9th Circuit denies individual right to own guns

Great Debates
81

Point taken, re: Froot Loops. However, the parallel still holds. The point I’m making is that the primary clause performs two functions, regardless of the subordinate:
[ul][li]It (like the 1st, 3rd, 4th, 9th, and 10th Amendments) implicitly acknowledges a pre-existing state of freedom - THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED, as opposed to the Amendments which confer rights that do not exist naturally - for example, those that exist only as a function of our legal system, such as the 5th, 6th, 7th, and 8th (“The accused shall enjoy the right…”, “Excessive bail shall not be required…”).[/li][li]And it also declares whose right is being protected: THE RIGHT OF THE PEOPLE.[/ul][/li]
Also, that same “other relatively famous document” would sound ludicrous if, instead of “We the people…”, it began with “We the states…” wouldn’t it?

My point is that the rights defined in the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, and 8th Amendments all describe INDIVIDUAL rights. The 1st, 2nd, 4th, 9th, and 10th Amendments use the term of art, “THE PEOPLE”, all in the same manner - indicating an individual right.

Additionally, the 9th and 10th specifically and clearly differentiate “THE PEOPLE” from “THE STATES”. Wouldn’t it be odd for the 2nd to be the only Amendment using “THE PEOPLE” to mean “THE STATES”, whereas “THE PEOPLE” and “THE STATES” are clearly differentiated elsewhere in the same text?

And to answer your (and minty’s) question regarding an implication of an individual right by a SC ruling, see this post, in which I answered minty’s question for what seems like the 50th time. It is not explicit language, but assuming the reasoning module in your brain is working properly, it seems fairly obvious. :wink: (that’s not meant as an insult, rather as an attempt at being funny) I’d like to apologize in advance for the tone of my post, but certain posters have a knack for raising my ire.

82

Whoops. Got a little overzealous. The 9th doesn’t mention the states, only the people. But the main body of the Constitution does mention both entities separately, as well.

83

Max! Amigo! Congatulations, man. Hope you manage to make your way out of Lubbock soon. You definitely don’t want to be there next year when the 'Horns have finally gotten rid of that tosspot Simms and we’re out for Red Raider blood. No number of guns will save your goalposts from a bath in Town Lake. :slight_smile:

In re: Verdugo-Urquidez, I’d first point out that it’s dicta, since the case had zilch to do with the Second Amendment.

I’d second, point out that even the dicta only deals with the second clause, and not the first, and that it’s the first clause that it’s the first (“well regulated Militia”) clause that kills the unfettered individual rights reading, just as it killed the any-damn-gun-Ah-want argument in Miller.

And third, I’d point out that I too believe the Second Amendment was intended to confer an individual right, albeit of the “limited individual rights” model described by 9th Circuit. There’s an old thread around here where I explained that interpretation (I think it’s the “Reasonable Gun Control” thread"), but I had no idea any court would ever consider such a reading. Thought I was pulling it out of my ass, even though it made eminent sense to me. Ah well, great minds think alike. I hear Judge Parker retired from the 5th Circuit not too long ago. Think I can get his job? :wink:
Joe: Nice of you to pop up with a half-baked answer FIVE DAYS after I asked the question in the other thread. “Put up or shup up” challenges do not usually mean “sometime within the next week or so.” Frankly, I’d stopped paying atttention entirely by that point, and so I missed your attempt. Nevertheless, your belated point in that thread seems to be that they were thinking about militias when they wrote the Second Amendment. Who’da thunk it?

Besides, your attempted argument that the Court silently supported Miller on individual rights grounds while shooting him down on reasonable relationship grounds is entirely baseless. I could just as easily point out that what they were reviewing a statute whose subject matter was a particular type of firearm, and that task absolutely requires them to consider the narrow question of whether the firearm is protected as a prerequisite to deciding the broader question of who has a right to bear arms. But of course, that argument would be equally baseless.

I’ll quite happily concede that Miller does not decide one way or the other on the individual/collective controversy. If you ever have that epiphany, please don’t hesitate to let me know, okay?

And surprisingly enough, Joe, we didn’t read a single case about the Second Amendment in law school. I’m happy to say that I learned everything I know about the Second Amendment by reading the case law. It’s so much more effective to cut out the NRA and Sarah Brady as learned intermediaries, you know. Of course, it does also result in the pesky necessity of knowing what the heck one is talking about, but that’s a sacrifice I’m willing to make.

