Gee, december, would you like me to find a case where the conservatives pulled one out of their asses? I’d point to Hans v. Louisiana as a particularly horrid example, where the states’ rights conservatives invented an entire clause for the 11th Amendment that isn’t even remotely in the original text. We could go on like that, conservative tit for liberal tat, all day long.
minty, you have said or implied that self-styled “strict constructionists” are as willing to ignore the words of the Constitution as the liberals are, but merely differ in the policy they prefer. Your example does little to prove your assertion.
That case was decided 112 years ago! And, I assume the writers of the decision were Democrats, since you called them “states’ rights conservatives.” Furthermore, AFAIK the writers of that decision never claimed to be “strict constructionists.”
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the states peaceably to assemble, and to petition the government for a redress of grievances.
Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the states to keep and bear arms, shall not be infringed.
Amendment IV
The right of the states to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the states
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the states.
Yeah, that works :rolleyes:
I understand your argument, but to quote a great legal mind
You might have a good policy argument, but if the courts treat it as law, it’s law.
And, for example, Korematsu v. United States established strict scrutiny of racial classifications, yet the internment camps were found to be OK. Strickland v. Washington follows a similar pattern – an analysis of the Sixth Amendment followed by the Court telling Strickland that his case doesn’t rise to ineffective assistance of counsel. Neither of these cases are treated as dicta.
?
Establishing the proper standard of review is a necessary requirement of every case, Zoff. Besides, even if you wanted to treat the standard of review as dicta in those two cases, plenty of other Supreme Court decisions have established the same principles in circumstances where it would make a difference to the outcome of the case. If the Fifth Circuit ever revisits the issue in an outcome-determinative context, then we’ll have something more than dicta.
Don’t feel bad, though. The principle of judicial review established in Marbury v. Madison is also dicta, and that’s some pretty venerable stuff there.
So, Kalashnikov, you mean you prefer a different interpretation of the Second Amendment? Alas, the law is what the law is, and it ain’t what you want it to be. 
december, I cited Hans as a particularly egregious example, but it is hardly the only one. I’d rather not hijack this to Cuba and back, however.
By the way, Kalashnikov, you highlighted the wrong word in the Second Amendment. Here, let me fix that up for you:
It’s the “Militia” phrase that the Supreme Court decided limited the scope of the “Arms” covered to those bearing a relationship to military use, just as the “Militia” requirement is what the courts have held to be the reason it’s only a collective right.
Damn those pesky drafters, huh?
There’s also no comma after “Militia.” Gotta be careful in these sorts of things.
Korematsu is really the only case on strict scrutiny of racial classification.
And if later decisions did establish the principle of Strickland those cases cited Strickland as law, not as dicta to be turned into law. For instance, the very first citation of Strickland by the Supreme Court was to say
United States v. Cronic
Here the Supreme Court cited Strickland for the proposition propounded in the original case, not as a good idea they choose to adopt.
So, clearly, there are cases where the Emerson-type of decision is law. Some academics and attorneys will say it’s dicta, some won’t. How do you tell who’s right? I’d say that you look to see what the courts think about it, since they’re the ones who matter. And they are saying Emerson isn’t dicta.
Cuba! NOOOOOO!!! [sub]runs screaming out of the thread[/sub]
Like I said, determining the the proper legal standard is a necessary part of every judicial decision, so those cases aren’t dicta. But this assertion:
is entirely incorrect. Any number of Supreme Court opinions establish the parameters of strict scrutiny for race-based classifications, as required by the Equal Protection clause. Try Loving v. Virginia (1967), the interracial marriage case, for one prominent example. The only way Korematsu is unique is that it was the first case to do so, and that it’s the only case where a race-based classification survived strict scrutiny (to the historical chagrin of the Court and the nation).
“They”? Who’s this “they,” kemo sabe? All I see is Silveira, yesterday’s 9th Circuit decision. Did I miss some?
Yeah, if you did that, I suppose you might. However, SCOTUS didn’t do that, no matter how much you wish they did. Miller limits only the types of arms that may be owned, not who may own them. U.S. v. Verdugo-Urquidez, which I’ve cited to you before, indicates that the Supreme Court believes that the phrase “the people” in the second amendment refers to individuals, same as the fourth amendment.
You’ll get no argument from me on what the state of the law is. However, unlike you, I can plainly see that the majority of the circuits are mistaken, misreading Miller and pulling new law out of their asses. This must be corrected.
