Guns and the Supreme Court

Advocate wrote:

Dave, you previously argued, as I recall,
that there is no room in A2 for the state and local governments to impose
regulations regarding the right to bear.

Have you changed your mind?

NO

Quote:

The private lawyers made no bones about there being room
for somewhat extensive regulation.

The function of a trial attorney, Advocate,
is to WIN the case,
not to get up on a soapbox and bare his soul.

If an advocate approaches a court in too RADICAL a manner,
about ANYTHING, that can have a negative effect upon how seriously his arguments are taken.

There is a school of strategic thought
in the pro-Freedom community in favor of patient incrementalism.
In addition, the USSC will find what it opts to FIND.
It will not bind itself strictly to what counsel said.
There is no judicial doctrine that an attorney can change the Constitution
by what he chooses for his arguments; u will search in vain for that in Article 5.

Quote:

For instance, one said that plastic handguns could be barred.

Functional weapons or replicas or toys ?
Toys do not have 2 A protection;
only weapons do.

David

0 Replies

BTW, I am in basic agreement with you on regulation, should the court decide that the right to bear is personal. In my view, A2 would leave no room for regulation if the right is personal.

Also, you should know that the Glock plastic handgun is no toy or replica. Moreover, it is designed to escape detection by sensors.

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Advocate wrote:

Also, you should know that the Glock plastic handgun is no toy or replica. Moreover, it is designed to escape detection by sensors.

Are you making stuff up as you go along?

There is A LOT of metal in my Glock handgun (and ALL others I've seen). Absolutly, no way a Glock handgun would pass through a metal detector undected (assuming the detector was functioning properly).

From wikipedia

Quote:

In fact, 83.7% (by weight) of the Glock pistol is normal ordnance steel and the "plastic" parts are a dense polymer known as "Polymer 2", which is radio-opaque and is therefore visible to X-ray security equipment. In addition, virtually all of these "plastic" parts contain embedded steel not to make the firearms "detectable", but to increase functionality and shooting accuracy. Contrary to popular movies like Die Hard 2: Die Harder, neither Glock nor any other gun maker has ever produced a "porcelain", "ceramic" or "plastic" firearm which is undetectable by ordinary security screening devices. Even if a pistol completely undetectable by either X-ray machines or metal detectors were to be developed, the ammunition inside would still be detectable.

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Advocate wrote:

BTW, I am in basic agreement with you on regulation,
should the court decide that the right to bear is personal.

In my view, A2 would leave no room for regulation if the right is personal.

If the vu were adopted that " reasonable " regulation were acceptable,
then effectively, the Constituion wud be repealed.
1 ) As lawyers, we know that what is " reasonable " is whatever a jury
or court says it is, with no limitation. Some sources, possibly including W,
appear to believe that outright bans on handguns are " reasonable. "
That leaves only shoulder weapons, and by their nature,
their awkward burden cannot and will not long be borne in public places;
hence, the people wud have only anti-burglary weapons,
but if robbers in the street choose them for their prey,
that 's tuff luck for unarmed Mom or Dad, in the street ).

2 ) If that vu were adopted
( that governments have jurisdiction for " reasonable " regulation ),
it is inevitable, that future collectivist authoritarian minded governments,
on federal, state n local levels, wud degrade defensive weaponry
to states of uselessness, like single shot weapons whose barrels are not less
than 7 feet in length, and not of less than 40 pounds in weight
( to render the recoil more gentle, u understand, to protect people 's shoulders ).

As an old man, I might not live to see the worst of it,
and their might be a brief period of freedom of gun possession,
but our posterity wud be doomed; ( unless, thay chose to make their living
as violent criminals, using either the remaining extant personal ordnance,
or who have recourse to underground gunsmiths.

There is a sick-minded philosophy that when an innocent citizen is attacked
by a robber or a murderer, it is immoral (and shud be illegal)
for the victim to injure the predator; that in order to help and protect
the predator he or she shud simply hand over his property,
and do not counterattack the criminal.
That perverted philosophy prevails in England and much of Europe.

Quote:

Also, you should know that the Glock plastic handgun is no toy or replica.

Your meaning was ambiguous.

