guns

[Rhum_Runner]

*Originally posted by Jaakko *
**So how does the 9th amendment work then? It doesn’t look very useful if securing any given property right requires explicit protection for that right in the CotUS. **

This is the first time I have seen a 9th amendment issue raised in a gun debate.

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I’m not sure what that means, (is anyone?) but it seems to be saying that the first eight amendments are not an exhaustive list, that is there are other rights that the Constitution protects that are not spelled out in so many words. I don’t see what it ads to the gun debate when guns are specifically mentioned in the Second Amendment.

[Weird_AL_Einstein]

*Originally posted by minty green *
**No time machine added. Just ask the courts. Of course, the gun crowd doesn’t like their answer, but still. **

Shall we ask the Fifth Circuit Court of Appeals? No? Which “crowd” was it, exactly, that didn’t like that answer?

unclviny: A lot of posters have mentioned here that this issue has been quite thoroughly chewed over already in this forum, and there’s a lot of truth in that. I personally am not opposed to a gun control debate, but after a while it just feels like you are going around and around in circles.

For example:

*Originally posted by Jaakko *
**But if you want to have something debate, then how about gun registration? I’m having a hard time seeing how it’s any different from registering automobiles, something accepted and commonplace. **

I got into this issue in this thread last year. At length. Great length, as you will see if you try to read through it.

A lot of us have simply just said everything we can say on this issue, multiple times. Everything, that is, until there is some genuinely new development on it in the real world, which provides us with fresh debate fodder.

[minty_green]

Ooooh, Emerson. I’m so terribly afraid of dicta, Al. :rolleyes:

http://boards.straightdope.com/sdmb/showthread.php?threadid=93594
http://boards.straightdope.com/sdmb/showthread.php?threadid=114012
http://boards.straightdope.com/sdmb/showthread.php?threadid=98112
http://boards.straightdope.com/sdmb/showthread.php?threadid=122490

[Weird_AL_Einstein]

Heh. Minty, I respect your ability to make an orderly retreat, well covered by your cunning deployment of the rolleyes smiley. “Just ask the courts” becomes “Just ask the courts…except this one, because what they said here doesn’t count.”

Never mind that, as was pointed out to you in at least one of those threads, other lawyers disagree with your legal analysis. Of course, that guy had a pre-existing position on the issue, just as you do. So we are confronted with the spectacle of two lawyers disagreeing. Imagine that.

Hmmmm…I wonder what would happen if someone with no ax to grind, or even someone…say, a law professor…who tended to be liberal but was capable of being objective, took an honest look at what the second amendment really means?

[Taboo]

I am a second ammendments rights sister myself. I personally think the gun debate is only going on because the american public is not being educated and therfore is only watching a news brief every night about the few people who died due to the abuse of guns. Nothing in there about the lives saved everyday. This is almost as bad as the airbag issue! Maybe we (the sheep) should open up our textbooks and rediscover our forefathers reasoning behind our second ammendment rights…lets see the right to bear arms …blah blah blah…protect my family from invasion…blah blah oh yeah and something about overthrowing our government if it becomes corrupt…ahhhhhhhhhh there it is …hmmm…government nervous? Because i cant remember the last time i have seen so many anti gun groups form or supported by our media.

[unclviny]

All my guns were bought through ffl’s (federally licensed gun dealers), i went through a background check EVERY time i purchased a gun, and yet people still say “we just want guns registered”, the way i see it MY GUNS HAVE ALREADY BEEN REGISTERED, my issue here is the constant attack on my rights as a gun owner.

unclviny

[Jaakko]

*Originally posted by Rhum Runner *
**
This is the first time I have seen a 9th amendment issue raised in a gun debate.
I’m not sure what that means, (is anyone?) but it seems to be saying that the first eight amendments are not an exhaustive list, that is there are other rights that the Constitution protects that are not spelled out in so many words. I don’t see what it ads to the gun debate when guns are specifically mentioned in the Second Amendment. **

I wasn’t talking about just guns anymore. The impression I got from Andros was that property rights in general don’t have the same protected status as guns. But, as the right to property seems to be rather central to the American ideal, it would only make sense that the 9th amendment could be used to stop infringement on that other property (ie. other than guns).