This is not significantly different from what the 2nd Amendment says now. It gives an explanation in the subordinate clause, and safeguards the right (which belongs to the people, not the militia) in the primary one. And it does not say that only people who eat Froot Loops are allowed to bear arms, nor does it say that the Froot Loops themselves are allowed to regulate the possession of arms. The people are the ones the right belongs to, and the Froot Loops are the reason it’s vital that the people be armed.
There is one way to read it that is not dishonest or ignorant, and that is to acknowledge that the text says what it says. THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED. Because a well-regulated militia is necessary to the security of a free state. Nowhere does it say anything about the right of the militia or the states to do anything. It says THE PEOPLE, it means THE PEOPLE.
Personally, I hope the SC does review this and make a ruling, so you’ll finally shut up.
I seem to recall another time you were wanting to excuse the historical behavior of a group of people while simultaneously condemming another, extremely similar, group of people’s almost identical behavior. Why should the age of the case make a difference? Human nature really hasn’t changed much in those 112 years. Politicians, including judges, of every stripe can still bend the rules when they feel it’s justified. Your continual assertions that politicians of one stripe(those with ideals most opposite you own) do it more frequently or more severely than politicians of another stripe(those whose ideals more closely match your own) fall apart under even simple scrutiny. This simply serves to highlight your own bias and reduce the effectiveness of your position.
As for the OP, the constitutional ammendment gives the rights of regulation of the right to bear arms into the hands of the states. For the most part state constitutions pass this right on to their citizens. Here is a page with constititional snippets and article/section references for each state(warning, this site may attempt to play the star spangled banner at you). Note that most of these have built-in provisions against concealed weapons and it doesn’t say that ALL TYPES of arms are protected, simply that the rights of people to bear “arms” shall be protected. As long as it’s legal to own a .22, even if everything more powerful were outlawed, this test would still be “technically” passable.
Enjoy,
Steven
Isn’t that what they said about slavery? Probably with the same “neener neener neener!” attitude, too.
Hey there, Joe! I guess you would prefer a different interpretation of the Second Amendment too, huh? Oh well, the law is what the law is. Such a shame. Hey, are you gonna claim once again that Miller recognizes an individual right? Because I’m still waiting for you to come up with that language, ya know. I’ve given up on seeing you concede your claim on that regard is in error.
Oh, and thank you very much for your kind wish that I will shut up. Not bloody likely, compadre.
Hey, Max! Good of you to drop by. You too would prefer a different interpretaion, huh? Well, get cracking on that amicus brief to the Supreme Court.
Also, sources apparently differ on the comma. The Con Law textbook I checked doesn’t have it, but it turns out the one next to it on my shelf does. The Government Printing Office says no comma, but Findlaw says there is. Anyone know if there’s a graphic version of the original text anywhere online?
Hey SPOOFE, thanks for popping in. That slavery comparison really clinches the argument, don’t you think? I mean, boy howdy, gun control and slavery, jeez, I just don’t know how to distinguish those two. You win.
By the way, there’s yet another case to add to my list of Court of Appeals decisions accepting the collective rights approach: United States v. Graham, 305 F.3d 1094 (10th Cir. 2002). Poor little Fifth Circuit, all by its lonesome self.
WHOOSH!
Some of you missed the point that I was refering to the post I quoted:
and showing what the Bill of Rights must mean if “the people” means “the states” rather than “individuals”.
I thought the :rolleyes: (not to mention my well known position on the subject and indeed my username) would have made it clear that “Yeah, that works” was supposed to be sarcastic.
Of course I believe that “the people” means individuals, but if that’s not the case, why did the authors of the Constitution use the word “people” to mean one thing in the second amendment and something else in the others?
They didn’t. Rather, it is the Militia clause that courts cite as the source of the limitation on who gets to possess what. Check out Part I.B.1 of the 9th Circuit’s opinion (.pdf file), starting on page 25.
And anyway, there’s another reason to believe the circuit courts have badly misinterpreted the intention of the framers. They believed state-sponsored militia to be anathema to a free people. They believed a free people should be permitted the means to overthrow a tyrannical government. This can hardly mean they’d provide a mechanism whereby only the state militias had a right to keep firearms while also providing a mechanism that would permit private citizens to be disarmed.
I quote Federalist 29 written by Alexander Hamilton:
And also Federalist 24:
I think the intention is clear. I’ve no idea how the circuit courts have come to any other conclusion.
Nice quotes, Uncle Beer. I won’t reprint it here, but you may wish to read part I.B.2 of the Silveira opinion, which does a mighty fine historical analysis showing that it was the militias as part of the state government that so greatly concerned the drafters of the Constitution and the Second Amendment.
That starts at p. 39, by the way.