Just a quibble. Not everybody takes an expansive view of the 1st Am. when it comes to campaign finance reform.
Ironic, ain’t it? Anyway, anything minty doesn’t like, he calls dicta. We’ve already seen it in action a hundred times.
Well, that would be nice, but there is actually a ton of legal opinions that don’t make the right of the first amendment absolute by a long stretch. And it is the law. Take libel law as an example. I cannot lie about you without risk of the court giving you some of my money. Since you are a private person, I cannot invade your privacy and publish your children’s diaries. I cannot yell fire in a crowded theater, I cannot hold a demonstration without a permit (time, place and manner restrictions). I cannot hold up a sign on a stick within eye sight of the President, I cannot make terrorist threats, I cannot solicit a prostitute, etc.
The Supreme Court has already ruled (nearly 70 years ago) against the NRA’s position on gun ownership. The current Court may reverse that. As a practical and political matter, I don’t personally care (unlike most liberals) because I think the whole argument is a waste of breath. Enough people own guns that nothing is going to happen. Thousands of people die every year from guns in this country, you would think we are a third world dictatorship under attack from “rebels”.
Nothing of substance to add, Joe? Such a shame. I was really looking forward to your continuing contributions.
You didn’t answer the question. Why do Americans in general bend over backwards to defend the 1st Amendment, but either say nothing, or actively oppose the 2nd?
After all, the language of both is pretty clear. Congress shall make no law, Congress shall not infringe. Why the apparent double standard?
No problem. From the book Thomas Jefferson on Democracy, Ed. Saul Padover, New American Library. From a letter to J. Cartwright, 1824.
“Can they [our constitutional laws] be made unchangeable? Can one generation bind another, and all others, in succession forever? I think not. The Creator has made the earth for the living, not the dead. Rights and powers can only belong to persons, not to things, not to mere matter, unendowed with will. The dead are not even things … To what then are attached the rights and powers they held while in the form of men? A generation may bind itself as long as its majority is in place, holds all the rights and powers their predecessors once held, and may change their laws and institutions to suit themselves. Nothing then is unchangeable but the inherent and unalienable rights of man.”
Now you can argue that the right to “bear arms” is an individual right, inherent and unaliable, but that is a subject for argument by each generation, not a principle handed down from on high by a group of men over two hundred years ago and to be obeyed forever.
unaliable = unalienable
Sorry, missed this earlier.
Yes. Black’s Law Dictionary, Seventh Edition. I posted that definition back on page 1.
But if a principle stated in dicta is subsequently applied by the court in a subsequent case in an outcome-determinative context, then you’ve got some binding precedent. This actually happens with some regularity.
We certainly have the Ninth Circuit treating it as law, though it hardly matters since it’s not binding on them as a separate circuit. The Fifth Circuit, so far as I’ve seen, has only cited Emerson for the point that the feds can validly prevent certain categories of individuals from possessing firearms. That is certainly the valid holding of Emerson, but it is not the individual rights analysis.
Oh, an advocate says it’s not dicta? I guess that settles it, then. Thanks so much for straightening it out.
And if you don’t like Black’s Law Dictionary, try the one at Findlaw:
What, you think I’m making this stuff up?
I’m guessing you must have missed the post I was quoting from. In the post I was quoting, although it did not all quote, somebody (JoeCool?) had said that the statement “Froot Loops, being necessary to a well balanced breakfast, the right of the people to keep and arm bears… err… bear arms… shall not be infringed” had the same basic meaning as the second amendment. Something like that, I’m going from memory, so forgive me if I didn’t get the quote exactly right. The point I was making was that in that example Froot Loops have nothing to do with bearing arms, whereas in the actual amendment the militia phrase does have something to do with bearing arms. So the part you quoted is, in fact, not different in meaning from the second amendment.
Oh… and I apologize for being “loose” with my language and suggesting the Bill of Rights “grants” rights to people. As I said, I haven’t even been lurking here much for some time and didn’t reallize that such a mis-statement had previously been the subject of such a huge discussion. In the future I’ll try really hard to remember to say “enumerate” instead of “confer”.
Had Miller been there to present an argument was suitable to militia purposes, would they have looked at the NFA on Constitutional grounds?
Huh? They did review the statute’s constitutionality. They decided it was constitutional. What more could you ask for?
IANAL, but I’d wager that it’s because there is case law extending the 1st Am. to the States under the 14th Am., whereas there have been no similar 2nd Am. cases (unless I’m mistaken). Bring forward one case which establishes that the 2nd Am. is one of the “privileges and immunities” which States cannot abridge, per the 14th Am.
