I’m sorry, Beagle, did I miss it where you showed how the individual rights analysis in Emerson was outcome-determinative?
FTR, I do not expect that, if the question arises again, the 5th Circuit would rule differently. Emerson is still “persuasive authority” in the 5th Circuit, just not binding precedent.
And by the way, Beagle, you’re living under collective rights law too. United States v. Wright, 117 F.3d 1265 (11th Cir. 1997). Ain’t nothin’ “persuasive authority” if it’s already been rejected, and the individual right approach has already been rejected by almost all the other circuits.
I could not possibly have been more clear as to who and what I was referring to. Please don’t respond to my attempt at common courtesy and thinking of your feelings by making vaguely threatening statements like “I regard it as a darned good thing you qualified that post with regards to me”.
I posted my clarification out of respect for you, when I found out that my post ended up being immediately after yours. In these arguments on gun control which you and I have been in, I hope you will do some back-Searching and see that we have nearly always behaved cordially towards each other, even if we disagree on several key points.
There was no need for the display you just made, and I’m not the other people you seem to almost enjoy fighting tooth-and-nail with on this subject. If you are not going to show me the same level of courtesy that I show you, then just tell me so I can move along.
This is true, but it does not convey the entire story, or effect, as it were. Witness what happened when the “right to privacy” was established w.r.t. abortion. Suddenly, across the nation, abortion is legal.
Prohibition led to the Volstead Act, which passed quite quickly and to the surprise of many political analysts of the time, IIRC.
The point is “political posturing”. If anti-gun supporters are able to preface every argument with the words “As we all know, the Supreme Court decided, in its landmark decision of March 2003 that there is NO RIGHT WHATSOEVER FOR ANY INDIVIDUAL TO BE ARMED, then it only follows that we immediately ban…”, then we know how the winds of change will swing politically.
Likewise, imagine the political points from the other side: “As we all know, the Supreme Court decided, in its landmark decision of March 2003 that the RIGHT of the INDIVIDUAL to be armed is GUARANTEED in that most Holy of writs, the CONSTITUTION, then it only follows that we immediately reject this attempt to ban…” Same magnitude of effect, I should imagine.
There have been some close decisions in the legislatures at times, and sometimes the issue of the month can explode into legislation that makes sweeping changes that no one expected.
I beg to differ. I still don’t know who you were referring to, except that it wasn’t me.
Your first post was pretty hostile, Anth, and it rubbed me the wrong way when the very first target of your ire was “lawyers.” Since we’ve had at least three attorneys provide substantive, well-reasoned posts in this thread, my first thought was that you were attacking us. I’m glad you clarified with respect to me, but how about Realhoops and Spavined Gelding? And if it’s not them you’re after, who are these “lawyers” who have made you “sick to shit” because they “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”? And can you see how such unsupported characterizations might be a little off-putting to those of us of the lawerly persuasion?
Nevertheless, you’re absolutely correct that we’ve always been cordial, and I for one plan to keep it that way. I have tons of respect for you as a poster, in gun threads and otherwise, and I apologize if I left you with any contrary impression. I wish only that you would clarify or reconsider some of the comments you made above.
Now, on to the substance of your reply:
Neither is a particularly apt comparison, in my opinion. Roe v. Wade established a new, univesally applicable right. By contrast, if the Supreme Court were to rule against an individual right to bear arms under the Second Amendment, that decision would merely permit the application of the the patchwork of federal, state, and local gun legislation. In short, nothing changes, whereas Roe required big time changes overnight.
As for Prohibition, it took darned near 100 years of an organized Temperance movement to gain the solid public majority that led to amending the Constitution and passing the Volstead Act. it was hardly a surprise by the time it finally happened. It would take a similar level of public support to do anything like that with private firearm ownership. I honestly cannot see that happening in this country. The states can already do pretty much whatever they want with regard to firearms, under existing law. Nothing’s stopping them except democracy.
Could the states and the feds regulate private firearms almost out of existence under a collective rights framework? Of course. But there are a zillion things legislators could do, and darned few that they would do. Like it or not, this country has decided to be armed to the teeth with only minor restrictions, and that is not changing any time in the foreseeable future.
Well, minty, as usual you’ve given me some good points to consider. I’m always happy to learn from polite people.
I think you are right on the Roe v Wade issue. I guess it’s almost the opposite, isn’t it? Roe v Wade eliminated a patchwork of laws, whereas interpreting the 2nd Amendment in an absolutely collectable sense encourages a patchwork?
I didn’t mean my original post in here to be hostile, but rather to express frustration. I’m frustrated that there does not seem to be any clear direction or agreement on this issue from either side, and part of me really longs for some final, absolute “this is the way it is, this is what it means, so stop fighting about it everybody!” Mind you, wanting a firm decision doesn’t mean my fundamental opinions and beliefs are any different, but I do hope that the SC does in fact make a firm decision - one way, or the other. I hope they agree with the interpretation I’ve come to believe, obviously, but still…I just want them to do something on it.