I could be wrong, but then again, IANAAL.

[minty_green]

*Originally posted by Weird_AL_Einstein *
Heh. Minty, I respect your ability to make an orderly retreat, well covered by your cunning deployment of the rolleyes smiley. “Just ask the courts” becomes “Just ask the courts…except this one, because what they said here doesn’t count.”

On the other hand, I have no respect for your citation of Emerson alone, even apart from the fact that its individual rights analysis is nonbinding dicta, when you failed to cite the nine other Circuit Court of Appeals opinions actually holding that the Second Amendment confers only a collective right to bear arms, and not an individual right:

1. Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999).
2. United States v. Wright, 117 F.3d 1265 (11th Cir. 1997).
3. Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), cert. denied 516 U.S. 813.
4. Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995), cert. denied 516 U.S. 813.
5. United States v. Hale, 978 F.2d 1016 (8th Cir. 1992).
6. United States v. Oakes, 564 F.2d 384 (10th Cir. 1977).
7. U.S. v. Warin, 530 F.2d 103 (6th Cir. 1976), cert. denied 426 U.S. 948.
8. Stevens v. U.S., 440 F.2d 144 (6th Cir. 1971).
9. Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942).

And that’s not even counting the dozen or so additional federal district court opinions holding the exact same thing. Like I said, I ain’t afraid of no goddamn dicta from Emerson. You, on the other hand, are so terrified of the actual state of the case law rejecting your position that you refuse to even acknowledge its existence.

Never mind that, as was pointed out to you in at least one of those threads, other lawyers disagree with your legal analysis

Bullshit. Find me one lawyer in those other threads who said Emerson’s individual rights analysis is not dicta. Then find me one lawyer in those other threads who says those nine cases I listed above do not hold that the Second Amendment confers a collective right, not an individual one.

And of course, if you had been keeping up with the rest of the class, you would have noted that I am only stating what the law is, not what it should be. In fact, I believe that the intent of the Second Amendment was to confer an individual right (though one that is much more constrained by the militia clause than anything you would accept). Oh well, the courts say we’re wrong. The horror!

Hmmmm…I wonder what would happen if someone with no ax to grind, or even someone…say, a law professor…who tended to be liberal but was capable of being objective, took an honest look at what the second amendment really means?

Great, so you can’t find any actual law to support your position, so you cite some random schmuck. Real impressive, Al.

[minty_green]

Proving that there is nothing new under the sun: Gun Control - The ninth amendment. In short, the ninth amendment confers no rights whatsoever. It merely prevents the governement from denying an asserted right on the basis that it was not enumerated in the Constitution. If they have some other basis for denying the asserted right, the Ninth Amendment is irrelevant.

Plus another past gun debate that I missed last night: The police have no duty to protect individuals (yep, another gun debate)

[Captain_Amazing]

Originally posted by David B *
**
Sure there is! But it involves first inventing a time machine in order to go back to the framers of the Constitution, slapping them around a bit, and asking, “What the HELL did you mean when you wrote that?! Why couldn’t you just spell it out without the compound sentence?!”*

Well, here’s the original proposed text. Is it better or worse, in your opinion?

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

[Rhum_Runner]

*Originally posted by Jaakko *
I wasn’t talking about just guns anymore. The impression I got from Andros was that property rights in general don’t have the same protected status as guns. But, as the right to property seems to be rather central to the American ideal, it would only make sense that the 9th amendment could be used to stop infringement on that other property (ie. other than guns).

If you are looking for a general protection of property in the Constitution I think you will find it in Amendment V.

[Jaakko]

So it does, but if Andros is correct it apparently doesn’t cover (state) restrictions on the property that can be owned. Yet the there was an amendment for Prohibition, but then again nothing of the sort was needed for the War on Drugs.

You can consider me officially confused.

