quote:

Originally posted by jhe888:
You make the assumption that the view of the Constitution you favor is the right view. These cases are all about what the Constitution means, so that is in play. If the judge differs from you, that doesn't mean he is wrong.

In many cases I would agree with you completely, but given Heller put to bed the question of whether the 2A was an individual right, the remainder of the amendment (when supported with the underlying writings of the founding fathers) is both straightforward and grammatically simple. The 2A is also the 'only' amendment to include the phrase "...the right of the people to keep and bear arms shall not be infringed." There is no ambiguity there, unless you're a dishonest judge or politician pursuing an agenda. SCOTUS needs to clarify once and for all that "shall not be infringed" means exactly what it says.

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Originally posted by jhe888:

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Originally posted by ArtieS:
Thanks jhe. That is generally what my brief research on the subject showed, but you explained it far better than the published sources.

I recognize the problem; but it appears that the 2A is a particularly ripe area. I bang on a bit about this because (well, this is a gun forum) but more because of the seeming hostility of judges to apply Supreme Court precedent in this case. Ordinarily, a court or judge will take the logical inferences from a Supreme Court decision and they will infer reasonable corollaries from the decision. Many judges seem to be unwilling to apply the reasonable corollaries to the recent Supreme Court decisions, notably Heller.

Agreed as to some judges' unwillingness to extend Heller to anything beyond its facts. (Although, to be fair, Heller explicitly left a lot of things undecided.) What we need to hope for is that the Supremes decide some more cases and provide more guidance, especially on the large areas Heller doesn't touch. Then it will become harder for the lower courts to strike out on their own or even to swim against what appears to be the tide.

Jhe, what is the incentive, so to speak, legal, ethically right, or otherwise, to rule alongside SCOTUS decisions instead of against them ? The way I understand it, any judge can rule any way he wants regardless of higher court rulings. Is this true ? What about the 9th ?

Judges are supposed to rule in accordance with the rulings of courts that control them. A federal trial judge in Texas has to rule in accord with the 5th Circuit and the Supremes. That court isn't controlled by the 3d Circuit, but most trial courts would consider what other circuits do. If they get it wrong, that is, rule in a way that is inconsistent with established law, they will be overturned. They HATE to be overturned, even though they all say they don't care. They won't go to jail or be removed if they get it wrong.

But upper courts rule, in general, on narrower rather than broader grounds. This is generally good, but I won't write about why here. That is another subject. So there is often a difference in the matters before a court and the precedents it is bound to follow that would allow it to rule differently in good faith. So there are many honest differences of opinion. And sometimes there are mistakes. There is often legitimate wiggle room, and sometimes a lot of it.

Heller for example, tells us nothing about whether a state can regulate the possession of any particular kind of weapon. It explicitly did not make that decision. The opinion of the Court made a few remarks about that, but certainly didn't provide any rule or even much guidance. So, we like to guess what the Supremes will do on those points, but no one knows. Lower courts don't have much guidance on those questions, and will be free to make some rulings we don't like.

Those questions weren't at issue in Heller. The Court shouldn't have ruled on them - they weren't up for decision under the facts of the case. They have to percolate for a while to get up to the SCOTUS. Maybe the circuits will come to agreement on those points (not a negotiated agreement, but a legal consensus), and the Supremes won't ever have to decide. But probably not, and the Supremes will eventually have to decide whether we can regulate the possession of 40mm auto cannons. Or of .50 caliber rifles, or so-called assault weapons. And each of those decisions will show the contours of the rule a little better, but the decision on 40mm cannons may not be clear enough to tell us what to do about assault weapons and we'll need another case.

And if lower courts differ when the answer isn't clear (as if it is ever clear), they may get overturned if they turn out to be wrong.

I know we wish it were simpler, but it isn't And it isn't for good reasons. Broad, sweeping decisions have a way of creating rules that don't fit very well. One size does not fit all. We need decisions to be more granulated so that we can make our way to rules that take originally unanticipated factors into account, and don't create unanticipated consequences.