I did not intend to deny the existence
of toys, replicas, nor of Glocks ( which are not to my personal taste ).
I prefer revolvers and some other automatics ( notably, the Luger P-'08 ).

Quote:

Moreover, it is designed to escape detection by sensors.

I must join in Maporsche 's thoughts and observations
and his wiki reference, concerning your assertion.

Advocate, I hope that u will live out your life in peace,
and that no predator will ever disturb u,
but if u r ever beset by any threat from man or beast,
I hope that u will have the means to end that threat as conveniently as possible.

I believe that the cornerstone of the USSC 's interpretation of the Second Amendment
shud be the acknowledgement of the constitutional right to self defense
and of access to the means thereof.
That is what the Founders had in mind; ( we know that from their writings ).

There were NO POLICE in the 1700s,
and it was obvious to everyone that he had to take care of himself.
David

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Advocate wrote:

It looks as though the DC gun rules will go down. This will, I think, open the floodgates for a great deal of litigation on gun issues of all sorts.

First we have to sue Chicago to secure Fourteenth Amendment incorporation.

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Jonsey wrote:

and then the murder rate will go back up in DC, and we'll be right back where we started.

No it won't. Freedom doesn't cause murder.

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Advocate wrote:

I was surprised at the pro-gun arguments. They seemed to say that one can be a little pregnant; i.e., DC can't ban all handguns, but can ban some. I don't see the constitution allowing such leeway in providing rights.

Oh?

Can you tell me the difference between strict scrutiny and heightened scrutiny?

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Advocate wrote:

Moreover, it is designed to escape detection by sensors.

Fiction.

:-(

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oralloy wrote:

Advocate wrote:
I was surprised at the pro-gun arguments. They seemed to say that one can be a little pregnant; i.e., DC can't ban all handguns, but can ban some. I don't see the constitution allowing such leeway in providing rights.

Oh?

Can you tell me the difference between strict scrutiny and heightened scrutiny?

First give me your view of this.

Regarding whether Glock, or similar, will escape detection is a nit that is tangential to this discussion. (I mentioned this as an example of something that might be the subject of future regulation.) I had previously read that they were designed to escape detection, and something to this effect was stated in "Heller."

maporche, your prolific use of smilies tells me that you are sharp.

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ERRATUM:

I c that I failed to close a parenthetical remark;
( very embarrassing ); my apologies.
Accordingly, I close it hereinbelow:

OmSigDAVID wrote:

Advocate wrote:

BTW, I am in basic agreement with you on regulation,
should the court decide that the right to bear is personal.

In my view, A2 would leave no room for regulation if the right is personal.

If the vu were adopted that " reasonable " regulation were acceptable,
then effectively, the Constituion wud be repealed.
1 ) As lawyers, we know that what is " reasonable " is whatever a jury
or court says it is, with no limitation. Some sources, possibly including W,
appear to believe that outright bans on handguns are " reasonable. "
That leaves only shoulder weapons, and by their nature,
their awkward burden cannot and will not long be borne in public places;
hence, the people wud have only anti-burglary weapons,
but if robbers in the street choose them for their prey,
that 's tuff luck for unarmed Mom or Dad, in the street ).

2 ) If that vu were adopted
( that governments have jurisdiction for " reasonable " regulation ),
it is inevitable, that future collectivist authoritarian minded governments,
on federal, state n local levels, wud degrade defensive weaponry
to states of uselessness, like single shot weapons whose barrels are not less
than 7 feet in length, and not of less than 40 pounds in weight
( to render the recoil more gentle, u understand, to protect people 's shoulders ).

As an old man, I might not live to see the worst of it,
and their might be a brief period of freedom of gun possession,
but our posterity wud be doomed; ( unless, thay chose to make their living
as violent criminals, using either the remaining extant personal ordnance,
or who have recourse to underground gunsmiths ).

There is a sick-minded philosophy that when an innocent citizen is attacked
by a robber or a murderer, it is immoral (and shud be illegal)
for the victim to injure the predator; that in order to help and protect
the predator he or she shud simply hand over his property,
and do not counterattack the criminal.
That perverted philosophy prevails in England and much of Europe.