On preview: Whoa, the Constitution talks about both states and people? Amazing. Please now, as rebuttal to yesterday’s 9th Circuit opinion, see if you can demonstrate where the Constitution equates “the Militia” with “the people.” Go on, knock us out. I’d love for someone to show the court the error of its ways when it points out that:

84

Thankya muchly. Actually, I’d like to stay in Lubbock, since this is where my girlfriend is and plans to stay, but so far I haven’t been able to find suitable employment hereabouts; I’m forced to widen my search. Any openings at Green & Whoever? :wink:

And I do believe someone’s bottom is still smarting from the gridiron spanking he got this year… :stuck_out_tongue:

Well, the first doesn’t really matter, since the question on the table was “where has SCOTUS remotely suggested they might conclude the Second Amendment confers any sort of individual right?” I think the quote does rather suggest that conclusion, don’t you? As for the second: I actually find it quite interesting that they disregard the first (justification) clause of the amendment; perhaps they consider it relatively unimportant.

What, and leave all this?

(Incidentally, this is the first post I’ve ever made that contains smileys, other than one lone “test” ages ago. I feel kinda conflicted about it. Probably won’t use 'em again; they’re just not me. )

85

UncleBeer wrote

As soon as I read this I decided to dig up a Federalist Paper. I couldn’t remember the number but I distinctly remembered one which contrasted strongly with what you wrote. I found it. Guess which one it was? No. 29.

Naturally, I may be completely wrong about what you have written because I don’t know exactly what you mean by “state-sponsored militia” and “state militia”. Would you agree with the statement

? This idea bothers some people, but to them I couldn’t phrase a better question than

[The capitalization is in the original.] Again, I don’t know exactly what you mean by “state militia” so I might be way off base. Given the tenor of the Federalist Papers, it seems to me that there really isn’t more than one type of militia - the term refers means

(That particular language is from the Miller decision.) Does giving the states the (sole) power to appoint officers, and the Federal government the power to organize, arm, and discipline, change this from one kind of militia to another? I wouldn’t say so.

The militia has always been a partnership between government and public - perhaps the prototype of such a partnership.

By the way, I do think the framers provided, by implication, a mechanism by which a private citizen could be disarmed - expulsion from the militia. The power to “organize, arm, and discipline” is of little value if there way to enforce it. Seems to me that if someone were terminally unfit for militia duty it would be their state-appointed officer’s duty to do something about it, and if that didn’t work they would eventually be discharged. Naturally this would be carried out against individuals, rather than the public at large, and there is room to debate what constitutes due process.

86

Thanks, I prefer to think of it as “Tosspots & Green.” Unfortunately, the tosspots don’t buy that analysis, and the one guy whose name would build a Texas firm for a couple generations ain’t on the label. Such is big firm life. :wink:

87

Of course CONSERVATIVES pull things from their asses all the time, but they aren’t strict constructionalists.

Strict constructionalists != conservatives. Yes, Scalia is a conservative, but that does not mean that all that follow his views on legal interpretation are the same. In fact, in cases where conservatives and some liberals agree, Scalia dissents, saying it is not in the Constitution (see BMV v. Gore). He doesn’t kowtow to a party line to invent things in the Constitution. He actually practices what he preaches a vast majority of the time.

88

Yes, there is indeed a difference. I walk around with a dead man switch on my briefcase A-bomb, and nobody, but nobody, messes with me. I have a right to the most effective form of self-defense that I may choose for myself and my family.

There is no difference in the constitution, it just says arms. That would be one hellavu well regulated militia!

I’m mocking the strict construction here (although I do approve of gun ownership rights). The current argument is that assault weapons are needed to defend us against tyranny. Well, I need Little Boy in a Barcalounger to protect me, after all: one of my chief possible enemies is Saddam Hussein, who may have identical weapons of such mass destruction. The language of the constitution just says “keep and bear arms”, it doesn’t say inferior to what despot enemies of the Republic may be threatening us with. You could use that logic to deprive us of guns and say that everyone is entitled to a knife. Although strictly speaking, you aren’t allowed to carry a knife in a public place anymore, even a 3 inch pocket knife. The mere fact that my weapon might be completely effective to killing a quarter million nearby people if some suicidal nut decides to set my dead man switch off: after all (I’m choking on my tongue here): it wouldn’t be the bomb that kills people, it would be the suicidal nut. If we outlaw A-bombs, then only the outlaws will have A-bombs.