Does "shall not be infringed" really include all arms? A fusion bomb? A 210mm howitzer? Some would argue it does, but I am pretty sure that even a court of all Scalias would not so rule. (There are recognized limits on all the rights enumerated in the bill of rights. All of them.) A generalized rule made too early will almost certainly have a result, in some case, that later turns out to be really dumb. The court system doesn't want that.

quote:

Originally posted by jhe888:
Does "shall not be infringed" really include all arms? A fusion bomb? A 210mm howitzer? Some would argue it does, but I am pretty sure that even a court of all Scalias would not so rule.

Again, I think you over complicated the intent of the amendment with this statement. To "keep and bear arms" is the exact text of the amendment. I don't think it would be possible for an individual to "bear" (in the regular sense of what bear means) a howitzer or fusion bomb. All handheld firearms on the other hand fit the standard definition of "bear".

I fail to see why a case couldn't originate out of one of the totalitarian states where a person was denied their "right" to keep 'or' bear an arm, and filed a lawsuit specifically challenging the "...right to keep and bear arms shall not be infringed" section of the amendment as a result. Why can't SCOTUS specifically rule on what ...shall not be infringed means?

quote:

Originally posted by jhe888:
Does "shall not be infringed" really include all arms? A fusion bomb? A 210mm howitzer? Some would argue it does, but I am pretty sure that even a court of all Scalias would not so rule. (There are recognized limits on all the rights enumerated in the bill of rights. All of them.) A generalized rule made too early will almost certainly have a result, in some case, that later turns out to be really dumb. The court system doesn't want that.

Oh course those weapons are. The most powerful weapons at the time of the constitutions writing were field and ship canon. Often held privately.
Anyone making any claim that they aren't, is just making stuff up that isn't there. Should tv and telephones be covered by the first? After all its just freedom of press you know being able to get to a few hundred people a day, not the ability to reach hundreds of millions at the same time. Of course 100,000 people meeting somewhere should not be covered either, obviously that wasn't meant when they wrote about the right to peacfully assemble.

The 2nd was put in place for 1 reason. So that the people would be on parity with the army, and could never be suppressed by one.

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Originally posted by jhe888:

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Originally posted by gearhounds:
The traitors need to be identified and weeded out while they are still riding the bench. Yes, they may hold lifetime appointments, but in litigation with 2A components a solid case can be made for demanding a different judge, or retrial.

Explain that "solid case" for weeding out or demanding a different judge, please? Judges have different opinions about the law. That is part of the deal - you don't get to eliminate a judge because he doesn't agree with you.

I am absolutely pro-2d amendment, but what you say doesn't seem to make sense.

Let’s suppose that the SC ruled different on Heller (not hard to imagine, they were 1 vote away). Or in another case, they rule that in fact individuals do not have the RTK&BA, then Congress (led by northern liberal legislators) pass laws where everyone has to turn in their firearms (again, not hard to imagine).

What has changed so suddenly? For centuries, civilians could own firearms, but now all of a sudden, we can’t. Did my rights change (end), or did the court rule incorrectly? It’s pretty plain to me what the Constitution says about personal firearms ownership.

Just because 5 old ass lawyers, who are liberals, don’t follow the Constitution, but go with their liberal personal beliefs, doesn’t mean I can’t own a gun all of a sudden.

To my way of thinking, the SC has been wrong in the past in cases as old as Fugitive Slave law, Jim Crow laws, Interstate Commerce, etc. They are wrong currently on Obamacare (is it a tax?), Roe V Wade (your not gonna tell me everyone has a Constitutional right to a tax payer funded abortion), & 4th Amendment issues (traffic “safety” checkpoints).

“Living Constitution”, my ass.

As an aside, 1 problem is that as conservatives we basically follow the law, & most conservative judges rule according to the law, even when they may not like it. Liberals do not follow the law, they follow their feelz. Liberal judges find ways around following the law, changing the law to suit their personal agenda.