FWIW, some state constitutions explicitly extend gun rights to individuals. I know Alaska does, and without checking I’ll just wildly guess that Texas is another.
That sentence should read: “Bring forward one case… and then you’d be set.”
Oh, and I checked. Texas Constitution, Article 1, section 23:
I’ll note that, in Texas, an individual citizen is capable of keeping and bearing arms for himself. Did usage change in the 50-odd years since the Bill of Rights?
That’s the 1886 Constitution, I believe, so it’s closer to 100 years.
They decided that Miller’s rights were not being violated because Miller was not there to provide a case that his rights WERE being violated. Had he been, would they have overturned the NFA as unConstitutional?
Exactly, especially about the crucial undie issue.
To me, a good question is, assuming there is an individual right to bear arms, to what extent can the federal government regulate firearms possession? Should the states have greater power in that area?
I know that eventual confiscation is often cited by the NRA as a rationale for opposing some gun restrictions. If the SCOTUS made it clear that the right to bear arms is for the individual, the NRA might begin to think that licensing is not a prelude to confiscation.
The idea of the SA was, in part, that if many of the average nonfelonious people were armed that enemies of liberty or property foreign, domestic, or criminal would be less likely to succeed. Of course, when troubled kids, or snipers, gun people down the right gets attacked.
Other rights get attacked as well, especially the appellate rights of criminal defendants. People love attacking those. As if the last minute stay of execution was some kind of vacation for the condemned.
Well, as minty green has pointed out to us, the ruling of the 9th circuit isn’t really new so I think your ordering of events here implying an increasing curtailment isn’t really correct. It is more the court rulings as background that allowed those laws to be passed with the belief that they would pass constitutional muster.
Also note the distinction between banning certain weapons and saying that someone doesn’t have an absolute right to own them. A ruling that the Second Amendment does not confer an absolute right for individuals to own arms does not then ban the arms. Enough citizens must decide that such a ban is waranted in order to have laws written to ban them.
jshore: The 9th Circuit was reviewing California’s new and improved (1999?) assault rifle* ban, which did indeed ban a bunch more weapons, though of the same general type as the original legislation. Guess you could see some slippery slope in there, if you were so inclined.
(There’s some interesting discussion in the opinion re: whether the 2nd Am. applies to the state at all. Basically, the court decided not to reach that question because the first question is whether the gun owners had standing at all–since they don’t have any individual right under the 2A, they don’t have standing and everything else falls by the wayside. The court did, however, point out that one of its own earlier cases from a decade ago decided the 2A did not apply against the states.)
Beef:
Jeez, if the lawyers in the appellate cases I handle had done a better job in the trial court, would my clients still have lost? Dunno. Short of a time machine, I guess we’ll never know, huh? Nevertheless, the law is what the law is.
[sub]*Or, if you care to quibble with the ordinary usage of the term once again, Beef, we can go back to “magic thunderstick.” Personally, I’d prefer not to go down that road again.[/sub]
No problem. From the book Thomas Jefferson on Democracy, Ed. Saul Padover, New American Library. From a letter to J. Cartwright, 1824.
"Can they [our constitutional laws] be made unchangeable? Can one generation bind another, and all others, in succession forever? I think not. The Creator has made the earth for the living, not the dead. Rights and powers can only belong to persons, not to things, not to mere matter, unendowed with will.
[/quote]
**
It seems as if here he’s discussing whether or not to set up a mechanism to amend the Constitution. Nothing in here indicates that the legal protections of rights rights are arbitrarily to be “reinterpreted” at the whim of future generations.
That’s contrary to the idea of preventing tyranny, checks and balances, etc. If the next generation can just ‘re-interpret’ everything, what’s the point of a Constitution with safeguards?
**
It seems pretty clear that he’s saying that laws can be changed by future generations so long as fundamental rights are still protected. He’s very clear in the last line that protection for unalienable rights aren’t up for “interpretation”.
That’s not what he implies at all. He’s not suggesting we reconsider what rights we protect in the future and which ones we suppress. He’s very clear in that as our generation “…holds holds all the rights and powers their predecessors once held…” we can change our laws and such.
It certainly does not seem to me, as you suggest, that Jefferson advocates the “reinterpretation” of the Constitution to fit the whim of the majority at any given time. This quote seems specifically to warn against that.