Suppose I am sitting in a donut shop late at night, enjoying coffee, a few jelly donuts, and in comes a bad assed robber with a weapon to hold up the store and me, it’s only lonely patron, after hitting the register and clerk. I say: “Whoa, buddy, don’t even try to finish with the clerk, I’m holding my briefcase A-Bomb with the dead man switch. It is foolproof mf. Put down your gun, put your hands behind your head and await the police, or I will fry you, and you buds in the car. Don’t think you can run away, 'cuz if you try, I’ll finish this jelly donut, and then blow you and your buds in the car away, from half a mile away. The question you gotta ask yourself is: do you feel really, really lucky punk? Is this a Pakistani crapola bomb that might not work, or is it made in the good ol U.S. of A. Well, do you feel lucky?”

Now nevermind that I die too. I’ve got to go sometime, why not in a blaze of glory. And if a gun purchased for self defense is ever used outside the firing range, it has a greater chance of injuring its owner and/or his family than an assailant. My set up only ups that percentage a little bit while assuring full retaliation against the perps. The fact that I might get hurt, and innocent bystanders, is no different a risk (except by more numbers) than any gun owner takes of hurting himself or innocent bystanders. That is a chance I am willing to take. And one that I am entitled to take under the 2nd Amendment. Current laws prohibiting me from owning nukes are clearly unconstitutional. Sure the “founding fathers” didn’t foresee nukes. But they didn’t foresee assault rifles either. They had one shot muskets and swords.

You had better not pry my nuke from my cold, dead hand!

89

I think it does need mocking here. Strict constructionalists probably would have no problem with people owning machine guns.

Of course some strict constructionalists might say that it isn’t an absolute right, and can be limited in certain ways. Though I wouldn’t know how those would come up with it.

90

Lots of jabbering clipped…

Bombs, artillery, mechanized infantry, etc, are ordnance. Not arms. BIIIG difference.

91

What surprises me is that the issue of whether the right to have arms (if there is such a constitutional right for the individual) is a basic human right to be included in the substantive due process of the 14th Amendment has never even been discussed by any court. IMHO, it is not, and these cases that deal with the power of the state to regulate such arms can summarily be dismissed on that basis. I believe the 9th Circuit did not discuss it is because it wished to expound its interpretation of the 2d Amendment. But why hasn’t anyone in this thread discussed it? It was cursorily mentioned in one of the early threads and assumed it was. To me, this is far from obvious.

92

First, minty, is it possible for us to discuss this civilly without your sarcastic remarks and attempts to belittle those who disagree with you? I’ll go first and make my answer to you polite.

No. My point is that they were thinking of the (indivudual) people being armed, and bringing their own weapons when the militia was called up. That when they wrote “the right of the people”, they in fact meant “The right of the people” and not “the right of the states”.

This is actually the first argument I’ve seen from you that actually has given me pause and makes sense on some level. I don’t buy it, but at least there is a thread of reason there. But again, my point is this: Miller was convicted of possessing an illegal weapon. His appeal was on the grounds that the 2nd Amendment protected his right to possess that weapon. Given that, who cares if this or that particular weapon was protected by the 2nd Amendment, if it did not protect HIS right to own a weapon at all? If it does not mean that he personally has the right to bear arms, then the court should have said so. Conviction upheld, defendant placed in custody, and any statements regarding which classes of weapons are covered under the 2nd Amendment become dicta ( :smack: ). After all, they are now irrelevant to the decision at hand - whether the 2nd Amendment protects Mr. Miller’s personal right to bear arms. Actually taking the time to research which classes of weapons the people are allowed to keep and bear - as the Miller court did - necessarily assumes that the people do, in fact, have the right to keep and bear at least certain arms. So the court silently affirmed that the 2nd Amendment refers to and protects an individual right.

I’ve never made the claim that the Constitution equates the militia with the people. All I said is that the text “the right of the people” is fairly clear. And, quit playing games. You know that the reason I said all that is to demonstrate that the drafters of the Constitution know the difference between people and states, and did not say one when they meant the other. If somebody writes a big long legal document, such as a Constitution or a Bill of Rights, and uses the one term with the same usage in several different places, where is the sense in choosing a single instance and claiming that “here it means something else!” especially when the something else is also a term used repeatedly? If they meant “the states”, they would have said it.

I’m going to draw another parallel.

Imagine that I said “Being that there are lots of pretty girls in New Jersey, everybody should take a walk on the beach.” Does that imply that I think only girls should walk on the beach? That anyone who isn’t pretty shouldn’t be there? That you shouldn’t take a walk on the beach if there are ugly girls? That pretty girls from Pennsylvania shouldn’t be on the beach?

