I'd like to start a discussion concerning the perceived constitutionality of various gun laws from the lay perspective. We have number of lawyers who haunt this site, and their knowledge of case law is not being questioned.
I'm making some statements which will no doubt raise the hackles of lawyers (and judges) who may frequent the Legal forum. If their legal hackles are ruffled, so be it. The intent here, is not to dive into the minutiae of case law. That's well-covered in the Legal forum.
First. United States v. Miller is fraught with perceived errors.
Heller v. Washington, D.C. Why did the inherent right of an individual to keep and bear arms, ever get to the level of complexity that it did in this case?
The concept of "stare decisis"
I'm not naïve to believe that the concept should not be followed in various cases, since it does provide a level of stability at the inferior court level.
While Justice Louis Brandeis is oft-quoted concerning the use of "stare decisis", the next sentence tosses out the axiom when it comes to Constitutional interpretation. Felix Frankfurter, wrote, in 1939 that “the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.” And, Justice Brandeis also wrote earlier that "stare decisis" was not a "universal, inexorable command" and that the concept corrupts the original law. I'm also aware of the "vertical" and "horizontal" aspects of "stare decisis".
How has American jurisprudence swayed so far from original Constitutional intent, that lawsuits like Heller v. Washington, D.C., U.S. v. Miller, and McDonald v. Chicago, had to be brought at all?
While discussions here are correctly focused toward RKBA, let's not forget other departures by the courts, including Justice Hugo Black's "wall of separation" concept which is an apparent "whole cloth" idea, not grounded in legal precedence at all.
I'm making some statements which will no doubt raise the hackles of lawyers (and judges) who may frequent the Legal forum. If their legal hackles are ruffled, so be it. The intent here, is not to dive into the minutiae of case law. That's well-covered in the Legal forum.
First. United States v. Miller is fraught with perceived errors.
- The original trial judge threw out the charges on the basis of violation of the Second Amendment, i.e. the defendants had a right to possess arms. He did not explain his ruling.
- Because of the financial ability of Miller's attorney to travel to Washington, D.C., and other procedural errors, the Court only heard oral arguments from the Federal appellants.
- Two of the U.S. Supreme Court justices apparently swayed the court with their argument that the sawed-off shotgun was not a "militia" weapon.
- Miller was killed before the decision was made.
Heller v. Washington, D.C. Why did the inherent right of an individual to keep and bear arms, ever get to the level of complexity that it did in this case?
The concept of "stare decisis"
I'm not naïve to believe that the concept should not be followed in various cases, since it does provide a level of stability at the inferior court level.
While Justice Louis Brandeis is oft-quoted concerning the use of "stare decisis", the next sentence tosses out the axiom when it comes to Constitutional interpretation. Felix Frankfurter, wrote, in 1939 that “the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.” And, Justice Brandeis also wrote earlier that "stare decisis" was not a "universal, inexorable command" and that the concept corrupts the original law. I'm also aware of the "vertical" and "horizontal" aspects of "stare decisis".
How has American jurisprudence swayed so far from original Constitutional intent, that lawsuits like Heller v. Washington, D.C., U.S. v. Miller, and McDonald v. Chicago, had to be brought at all?
While discussions here are correctly focused toward RKBA, let's not forget other departures by the courts, including Justice Hugo Black's "wall of separation" concept which is an apparent "whole cloth" idea, not grounded in legal precedence at all.
