmoline]

Sure, but Mr. Powers was the criminal defendant. The juror didn't bring suit. I don't know how the logistics of such a claim would even be worked out.

http://supct.law.cornell.edu/supct/html/89-5011.ZS.html

Anyway, let's stay on the question of the Second. You seem to have decided that this appeal needs to be addressed within the confines of the militia clause because of the well-known discussion in Miller. I believe that to be dicta, and to the extent it is holding it should be overruled. There's no reason for us to restrict ourselves to the militia clause, and doing so favors the antis greatly.

 

[legaleagle_45]

The juror didn't bring suit

True, that was a standing problem for the criminal defendant...

I don't know how the logistics of such a claim would even be worked out.

There is another case where a civil rights group brought a class action on behalf of excluded jurors... The point is, SCOTUS clearly states "[the individual juror] does possess the RIGHT not to be excluded from one on account of race."

 

[Gator]

The Brady Bunch are seizing on this as a fund raising/scare the public opportunity, of course:

U.S. Supreme Court to Hear Second Amendment Case
We need your help to defend America's gun laws

Brady Gun Law Defense Fund

Just minutes ago, the U.S. Supreme Court decided to take what could be the most significant Second Amendment case in our country's history.

Thanks to your support, your Brady legal team had already begun preparing for this announcement, but now our lawyers have swung into high gear to prepare our "friend of the court" brief.

We have a tidal wave of work to do in the weeks ahead and we need your help now.

This fight is so critical that we need to raise $50,000 by November 30. And since your gift will be going to our Brady Gun Law Defense Fund, it will be fully tax deductible!

We need your help today to build a strong Brady Gun Law Defense Fund to protect America’s gun laws. Please give today.

Earlier this year, a U.S. Court of Appeals struck down a gun law as violating the Second Amendment for the first time in American history. We believe this decision was judicial activism at its worst and was clearly wrong.

This legal case at its very core is the most important battle we have ever waged. The U.S. Supreme Court has the chance to reverse a terribly erroneous decision and make it clear that the American people can adopt restrictions on firearms in their communities.

If the Supreme Court does not reverse the federal appeals court decision, gun laws everywhere could be at risk…

…from the long-standing machine gun ban…to the 1968 Gun Control Act…to the Brady background check law.

…to your local and state laws…like the ones in California and New Jersey banning military-style Assault Weapons… and many more.

If that happens, then your Brady Center will defend these laws in the courts as we have done so many times in the past against the attacks of the gun lobby. But now we must focus on the immediate challenge at hand as we prepare for the fight in the U.S. Supreme Court. Please give generously.

Sincerely,

Sarah Brady, Chair

P.S. I cannot stress how important your gift is to our Brady Gun Law Defense Fund. Please give a tax-deductible gift today.

 

[legaleagle_45]

But if as you and other suggest, Miller holds that the RKBA is based on militia membership

That is exactly the opposite of what I suggest. That is what the antis want you to believe. They are wrong. The purpose according to Miller and Aymette is to preserve and protect the militia. The possesion of weapons in the hands of the general populace serves that goal according to both Miller and Aymette because it provides an unimpeachable resource by which the militia can be resurrected.

BTW, I will state once again that I believe both Miller and Aymette were wrongly decided, but that does not mean I will try to pretend they did not rule the way they ruled.

Where did you get that idea?

The debates in the Viriginia Ratyfing Convention....

The feds haven't even used the militia for ages.

Irrelevant even if true... The debates clearly demonstrate that they were also concerned that the militia would fade away from federal disuse.

what was left of the militias was folded into the National Guard, which has become so completely federalized at this point it might as well be a branch of the standing army.

But for the provision regarding State Guard, the NG would be unconstitutional usurpsion of the states right to a militia of its own... See Perpich v DOD.

 

[legaleagle_45]

Are you both determined to bore us to death with your meaningless,inane,self centered utterings?

Yep

Lawyers are evil.

 

[nwilliams]

Are you both determined to bore us to death with your meaningless,inane,self centered utterings?
To quote Juan Carlos of Spain to Hugo Chavez"Why don't you both shut up?".

That wasn't a very nice thing to say, everyone has a right to speak here, if you don't like it then don't read it.

I was going to comment on the issue at hand but I see there is too much hostility so I will just move along.

 

[Fletchette]

"A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed"

Who has the right? - "the people"
Why do they have the right? - so they may form militias.
Why are militas important? - because they are necessary for the security of a free state.

Note, one does not have to be in a militia to have the right; you have the right, period. It is equivalent to saying that we have Freedom of the Press so that the people know what their government is doing, but that does not mean that only news reporters can write, and only about politics. You can write comic books if you like...

 

[Cosmoline]

Are you both determined to bore us to death with your meaningless,inane,self centered utterings?

A debate about the Second Amendment in the Legal forum? What was I thinking! We need more personal insults.

That is exactly the opposite of what I suggest. That is what the antis want you to believe. They are wrong. The purpose according to Miller and Aymette is to preserve and protect the militia. The possesion of weapons in the hands of the general populace serves that goal according to both Miller and Aymette because it provides an unimpeachable resource by which the militia can be resurrected.

I see what you're saying now, but I don't think that will get much traction. It represents a much more radical view of the militia than most would be prepared to accept. It's interesting food for thought, though. If I understand correctly you see the Second as creating not just a right to bear arms, but a right to bear arms as part of a national militia apart from the federal government. Indeed perhaps AGAINST the federal government.

 

[gc70]

07-290 DISTRICT OF COLUMBIA, ET AL. V. HELLER, DICK A.

The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes

Does it strike anyone else that the way SCOTUS framed the question will ensure that the militia clause is not used to sidestep the main issue?

 

[W.E.G.]

Hammer the Channel 4 survey!

http://www.nbc4.com/index.html

 

[orionengnr]

They are debating, and man of us are following and enjoying the conversation. This thread started out asking if anyone with some experience in the law had ano opinion on how this might go.

We have two people who appear to be well qualified in this regard, and they are both presenting themselves well.

I recommend that you go back and read the rules that you agreed to abide by when you signed up to be a member here.

 

[legaleagle_45]

If I understand correctly you see the Second as creating not just a right to bear arms, but a right to bear arms as part of a national militia apart from the federal government. Indeed perhaps AGAINST the federal government.

Somewhat correct. I am not a fan of of the "insurrectionist branch" of the 2nd (see Halbrook) and do not believe the framers intended the people to rise up in mass. Organized "rebellion" whereby state officials would direct the militia in opposition to federal oppression... Radical? Perhaps. But see Madison in Federalist 46 where he basically says exactly that.

Look at the militia as just a further check and balance within the government. The power of the feds to raise a standing army is offset by the state militia. One state could not hope to resist, but a combination of states, acting in concert would be able to overthrow federal tyranny.

Think "Civil War" as the template of exactly how this could occur.

 

[gc70]

Winchester 73;

You and I may not fully understand what Cosmoline and legaleagle_45 are discussing, but that does not detract from their debate.

 

[vis-à-vis]

How do you find out which Justices voted to hear the case?

 

[legaleagle_45]

How do you find out which Justices voted to hear the case?

Usually you can not. Sometimes, individual justices will write dissents regarding the decision on cert and, even rarer, other justices will write opinions defending the decision in response to to a dissent.... but otherwise, the vote is not revealed.