Your frustration is understandable, Anthracite. The Court has avoided these issues like the plague for a long time. And while a definitive answer from the Supreme Court would sure clear up a lot of these arguments, it’s worth remembering that Emerson is really the only case that isn’t in lockstep with the others.
As for predicting what the court would do if they took up the individual/collective issue, I’m not sure. The easy answer is that it’s a politically conservative court, but politics and the law don’t always align perfectly. I suspect that, once again, O’Connor and Kennedy would be the swing votes, and neither has ever given any indication of how they view the Second Amendment.
Sorry, minty green but the specious reasoning is on your end. In fact, your post contradicts your position. If courts accept that the holding isn’t dicta, then it isn’t dicta especially in light of your position that you must look to what the courts have said rather than what you want them to say.
You’ve argued that Emerson fits dicta theory. Even accepting that as true, I’ve shown you several cases that fit the same pattern that are not treated as dicta. Therefore, you can’t argue that a given set of circumstances universally leads to the conclusion it’s dicta.
You then want to argue that Emerson is dicta despite the fact that both the Ninth and Fifth Circuits treat it as law (not just the Ninth Circuit as you claim.) In light of your statement that the law is what the courts say it is, then Emerson is emphatically not dicta. And, again, the fact that the Ninth Circuit didn’t find Emerson precedential is due to the fact that the circuits are coequals, not because Emerson is dicta as you claim. The AUSA in Texas as well as the US government do not treat the Second Amendment holding in Emerson as dicta – they don’t like it but they don’t say it’s dicta. You can mock the view of advocates all you want, but when the court and those who practice before it say something isn’t dicta, it clearly isn’t dicta especially in light of your eminently reasonable position that “the law is what the courts say it is, not what you want it to be.”
You then say that it has to be applied in an outcome-determinative way to not be dicta. This is a standard invented by you. This ignores the fact that a case that is never cited again is still good law. You’re trying to add criteria to aid your argument.
You simply cannot argue that “the law is what the courts say it is” in one breath then argue theory backed only by a dictionary when it benefits your argument. I’m simply applying your standard when analyzing whether it’s dicta. You can call that “specious reasoning” all you want, but I’ve offered more than a dictionary definition and repeated assertions that the case fits.
It’s fine with me if you don’t want to argue it any more. I’ve made my point using your criteria and have shown that Emerson is seen by the courts as good law. If something is seen as good law by the courts then it is, by definition, not dicta. You can hate Emerson, you can say it’s a minority view, but you can not say it’s dicta. Well, of course you can, but you’ll be wrong as I’ve shown.
As an aside, I find it quite ironic that you rail against those who say “people” means “people” because they’re ignoring what the courts have said and then turn around and offer a dictionary definition and try to ignore what the courts have said.
Can someone else answer me, then? If Miller had proved that his weapon was suitable to militia use, would the NFA been likely overturned on Second Amendment grounds?
Wow, a lot of people yelling about something that is pretty simple.
“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.”
The intent was to keep states from being vassal states of an all-powerful federal government (didn’t work). The only way the founding fathers knew how to do this was via militias - standing armies would have been WAY too expensive at the time. The only way they could have militias at the time was to have armed citizens - armories and especially weaponry training also being WAY too expensive at the time.
So they made a fucked-up law, with the letter going one way and the intention going the other - because the letter was the only way they knew how to achieve the intent. But now, that’s no longer true. So justices that are strict textualists have different opinions than those that try to go on legislative intent.
The real discussion shouldn’t be over what it means but what it should mean. And then we should amend the Constitution to make it that.
Oh, THAT’s what you’re getting at. The answer is no. The statute as a whole would not be overturned merely because some of its applications may be unconstitutional.
If Miller had shown that the shotgun was suitable for military use, the Supreme Court would then have had to inquire whether Miller was himself entitled to possess it under the Second Amendment. That means resolving whether it’s an individual or collective right, the question they failed to reach in that case.
Even if they had determined it was an individual right–which I doubt that Court would have done, considering the undeniable substantive effect they gave to the militia clause–the NFA would only have been unconstitutional as applied in that case. Future cases would have had to resolve for themselves whether each weapon was covered by the scope of the Second Amendment, and likely whether the defendant was an individual within the scope of the amendment (remember, no boys, women, or old folks allowed, plus there’s all those nontextual additions the NRA likes, such as no felons, crazy people, or drug users).
Would it be safe to say, however, that you yourself would agree with the NRA that these sorts of people should be an example of the limitation of either the collective or the individual right? I mean…you call out the NRA alone in this sentence, but really, that specifically is a pretty reasonable stance that I feel that most reasonable people would concur with.
Sure, I’d agree. Just goes to show that not even the NRA believes the right to bear arms “shall not be infringed.” And hey, I like how you cast the debate in terms of what’s “reasonable.” Now we just need to work out the details. 
No, it isn’t. A simple review of the statements of the framers of the Constitution will show exactly what they meant by “the people.” The question is not even remotely debatable. There’s a large and clear body of text that very unambiguously states peaceful law-abiding citizens had the right to own arms.