Quote:

Also, you should know that the Glock plastic handgun is no toy or replica.

Your meaning was ambiguous.

I did not intend to deny the existence
of toys, replicas, nor of Glocks ( which are not to my personal taste ).
I prefer revolvers and some other automatics ( notably, the Luger P-'08 ).

Quote:

Moreover, it is designed to escape detection by sensors.

I must join in Maporsche 's thoughts and observations
and his wiki reference, concerning your assertion.

Advocate, I hope that u will live out your life in peace,
and that no predator will ever disturb u,
but if u r ever beset by any threat from man or beast,
I hope that u will have the means to end that threat as conveniently as possible.

I believe that the cornerstone of the USSC 's interpretation of the Second Amendment
shud be the acknowledgement of the constitutional right to self defense
and of access to the means thereof.
That is what the Founders had in mind; ( we know that from their writings ).

There were NO POLICE in the 1700s,
and it was obvious to everyone that he had to take care of himself.
David

0 Replies

There were some form of police on or before the founding of the country.

"The first local modern police department established in the United States was the Boston Police Department in 1838 ( In 1631 the Town of Boston started its first "Night Watch" ), followed by the New York City Police Department in 1844. Early on, police were not respected by the community, as corruption was rampant. In the late 19th and early 20th century, there were few specialized units in police departments.[2]"

--Wikipedia

I think it is clear that A2 was added to eliminate the fear that the new country would disarm the various nonfederal militias. Thus, it follows that A2 does not provide an unfettered right to bear.

0 Replies

Advocate wrote:

Dave, you must be shocked by the arguments of the pro-gun lawyers.
They appeared to limit their objections to the ban on handguns.
Moreover, they said that A2 could countenance pretty extensive
regulation, something that is very repugnant to you.

Most repugnant, indeed.

I have conceded the viability of a point of vu in favor of incremental
expansion of personal freedom, in subsequent litigation.
I will [ grudgingly ] stand by that.

Having admitted that,
I will address the merits of counsel 's admission ( however well or ill advised )
that possession of machineguns can be regulated by a government, consistently with 2 A.

In MILLER, the USSC reversed the trial court on a point of evidentiary law
( to wit: that the trial court had taken judicial notice [ as distinct from taking expert testimony ] )
that the " instrument " whose possession was the subject matter of that criminal litigatiion,
was a weapon useful to militia,
in that mutilated condition, with its barrel chopped off below 18" ).

If Mr. Miller had the good taste to carry a Thompson SMG,
instead of a sawn off shotgun, this issue wud have never arisen,
in that an SMG is obviously very useful to militia.

Counsel cud have pointed that out.
He chose instead to meekly and humbly admit
that governmental control possession
of machineguns is sweet n nifty.
Sad. SMGs like the MP5 make very fine home defense weapons.

Possibly, his stragic philosophy might be right; maybe.
There is an open question of how far the men who sit on the USSC
are willing to go. If I were among them, I 'd simply vote for a pure
reading of 2 A, but I can 't speak for how any of them see it;
a lot of the process that generates their respective votes is subjective.
We need to realize that. Thay are men, not computers.

Even mathematical philosophers have trouble in convincing one another.
I 've seen them get emotional, and ad hominem, in their conflict.
As Einstein put it, the march of science proceeds from funeral to funeral to funeral.
The Newtonians had emotional investments in their paradigm, off from which thay wud not be moven.

A fortiori, qua legal, political or social philosophy.

David

0 Replies

Advocate wrote:

There were some form of police on or before the founding of the country.

The country was founded in 1787 n got into business in 1789.
I agree with your wiki reference.
I do not agree that it supports your assertion.
Some guy roaming the streets at nite on the alert for fire, more than anything else,
n shouting " its 2 o'clock and all is well " is not the same as Joe Friday or Dick Tracy.
If John Q. Public complained to the nightwatch
that his tools were missing the next morning,
possibly he might commiserate, but that 's about as far as he 'd go.

