9th Circuit denies individual right to own guns

Great Debates
141

You were saying that the first clause sets up limitations for the second.

I believe the meaning of the Second Amendment would be more concisely written (in modern) terms by the sentence I gave. I was curious as to what objection you would have to my version. If you objected, I would understand more clearly what you thought about it.

But you seem to agree - in which case, the way I wrote it, which I don’t think changes the meaning, is that the first clause is explanatory, but the second is the only real statement. The second clause isn’t “limited” to anything the first clause says, it’s only there for explanations.

Lots of state Constitutions have similar wording, like “As a free press is necesary to the freedom of a state, Congress shall not infringe upon the right of free speech.” That doesn’t mean free speech only applies to the press, but it’s an explanation as to why the second part is important/necesary.

I didn’t mean to really start a lingual hijack - because we’ve debated that before - but I wanted to more understand what you meant by your interpretations of the purpose of the first clause, and I thought it would be more clear to me if you explained why you thought my version was wrong.

142

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Who, except you, said anything about “the legal protection of rights” being arbitrarily reinterpreted on a whim?

I didn’t say that Jefferson was saying that.

As far as “reinterpreting rights” goes, I think it is clear from the posts in this thread that there is considerable difference of opinion in the currently living generations as to what “the right to bear arms” really consists of.

And I can completely understand minty green’s frustrations in this thread.

143

Actually, this is the calmest Second Amendment thread in quite some time.

144

This is pure bullshit. The language of the 2nd is not at all clear. And Americans don’t honor the 1st and ignore the 2nd, they honor them both. It’s just that they don’t buy into your bullshit assessment of what the language of the 2nd means.

You see, you don’t get to pick and choose what words you pay attention to and which you will ignore. And the 2nd read in it’s entirety sets a qualification for gun use that just doesn’t map very well into modern society.

145

Actually, miller had a good reason not to be there. He was dead.

146

I heard he was abducted by aliens. Part of their plan to disarm the populace prior to the introduction of Soylent Green.

147

I’m asking that question out of curiosity. I’m not sure how those things work. Feel free not to answer, I guess…

148

Shall we see if we can fix that?

At the risk of repeating what has been said in this and other threads, the fact remains that the courts are the institution to which we have handed over the task of authoritatively telling us what the law is and means. For years, for decades, for generations, the courts, and especially the several Federal Circuit Courts, have repeatedly and consistently held that the State and Federal governments have had the power to impose regulations on firearms ownership, possession and use which a ration legislature could reasonably thing would serve to prevent or combat a situation which is within the police power of the government to prevent or correct. The courts have reached this conclusion because they have determined that the Second Amendment does not guarantee and individual and private right to possess firearms–that the Second Amendment guarantees to the States the power/right to maintain a State armed force. Those two conclusions are linked. One depends on the other and the first rises from the second.

The courts have consistently rejected arguments that the power of the government is restricted to narrowly drafted restrictions which are necessary to combat a clear and substantial evil without unduly restriction of a general right to the possession of firearms guaranteed by the Second Amendment. This is the same standard used in First Amendment speech cases and reflects Justice Holmes “clear and present” danger standard. The only exception to this seems to be the Fifth Circuit case in which, as I understand it, the court says there is a Constitutional sanction for private possession of fire arms but the right is subject to State restriction, not under the “clear and present” danger doctrine, but rather under the “rational legislature” doctrine. In other words the Fifth Circuit said that there is a Constitutional right but it is subject to restrictions as if it had no special Constitutional protection.

This I am afraid is the unpleasant truth. This is the law NOW. There is no reason that the law cannot be changed by Constitutional amendment or by a clear and unambiguous deceleration by the Supreme Court. To argue that the Miller court got it wrong or that the language of the Great Charter has been perversely misread for all this time is just contesting the stars in their courses.

149

True. It’s much less convincing than you simply repeating that it’s dicta despite courts and advocates treating it as law.

No. I’m quite aware of dicta. But all you’ve presented is dictionary terms and proclaimed it to apply to Emerson. How that definition is applied is the real issue.

All you’re arguing is that under a law dictionary definition, it’s dicta. Well, in practice you’re incorrect. Similar cases (Strickland and Korematsu) have followed the same structure and are not considered dicta. But, more importantly, the Ninth Circuit has treated it as law as has the Fifth Circuit. You simply can not argue in the same thread that “the law is the law, not what you want it to be” then argue that Emerson is dicta simply because you want it to be.