I had never realized what a liberal POS RBG is, until the liberals started glorifying her recently. After reading a few of her positions, she is a liberal nut. It appears JPS was also.

If you believe so much in the sanctity of the SC, would you turn in all of your firearms if they ruled an individual right to own them didn’t exist? I’m sure as hell not.

Just who are you preaching to? You want to start a movement to get rid of the SCOTUS? Gee, that sounds ridiculous, doesn't it?

I mean, just what in the Hell do you expect us to do about your distaste for the SCOTUS? If you just want to complain, go ahead and bitch, but all you're doing is making noise. The SCOTUS is here to stay and you'll just have to be mad about that.

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Originally posted by parabellum:
Just who are you preaching to? You want to start a movement to get rid of the SCOTUS? Gee, that sounds ridiculous, doesn't it?

I mean, just what in the Hell do you expect us to do about your distaste for the SCOTUS? If you just want to complain, go ahead and bitch, but all you're doing is making noise. The SCOTUS is here to stay and you'll just have to be mad about that.

What makes you think I’m mad? I’m pointing out the fact that SC makes some wrong decisions, is not infallible, & is made up of humans, some of whom are liberal, & do not necessarily make judgements based on the Constitution, but more on their liberal beliefs. If they make a wrong decision that strips me of my right to own firearms, which I think is clearly stated in the Constitutuion, I do not recognize their action. Same as I would have resisted the Fugitive Slave Law, & will resist any unConstitutional rulings they make as much as I can.

The thought of a geriatric liberal cunt like RBG ruling that I have no personal right to firearms is unacceptable to me.

So if Heller had 1 different vote, & it was ruled that individuals did not have a right to own firearms, are you cool with that? That’s the point.

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Originally posted by bigdeal:

quote:

Originally posted by jhe888:
Does "shall not be infringed" really include all arms? A fusion bomb? A 210mm howitzer? Some would argue it does, but I am pretty sure that even a court of all Scalias would not so rule.

Again, I think you over complicated the intent of the amendment with this statement. To "keep and bear arms" is the exact text of the amendment. I don't think it would be possible for an individual to "bear" (in the regular sense of what bear means) a howitzer or fusion bomb. All handheld firearms on the other hand fit the standard definition of "bear".

I fail to see why a case couldn't originate out of one of the totalitarian states where a person was denied their "right" to keep 'or' bear an arm, and filed a lawsuit specifically challenging the "...right to keep and bear arms shall not be infringed" section of the amendment as a result. Why can't SCOTUS specifically rule on what ...shall not be infringed means?

I am unaware of an argument that "keep" and "bear" aren't one thing and that the amendment protects only weapons that can be both kept, and borne. But, maybe there is. Or will be.

And, in any case, to make the same point, and to avoid that particular quibble, imagine my hypothetical included a satchel charge of 20 pounds of dynamite. It can be both kept and borne.

quote:

Originally posted by maximus_flavius:

Let’s suppose that the SC ruled different on Heller (not hard to imagine, they were 1 vote away). Or in another case, they rule that in fact individuals do not have the RTK&BA, then Congress (led by northern liberal legislators) pass laws where everyone has to turn in their firearms (again, not hard to imagine).

What has changed so suddenly? For centuries, civilians could own firearms, but now all of a sudden, we can’t. Did my rights change (end), or did the court rule incorrectly? It’s pretty plain to me what the Constitution says about personal firearms ownership.

Just because 5 old ass lawyers, who are liberals, don’t follow the Constitution, but go with their liberal personal beliefs, doesn’t mean I can’t own a gun all of a sudden.

To my way of thinking, the SC has been wrong in the past in cases as old as Fugitive Slave law, Jim Crow laws, Interstate Commerce, etc. They are wrong currently on Obamacare (is it a tax?), Roe V Wade (your not gonna tell me everyone has a Constitutional right to a tax payer funded abortion), & 4th Amendment issues (traffic “safety” checkpoints).