If u wanna discuss the birth of police forces in America,
I am prepared to do that; ( as it happens, I know something about that ),
but it is tangential and pointless, IMO.
The credit ( if such it be ) belongs to New Orleans, (when Jefferson bought Louisiana in 1803)
which had a remnant of the French political espionage apparatus,
established by the Sun King to preserve the Capetian Monarchy from the rabble.
( That did not work out very well. )

Quote:

"The first local modern police department established in the United States
was the Boston Police Department in 1838 ( In 1631 the Town of Boston
started its first "Night Watch" ), followed by the New York City Police
Department in 1844. Early on, police were not respected by the
community, as corruption was rampant. In the late 19th and early 20th
century, there were few specialized units in police departments.[2]"

--Wikipedia

I think it is clear that A2 was added to eliminate the fear that the new country
would disarm the various nonfederal militias.
Thus, it follows that A2 does not provide an unfettered right to bear.

It is a historical fact that the country began with no police anywhere.
( Constables don 't count; thay were somewhat analogous to notaries public,
i.e., private citizens , private detectives [ like 77 Sunset Strip or Manix ]
with commissions from a government ).
Police were referred to as a " standing army " which was to be avoided.
Thay KNEW about standing armies, having had that of the King
quartered among them; thay 's Y the 3rd Amendment followed the 2 A.

When the citizens fell victim to the violence of man or beast,
thay 'd either take care of it personally,
or sometimes thay raised a hue and cry.
That means thay yelled for help from their neighbors.
These were de facto militia, the people themselves.

The 2 A had two functions:
1 ) to immunize any citizen from being disarmed by any government
and
2 ) to prevent government from prohibiting the armed citizens
from organizing themselves into militia, however informally.

I am sure that when the brave passengers of United Airlines Flight 93
organized to fight back against the Moslems
thay were not thinking of militia, but thay became
de facto well regulated militia
( in that thay were untainted by government control; purely private ).
Selected militia = government controlled militia.

When James Madison chose the words " well regulated militia "
he did not chance upon that phrase randomly.
It MEANT something; it meant NOT selected militia; not government militia.
It MEANT the citizens themselves,
not their hireling government, by its agents, servants or employees.
America was NOT to become a samurai based society,
with only elite government employees being armed.
The militia were the people themselves; anyone who was physically able to lift a gun.
During Indian raids, even women had to fight for their own survival.

David

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David, we are in basic disagreement on a number of issues. Unfortunately, come June, you will be on the winning side. The conservative majority of the court has made it clear that they see A2 providing a right to people in general.

I think this view is absurd. The Founding Fathers would not have mentioned a militia if they intended a personal right to bear. Further, I see a militia mentioned in a condition-precedent clause, which would clearly link the right, covered in an independent clause, to militia members, not the general public.

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Advocate wrote:

David, we are in basic disagreement on a number of issues. Unfortunately, come June, you will be on the winning side. The conservative majority of the court has made it clear that they see A2 providing a right to people in general.

I think this view is absurd. The Founding Fathers would not have mentioned a militia if they intended a personal right to bear. Further, I see a militia mentioned in a condition-precedent clause, which would clearly link the right, covered in an independent clause, to militia members, not the general public.

Advocate, I hope you're right. If you are, and Alito and Roberts make the difference then I will be very grateful to GWB for apointing them. That will be just about the only thing I'll be grateful to GWB for, but the right decision on this case could make up for a lot of wrong decisions later.

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Virtually every action taken by Bush has been a disaster for the country. His appointments to the courts will prove to be very long-lasting disasters.

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Your sig line
" I present myself to you in a form suitable
to the relationship I wish to achieve with you. " [ meaning success ]
does a nice job of explaining the reason counsel gave away the store
to Stevens; either that or he just was not able to think fast enuf on the spot.

In any event, I believe that the pro-Freedom justices
will not let him give away the store.

David

0 Replies

Advocate wrote:

David, we are in basic disagreement on a number of issues.
Unfortunately, come June, you will be on the winning side.
The conservative majority of the court has made it clear
that they see A2 providing a right to people in general.

I think this view is absurd.

Y r u surprized ?

Its been 18 years now, since back in 1990,
in the case of US v. VERDUGO 11O S.Ct. 1O56
(at P. 1O61) the US Supreme Court declared that:

" The Second Amendment protects
'the right of the people to keep
and bear arms ' ".