If you were a AUSA in the Fifth Circuit and tried to ignore Emerson because it’s allegedly dicta, you’d lose badly. And if you argued to the court that it’s dicta, you’d get a less than pleasant reception. That’s the real world. If you want to argue that Emerson should be dicta, go for it. But your dictionary means little in the real world.

It’s not dicta.

150

Missed these

That might cement something, true. But a ruling can be precedential even if it’s never cited again. You’re trying to add a requirement to overcoming dicta that doesn’t exist. Your argument still starts from the presumption that it’s dicta, which you haven’t established.

This has absolutely nothing to do with whether it’s dicta or not. The fact that it’s not binding on another circuit is due to the structure of the federal court system. Even though Emerson is law, it’s not binding because it came from another circuit. I really don’t see how this argument helps you.

You’ve at least now made the admission that it’s not treated as dicta in the Ninth Circuit. Therefore, it’s not dicta because the courts treat it as law. That’s been my point the entire time.

151

Zoff, this is entirely too stupid to continue. I’ve demonstrated exactly what dicta is, and I’ve demonstrated why the individual rights analysis is dicta. You’ve responded by showing that the 9th Circuit (and ONLY the 9th Circuit) has treated Emerson as good law, and thereby deduce that it’s not dicta despite the fact that it fits the definition to a tee. That’s specious reasoning, and I’m not going to continue to argue it with you.

152

Jumping into this late - I agree fully.

I am sick to shit of lawyers and professors who don’t even really bother to research the topic jumping in from their position of authority because they have an inflated sense of self-esteem. I am sick to shit of HCI and anti-gun politicians telling me what the 2nd Amendment means, while openly lying about firearms usage and operation. And I am sick to shit of the troll of the week posting an anti (or pro) gun thread here.

Deep down, many people (IMO) are afraid of what the SC may say. Imagine what it means if the SC says clearly, unambiguously, and finally “there is NO right whatsoever to own guns, and the 2nd Amendment doesn’t really mean what it seems clear that it does from the Federalist Papers and the writings of the very authors of the Bill of Rights at the time. There is NO right, and the only reason you have even an air rifle (or knife to cut your turnips, for that matter) is solely at the will and permission of the Government.” Think of what it means:

  • A horde of laws passed within months enacting blanket bans of guns?
  • National registration and confiscation?
  • House-to-house sweeps by black-clad ATF agents with military gear?
  • ABC News gloating as it shows footage of gun shops being stormed by troops, hunters being arrested and led away in chains, and smiling policemen gloating as they stand before roaring bonfires of forcefully seized guns?
  • Or - nothing much? The status quo, but with the rhetoric and filth from HCI becoming louder and shriller, and nothing more than a simple tilting of the slippery slope?

But damn it - we need to know where we stand, and not have this wishy washy ambiguity back and forth. If the SC wants to say that black is white and the 2nd Amendment is invalid, then they need to say that outright, clearly, in language that the average dumbass sitting down to his Sunday Crack of football, beer, and nachos can understand.

And if the SCs does in fact recognize an individual right, in their view, then they must say it clearly and unambiguously as well, so we can tell people who continually assert that there is “no right” to shut the fuck up and ban them from this message Board when they continue to troll on that basis.

One way or another. Right or No Right. Keep or Ban. Somehow, some way, there needs to be a decision.

I know what I believe is right, based on the research I’ve done on the historical and contemporary basis of the writing of the Constitution. But we must hear in clear and unambiguous terms (and don’t quote past SC decisions to me, please. I have them all, and they are not clear and unambiguous on this subject, thank you) what State we live in under the laws of this Nation.

153

Although my post comes immediately after minty’s, my comment on “lawyers” does not refer to him - I typed my reply whilst still reading the first page of this latest drama. It refers to the frequent anti-gun op/ed pieces I am sick to shit of reading (especially in “USA Today”), where someone puts “Esq.” after their name, and thus they somehow are automatically “speaking from authority”.

I could put “PE” after my name, and thus automatically “speak from authority” on any engineering subject too, if I was an enormous inflatable assclown.

154

At last! A calm, well reasoned and rational post!