[Rhum_Runner]

Well the 5th ammendment applies to the states through the 14th, see *Chicago, B.& Q. R. Co. v. Chicago, * 1897 (IIRC) so outright takings are unconstitutional by both Fed. and State actors. The states do have wide lattitude under their general police power to regulate property (through zoning and criminal law etc) but even this has limits. Those limits, as you can imagine, are complicated. Now I am confused too! What was the point of this again?

[Jaakko]

Well, at least now I know that the issue isn’t very clear at all.

[Kalashnikov]

*Originally posted by David B *
**Mangetout said:

Sure there is! But it involves first inventing a time machine in order to go back to the framers of the Constitution, slapping them around a bit, and asking, “What the HELL did you mean when you wrote that?! Why couldn’t you just spell it out without the compound sentence?!”

Hmmm. OK, yeah, I guess you’re right after all… **

We do have such a time machine - the written word (too bad it only goes one way in time )

Here’s one place to start: http://www.guncite.com/

While you may wish to verify these quotes from other sources, I’d like to point out that this site does debunk some quotes that cannot be verified.

[Joe_Cool]

minty, I know “it’s dicta!” is your rallying cry for anything you don’t like…But what do you say about US v. Miller, which held that the 2nd Amendment does, in fact, protect (not confer) an individual right, and upheld Miller’s conviction only on the (incorrect) grounds that the particular weapon in question did not have military application?

And yeah, you think it’s an individual right - for you. Your “nobody should be allowed to have a gun except me” attitude really shines through in these discussions. :rolleyes:

[minty_green]

*Originally posted by Joe_Cool *
minty, I know “it’s dicta!” is your rallying cry for anything you don’t like.

Nonsense. Look up “dicta” in the legal dictionary on Findlaw. That is why the Emerson individual rights discussion is dicta–it was not necessary to the outcome of the case. I believe every lawyer who has ever posted in any of these threads–including several who strongly support the private gun ownership–has agreed with me on that.

But what do you say about US v. Miller, which held that the 2nd Amendment does, in fact, protect (not confer) an individual right, and upheld Miller’s conviction only on the (incorrect) grounds that the particular weapon in question did not have military application?

I’d say you’re wrong: Miller does not, N-O-T, not say that the Second Amendment conferred an individual right. And of course, I shredded that very same argument from you a few months ago. Some people never learn, huh? But if you’re still so damn certain that Miller recognizes an individual right, go right ahead and show me that language. Here’s the case. Have at it.

[quote]
And yeah, you think it’s an individual right - for you. Your “nobody should be allowed to have a gun except me” attitude really shines through in these discussions. :rolleyes:

[QUOTE]
Cite, please? Or shall I just assume that you’re being a crybaby because you dislike my position and I keep destroying yours?

[minty_green]

Whoops, sorry. I shredded your claim that Miller says it’s an individual right on page 3 of that thread.

[Calenth]

Even though the relevant sections of the Emerson decision are not dicta – they’re necessary reasoning towards the ultimate conclusion – even if they were, that would not make the analysis in Emerson less logically valid, it would just mean they weren’t mandatory case law.

But the arguments would still be just as intellectually valid either way.

[Max_Torque]

*Originally posted by minty green *
1. Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999).
2. United States v. Wright, 117 F.3d 1265 (11th Cir. 1997).
3. Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), cert. denied 516 U.S. 813.
4. Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995), cert. denied 516 U.S. 813.
5. United States v. Hale, 978 F.2d 1016 (8th Cir. 1992).
6. United States v. Oakes, 564 F.2d 384 (10th Cir. 1977).
7. U.S. v. Warin, 530 F.2d 103 (6th Cir. 1976), cert. denied 426 U.S. 948.
8. Stevens v. U.S., 440 F.2d 144 (6th Cir. 1971).
9. Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942).

Didn’t I go through a bunch of these cases a few months ago and demonstrate that they are misreadings of Miller, stacked one on top of the other?

And to be fair, minty, you do tend to wave the dicta flag quite a bit.