THE SUPREME COURT THEN PROCEEDS TO DEFINE "THE PEOPLE" AS BEING THE SAME PEOPLE
WHO CAN VOTE TO ELECT THE US HOUSE OF REPRESENTATIVES EVERY SECOND YEAR.
(Notably, one need not join the National Guard in order to vote for his congressman.)

The Court further defined "the people" to mean those people who have a right
peaceably to assemble [1st Amendment] and those who have the right to
be free of unreasonable searches and seizures [4th Amendment]
in their persons houses, papers and effects
(personal rights, not rights of states, as the authoritarian-collectivists
allege of the 2nd Amendment).
THE COURT HELD THAT THE TERM "THE PEOPLE" MEANS THE SAME THING
EVERYWHERE THAT IT IS FOUND IN THE CONSTITUTION OF 1787, AND
EVERYWHERE THAT IT IS FOUND IN THE BILL OF RIGHTS.

In VERDUGO (supra), the Court indicated that the same people are protected by
the First, SECOND, Fourth, Ninth and Tenth Amendments;
i.e.THE PEOPLE who can speak n worship freely are THE PEOPLE
who can keep and bear arms.

This is not obiter dictum, because the Court RELIED UPON
this reasoning to interpret what " the people " means in order to decide the case.

This is old news, Advocate.
That is simply the way that the nation was created.
The written history, their writings, prove this.
NONE of them supported gun control.
After all this time u r still gnashing your teeth and renting out your garments ?

Quote:

The Founding Fathers would not have mentioned a militia
if they intended a personal right to bear.

Did u not bother to read what I wrote about that ?
Thay had NO POLICE, and thay used to organize themselves
into militia when necessary, the same as thay organized themselves
into a fire brigade, informally, when the need presented itself.

Quote:

Further, I see a militia mentioned in a condition-precedent clause,
which would clearly link the right, covered in an independent clause,
to militia members, not the general public.

Advocate,
do u need me AGAIN
to present the quoted opinions of impartial expert professional grammarians
to the effect that the 2 A protects the right of individuals
to a libertarian, unencumbered, l'aissez faire right to KABA,
regardless of any militia ???
HOW MANY TIMES MUST I RE-DO THIS ?????

U have never, never, never offered a counterexpert, denying their professional conclusions.

I have told u, in good faith, of discussing this with OTHER experts,
English professors, 100% of whom agreed with the experts' parsing of 2 A.

Yet u persist with some, maybe a gut-feeling, is it, against freedom ??

What harm do u anticipate ?
Will u tell me that ???

David

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OmSigDAVID wrote:

Advocate,
do u need me AGAIN
to present the quoted opinions of impartial expert professional grammarians
to the effect that the 2 A protects the right of individuals
to a libertarian, unencumbered, l'aissez faire right to KABA,
regardless of any militia ???
HOW MANY TIMES MUST I RE-DO THIS ?????

U have never, never, never offered a counterexpert, denying their professional conclusions.

I have told u, in good faith, of discussing this with OTHER experts,
English professors, 100% of whom agreed with the experts' parsing of 2 A.

Yet u persist with some, maybe a gut-feeling, is it, against freedom ??

Dave, I'm on your side in this argument, but could you post those links for me? I'm curious to get to the bottom of this whole comma debate.

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maporsche wrote:

Advocate wrote:
David, we are in basic disagreement on a number of issues. Unfortunately, come June, you will be on the winning side. The conservative majority of the court has made it clear that they see A2 providing a right to people in general.

I think this view is absurd. The Founding Fathers would not have mentioned a militia if they intended a personal right to bear. Further, I see a militia mentioned in a condition-precedent clause, which would clearly link the right, covered in an independent clause, to militia members, not the general public.

Advocate, I hope you're right. If you are, and Alito and Roberts make the difference
then I will be very grateful to GWB for apointing them.

In my vu,
the pro-freedom side picked up half a vote,
in the sense that Justice Alito will be more RELIABLE
than Sandy O 'Connor was, tho she supported the freedom side
on important gun cases. Switching Chief Justices, I c as a wash entry,
as we were sure of his vote already.

The repressionist side kept up its level of personnel with no change.

0 Replies

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