My problem is that “what the law is” is based upon a dishonest interpretation of the Constitution, construing it very liberally in order to achieve specific political goals.

It should be obvious that there is a correct interpretation, which falls somewhere between “Everybody should be able to own anything” and what California and New York have now. Obviously my reading falls closer to the former than to the latter, but I’m willing to accept certain reasonable restrictions, such as barring violent felons, the dangerously mentally ill, and those under the influence of mind-altering drugs from possession; extremely stiff sentences for those convicted of crimes using a gun; etc. But what I will not accept as reasonable are measures such as legislatively banning particular types of rifle (especially when the criteria are nonsensical), banning through taxation (“make it so expensive that nobody will be able to afford it!”), registration, etc. And if not for the current political climate, which I firmly believe is intended eventually to lead to total bans, I’d even be willing to accept licensing of owners (in the sense that drivers are licensed: One license for anyone who wishes to be able to possess a gun, whether they actually own one or not, with no per-weapon enumeration). But I can’t support that now, since any step that includes granting of permission will be abused and used to make ownership more and more difficult.

93

I don’t understand.

The First Amendment forbids only Congress from establishing religion, or restricting freedom of the press and of speech, and so forth. States are not forbidden from doing so.

But apparently the First Amendment applies to states as well.

Why does all the Bill of Rights apply to the states as well as the Feds - except the Second?

Regards,
Shodan

94

I would too, in fact, I’d be completely sickened by the idea, given that no amendment in the Bill of Rights grants any rights.

(Btw, that isn’t directed at you in particular, that thread - it’s just the 50th time I’ve read something like that in the last few days and I decided to rant about it.

95

Because it’s a real bitch to amend the Constitution, and there’s too much vocal disagreement for any compromise.

(Excuse the slew of posts on the way, I just caught this thread).

96

It’s been decided in some places that the Militia referred to in the Second Amendment, written in the 1780s(?) refers to the National Guard, created by an act of Congress in 1917. This, despite the fact that the national guard is a select militia, which was specifically warned against, and the fact that the militia is defined in US Code and is quite seperate from the national guard.

So, change the meaning of the word militia, and emphasize that part of it, and you get some of the whacky case law we have today.

97

Is there an exception in the 14th amendment for the second?

98

There should be some things noted about the Miller case.

First, and most important, the defense was NOT REPRESENTED WHATSOEVER. The entire proceeding was the government arguing misleading arguments in front of the judges with no defense to point out why they were being misleading and raise points that would’ve been extremely relevant to the decision.

Miller couldn’t be found, and so he couldn’t appoint anyone to represent him.

The government made the argument that because Miller’s shotgun, model something something, serial number something something, was never in use with any army in the world that it wasn’t a militia weapon, and hence, wasn’t protected under the second.

They were technically right. No shotgun with Miller’s serial number was used in any military in the world, because Miller owned the only shotgun with that serial number. Technically a correct argument, but obviously misleading.

The defense could’ve easily countered with two points: Shotguns in general, and short barreled shotguns in particular, were in common use with most armies of the world. This would counter the idea that it wasn’t suitably a military weapon.

Second, they could’ve also mentioned that the law in question, the law under which Miller was arrested, the 1934 National Firearms Act also heavily regulated other weapons of obvious military value, such as machine guns. If the defense was there, they could’ve raised this point - and the spirit of the ruling indicates to me that the ruling would’ve gone the other way. Had it been argued that the NFA obviously restricts weapons that were suitable to use in the militia, for example, the BAR, the common squad-level automatic weapon in the US army, it’s likely that the court would’ve ruled against the NFA.

They only ruled against Miller because Miller did not prove that his weapon was suitable for military purposes. Miller, of course, did not argue this, because he was not there, nor was he represented.

Had it been pointed out that either his shotgun WAS a suitable militia weapon, or pointed out that the NFA regulated other weapons of obvious military value, it seems clear from the intent of the ruling that they would’ve found his right to bear arms, protected by the second amendment, was being violated.

But there was no defense to point such things out. The government case was misleading, and that’s all the court had to rule on.

Feel free to pick apart my interpretations, Minty - I can back up what you want me to with relevant quotes from the ruling.

99

On what basis, other than the wishes of those who advocate gun control, is the distinction between “the people” in one place, and “the people” in another place made?

100

Cite?

(Sorry, but this seems like something that sounds contrary to what Jefferson believed. Perhaps your interpretation is faulty, and hence, I want to see the actual quote.)