I defy you to find signifcant statements to the contrary.
Well sure, reasonable is good. Maybe you can illuminate me - are there any absolute rights outlined as being recognized by the USC? I do not believe that any are absolute, but then I am not certain legally if there may be an exception.
And if there are no absolute rights, then the 2nd must also be recognized as being non-absolute.
There is an argument used by gun control proponents which has been termed the “nuclear strawman”. This says “since arms is not clearly defined, what prevents an individual from claiming that they need to have a nuclear weapon as an arm?” It’s sort of silly from one standpoint, but then again…there isn’t really a concrete, absolute ruling on the limitations of the term “arms”. I mean on a Constitutional basis, yes? This may sound like a spurious argument, but I am being serious - has the USC ever ruled that there was no Constitutional “Right” to have nuclear weapons, or weapons of mass destruction? Yes, they sort of did in Miller, I’m gathering, with their bit on what the militia would use. But (and please correct me, maybe I’m not quoting you properly), I think what you said earlier is that if Miller had gone the other way, only that specific portion of the NFA would have been over-ruled.
What I’m getting at is - of course, it is silly (IMO) to think that private individuals can and should employ or keep fully-functioning clearly military arms, such as nukes, M1A’s, Harrier Jump Jets, or Aircraft Carriers.
But unless and until the SC rules a bit more clearly, I think there seems to be a lack of clarity in there. And part of the basis for that is the lack of clarity on collective versus individual intent.
And another thing that comes up too, but gets somewhat pushed aside - the 2nd Amendment is not just about guns. Yes, we’ve mentioned nukes, but on the other side of the extreme - the 2nd Amendment, in my view, was intended to recognize a right to have knives, shuriken, baseball bats, clubs, and - and here is where a lot of people may disagree with me - fists.
There is a large amount of text written by the founding fathers on the basis of the common man keeping weapons as a defence against tyranny, both locally and from abroad. But I keep finding serious implications and explicit terms that seem to say that the 2nd 's purpose may also be deeper - that of the right of protecting your individual life, and of self-defense. But I do not know. 
It would be interesting to be able to prove that the right to “personal self defense” is recognized by the terms and (equally importantly?) by the intent of the writers. It’s something I have been thinking about much lately.
I would love to put in web-format all of the research I’ve done and why I came to the conclusions that I have, but I don’t have time right now. However, since this issue shows no sign of going away in this Century, I suppose I do have some leeway…
And as the Ninth Circuit discusses, their statements also demonstrate exactly what they mean by “a well regulated Militia.” Since the founders thought “Militia” was important enough to put in the amendment–the only time when the founders thought the purpose was important enough that it had to go into the text–it should properly be read with both “Militia” and “people” in mind.
Anthracite: I am aware of no exceptions to [ul][li]The 3rd Amendment; []The requirenment of probable cause supported by oath or affirmation for a warrant to be issued in the 4th (though warrants themselves are not always required);[]The grand jury requirement in the 5th (though the text explicitly establishes one exception); [/li][li]Double jeopardy (where the sticking point is what “double jeopardy” means);[/li]The right to a jury trial in suits at common law where the amount in controversy exceeds $20.[/ul]That’s in addition to a number of generic guarantees, like “due process” or the ban on “cruel and unusual punishment.” In fact, except for speech and press, the usual constitutional inquiry in Bill of Rights guarantees is whether the case is within the scope of the guarantee, not whether it is “reasonable” to craft an exception.
Almost forgot the accused’s right to the assistance of counsel in all criminal prosecutions.
Anthracite wrote:
Apparently minty and a few others may have missed this post…
So you agree that the founders had in mind an individual right, as well as a collective right, to arms? You must then also agree that the Circuit courts have erred in their interpretations.
Gotta disagree. From the decision:
It appears to me that they did briefly consider asking whether Miller was entitled to possession, by way of asking whether he was a member of a militia, but the Court either considered the question a foregone conclusion and thus not worth asking, or they thought the question for some other reason shouldn’t be asked. Subsequent cases have sometimes inserted a “defendant must show militia membership” requirement, citing Miller, but they seem to have pulled that out of thin air, since no such requirement appears in Miller.
Does it matter that the “arms” that were available then are nothing at all like the “arms” that are available today? I’m not trying to flame or anything here, I’m genuinely curious whether you would concede that even if the framers’ could be shown to have clearly intended that there be an individual right to own any type of firearm then available it should not necessarily follow that the language used would mean an individual right to own any type of firarm ever available? While I don’t think the “but then it would mean anyone should be able to own a nuke” argument is particularly persuasive, I think it does raise a valid issue concerning how technology and advances in the firearms industry comes into play here?
I’m quite sure that this has probably been discussed before in other threads, but when I tried to search my computer kept timing out.
Oh, and on another note raised earlier in this thread… I, too, appreciate the generally civil tone of most of these posts on a very “heated” issue. I personally took no offense to Anthracite’s “sick to shit” statement… I gathered he was talking more about people holding themselves out to be experts in the media than people like me who will stand tall and claim not to be an expert on this issue at all.