“Living Constitution”, my ass.

As an aside, 1 problem is that as conservatives we basically follow the law, & most conservative judges rule according to the law, even when they may not like it. Liberals do not follow the law, they follow their feelz. Liberal judges find ways around following the law, changing the law to suit their personal agenda.

I had never realized what a liberal POS RBG is, until the liberals started glorifying her recently. After reading a few of her positions, she is a liberal nut. It appears JPS was also.

If you believe so much in the sanctity of the SC, would you turn in all of your firearms if they ruled an individual right to own them didn’t exist? I’m sure as hell not.

For lots of reasons, there wasn't much 2 amendment jurisprudence until quite recently. So we had not ever had courts address what it meant. (I know it seems obvious, but please get over the fact that you think the meaning is self-evident. Much of the problem here is that we find it hard to imagine that there can be a competing view. But there is, and that is why there is a legal system.)

So the courts aren't changing their minds on the 2d amendment. There wasn't a body of law built up to change. For example, the 2 amendment was not incorporated into the 14th amendment and applied to the states until recently. There was no compelling reason to expect that it should not be, but it didn't happen until 2010 in McDonald. The 2d amendment just wasn't a live issue until the late '60s.

This isn't like reversing Dred Scott at all.

Are you arguing that the Supremes shouldn't be able to change the law if they decide a previous court did it wrong?

Don't get me wrong, I agree with your substantive views. I am trying to explain why the law is the way it is, and how these issues get resolved, and the rules for doing that.

quote:

Originally posted by jhe888: Much of the problem here is that we find it hard to imagine that there can be a competing view. But there is, and that is why there is a legal system.

Legal systems (governments) exist for the purpose of creating balance. Balance between individual(s) with competing interests and balance between individual(s) and entities such as the government itself. Without that balance, all we'd have is anarchy, violence, and destruction. Sometimes things the scales are tipped and violence becomes necessary to regain that balance. I sincerely hope we don't have to go there again (like we did in 1861), but if people can't see the difference between an inherent right for competent, law abiding citizens to own modern firearms (as a defense from criminals and a truly tyrannical government) and allowing literally anyone with the means to lawfully construct and possess an atomic bomb, then they don't just lack respect for our system of government, but the very concept of civilization.

To me this just highlights the critical necessity of voting for the correct people for president and Senate.

The democrats will appoint radical, far left justices - it's what their constituency demands. People who cherish freedom and the constitution need to quit demanding perfect candidates and do whatever must be done to deny democrats from holding elected offices.

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Originally posted by BamaJeepster:
To me this just highlights the critical necessity of voting for the correct people for president and Senate.

The democrats will appoint radical, far left justices - it's what their constituency demands. People who cherish freedom and the constitution need to quit demanding perfect candidates and do whatever must be done to deny democrats from holding elected offices.

Agreed.

quote:

Originally posted by jhe888:
And, in any case, to make the same point, and to avoid that particular quibble, imagine my hypothetical included a satchel charge of 20 pounds of dynamite. It can be both kept and borne.

Correct. And as such, I can see no reason why that satchel charge would not be protected under the 2A. Would I own one? Probably not, but I also have little interest in owning a Barrett 50 Cal, but I believe the right to own it is also protected under the 2A.

quote:

Originally posted by jhe888:

quote:

Originally posted by BamaJeepster:
To me this just highlights the critical necessity of voting for the correct people for president and Senate.

The democrats will appoint radical, far left justices - it's what their constituency demands. People who cherish freedom and the constitution need to quit demanding perfect candidates and do whatever must be done to deny democrats from holding elected offices.

Agreed.

+2

All interpretations of legalese aside, King George III had a very clear opinion on the subject of what kinds of weaponry we, the American citizenry should be *allowed* to own.

So did the writers of our Declaration of Independence, The Constitution of the United States and our Bill of Rights.

I view modern conflicts of interest in that light.