155

There is one other area in the 2nd Amendment debate – less-often discussed, but no less important from a legal point of view – that the U.S. Supreme Court has been clear and unambiguous about:

In the 1875 case U.S. v. Cruikshank, the Supreme Court stated absolutely, positively, unquestionably, undeniably that the 2nd Amendment only limits FEDERAL lawmaking power. States can pass laws left-and-right infringing on the right to keep and bear arms all they want to, and the 2nd Amendment can do nothing to prevent it.
(Er … of course, this was before the Courts had decided that the 14th Amendment provides “umbrellas of protection” which extend some of the lawmaking limitations of the Bill of Rights to the State governments as well as to the Federal governments – and, no, in this case, there has been no Supreme Court ruling one way or the other as to whether the 2nd Amendment is one of the things extended to the States by means of the 14th Amendment.)

156

OK…do you have a specific disagreement, or are you supporting me? :confused:

What I want is clarity, because I’m tired of the continual arguments which will lead to nothing whatsoever. The more that I have researched this whole issue, the less clear it is to me what the SC has really actually said on the underlying issue itself, and the circuit courts seem to be a mess on this issue. And on a Poster level - many take and extend some actions (or inactions) by the SC as being “proof” that there is “no right”; while others take another action (or inaction) as being “proof” that there is a right.

Yes, no rights are absolute. The 1st is not absolute, despite what some think; nor can the 2nd be an absolute right, despite what others think. But the SC has been far more clear with other portions of the Constitution than they ever have been with the 2nd (maybe the 3rd has less clarity, but then, there has never been an SC ruling on it, correct?)

157

Your posts are usually so clear and calm that I was surprised by the tone of that one.

Constitutional interpretation is complicated and there is a lot of emotion involved in this particular one. I suspect that the various courts’ various rulings, if diagrammed out on a block diagram would be a little fuzzy around the edges, most things are. Only those who insist on skating right on the edge of what the law allows really have any need to be concerned about encountering severe legal troubles. I have a double barreled 12 ga. and if courts follow their previous courses I doubt if I will ever have any problems over it. Don’t the “conservatives” always insist when “liberals” complain about a restrictive law or court ruling, “Those who behave properly won’t have any trouble, it’s only criminals who will be affected.”? Or words to that effect?

158

What is a “time of peace” really? “House,” but what about a home office? “In a manner proscribed by law” allows quartering in a “time of war.” What about right now, does the war on terror constitute sufficient reason to quarter troops in a business?

Slow weekend.

159

tracer, your parenthetical at the end of your post is why I didn’t mention Cruikshank in my earlier posts about the 2nd Amendment and the states. There’s another Supreme Court case from around the same time that said the same thing. Both are questionable since they predate the decision that the 14th Amendment does indeed incorporate some portions of the Bill of Rights against the states. Those holdings have never been overturned, but their rationale has been.

Anthracite, I regard it as a darned good thing you qualified that post with regards to me. However, I’m still not clear whether your post refers to any of the other lawyers who have posted in this thread. Collectively, we most certainly are NOT “jumping in from [a] position of authority.” We’ve cited the cases, we’ve discussed the holdings, we’ve spoken of the courts’ rationales, and we’ve pointed to the language and history of the amendment. We are, in short, doing exactly what people are supposed to do when engaging in legal analysis.

I’d also point out that your black-and-white description of the issue is false. Wanna know what happens if the Supreme Court clearly and unambiguously decides tomorrow morning that there is no individual right to bear arms in the Second Amendment? Nothing. Nothing whatsoever.

Deciding that such a right does not exist does not mean that one cannot bear arms. As a matter of policy, the public has already decided that we’re going to be armed to the teeth if we damn well feel like it, with only the most minimal restrictions. There is no giant tide of pent-up gun-grabbing public sentiment or legislation being held back by the Second Amendment. Besides, basically the entire counrty already lives under a collective rights interpretation . . . including you yourself. See United States v. Hale, 978 F.2d 1016 (8th Cir. 1992). Yet you’re still happily and legally armed, right? Hooray for democracy.

160

At this point would it be fair to say that, Emerson is binding in the Fifth Circuit, persuasive in the others, there is a split in the circuits and even an eventual SCOTUS ruling that the Second Amendment is an individual right will not significantly change anything until there is further litigation?