Abandoning the Second Amendment

[publius]

At the time of the ruling, there was no argument and no evidence that Miller could have provided that would have changed the outcome. And please remember that the so-called short-barreled Trench gun actually had a barrel length of 20 inches, longer than the 18 inch limit imposed by the NFA.

An 18 inch one would be just as appropriate for the same military purpose, would it not?

 

[Kodiaz]

Miller was a poor guy with a still. The ATF found his still but it was nonfunctional so one of those guys arrests him for his sawed off shotgun under the new at that time law. He gets a pro bono lawyer(no right to a lawyer back then the state didn't pay) this lawyer beats the case in local federal court. While the lawyer is out of town papers come back for him to file a brief for the Supreme court. Well he wasn't paid and when he got back it was too late. The court hears only the prosecutor's argument and they find Miller guilty. Miller is never seen again so he does no jail time. The 34 NFA stands because no court ever accepts a hearing for this again.

Amazing isn't it.

 

[publius]

The Court did NOT send anything back to be answered. It provided the final ruling on the issue.

US vs Miller:

We are unable to accept the conclusion of the court below, and the challenged judgment must be reversed. The cause will be remanded for further proceedings.

 

[Graystar]

We are unable to accept the conclusion of the court below, and the challenged judgment must be reversed. The cause will be remanded for further proceedings.

Yes, exactly.

Here's is what you're all missing. If the Supreme Court had not found anything wrong with the lower court's ruling, it would have let it stand. They didn't. They reversed the ruling. A reversal means that you replace a decision with a contrary decision. They reversed because they believed the lower court was wrong.

If the Supeme Court believed that there wasn't enough evidence to rule (which was impossible because this was a question of law, not of evidence) they would have vacated the lower court's ruling...leaving the door open for a new ruling which could have been the same or different. That's not what they did. They reversed.

 

[publius]

Miller again:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.

So if, during these "further proceedings" which the Supreme Court spoke about, it came within judicial notice that an 18 inch Trench Gun would have worked just as well for trench warfare as a 20 inch one, the resulting decision could not have been the same one the lower court had previously reached?

And what do you say to horge's point, that a short shotgun might come in handy for potential future conflicts?

And what of my point, made in jest on the previous page? The NFA applies to sawed off shotguns, but also to other things. Silencers, used by military snipers. Machine guns, commonly carried by soldiers. There is a movement afoot to make 50 caliber rifles NFA weapons. What if Miller had had a machine gun, instead of a shotgun? Would they still be talking about muskets of less than bastard bore? Might it have somehow come within judicial notice that those are militia weapons, and that therefore the NFA is in violation of the 2nd?

 

[Graystar]

So if, during these "further proceedings" which the Supreme Court spoke about, it came within judicial notice that an 18 inch Trench Gun would have worked just as well for trench warfare as a 20 inch one, the resulting decision could not have been the same one the lower court had previously reached?

No. That's because the issue cannot be revisited once the higher court has reversed a ruling. Like I said...the ruling was reversed, not vacated.

You can't simply read the opinion of the court and forget about the rules and procedures of the court system. You have to learn what terms like reversed and vacated and remanded mean in the legal sense.

The issue was decided. There was no going back to it for the Miller case.

And what of my point, made in jest on the previous page?

That darn Miller! If only he had had a machine gun.

This is pure speculation, but the Court's procedure for determining the type of weapon indicates their belief that law determines the type of weapon. So basically, "you can only have what the law says you can have" is the way I see the Court's view of the situation. The failed challenge to the assault weapon ban in California would seem to be in line with that thinking.

I'm not saying that's right, mind you. I'm simply saying that's how it appears the court viewed the situation. That's not my view.

 

[Gatman]

I'm not an American.
I am however, largely the product of American colonialism,
and it is with no trifling affection that I regard the United States;
It is neither with minor concern that I observe recent trends in your country,
else I would not presume to post my thoughts here.
Bear with me, if you will.


"A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed."


To this foreigner, the Second Amendment is clearly framed to preserve
a necessary, well regulated militia. It refers to a separate natural
"right to keep and bear arms".

The Constitutional Amendments seem to me, primarily a list of limits imposed
on your Federal Government, to preserve freedoms and freedom.

The Second Amendment is notable in that it not only exalts the
people's ability to collectively take up arms in defense of freedom,
but by default calls on the people to maintain said ability.

It is thus a citizen's duty to keep and bear, because that preserves
what the Second Amendment seeks to preserve: readiness.

US vs. Miller resulted in the dubious analysis that a sawed-off shotgun was
not a suitable weapon for use by a militia, and therefore was not protected
by the Second Amendment. I feel the Court was incompetent to form any
opinion on what constitutes a weapon that "has some reasonable relationship
to the preservation or efficiency of a well-regulated militia".

It was incompetent because the nature and needs of war change rapidly.
Since one cannot predict what weapons the future will bring, nor what
war will be like in days to come, it is foolish to set into stone
what types of weapons are or aren't suitable for militia use.

A lot has changed since the 1700's, and troops no longer face off by forming
ordered lines. If war were to visit the native soil of the United States,
there would likely be some very ugly house-to-house fighting,
in multistory structures and very tight spaces involving many innocents,
encouraging the use of short firearms and even handguns.

Shortened shotguns. Handguns. Battle rifles. Crew-served weapons.
Ownership of such weapons and maintaining proficiency in their use qualifies
as necessary towards individual readiness to fight in a militia.

There will still be conventional battles, usually on foreign shores.
That is what a professional Armed Forces are for.
However, in the modern age, the enemy is increasingly a coward.
The enemy hides among civilians, and targets them,
violating all accepted conventions of war.
The enemy will be insidious, avoiding direct conflict with your military
and law enforcement, while attacking the foundations of America.

Terrorism is now recognizable as an act of war.
At what point does foreign-state sponsored crime constitute an act of war?
At what point does foreign-state sponsored illegal immigration constitute an invasion?

If/when unconventional aggressions reach a critical level, there may well
be fighting on US soil. Serious fighting that may preclude rapidly bringing
the full weight of your vaunted military to bear upon it.

Recent history has suggested how even the most powerful military on the planet
can be stretched too thin; how the most powerful nation on the planet
can be too slow to respond to massive calamity. The military, like disaster relief,
is a branch of centralized bureaucracy. Law enforcement is a more local
organ, but is often not sized to meet massive conflict.

In the towns and villages, in the boroughs, districts and slums,
the common people -and only the common people- are near enough
and numerous enough to make a difference immediately.
They must be ready to organize and take up arms at a moment's notice,
in defense of all that they hold dear --freedom most of all.


By propounding endlessly on a right to keep and bear arms, as
essentially a selfish/personal liberty, Americans may be missing the point
of the Second Amendment. .

Again, there is an independent "right to keep and bear", otherwise
the Second Amendment would not have referred to it.

The Second Amendment howevermentions a "right to keep and bear arms",
(and warns the Federal government not to mess with that right)
because the Second Amendment is also a call to Americans
--all Americans-- to maintain their readiness.

A readiness to provide and take up arms in organized defense of flag;
to take up arms in organized defense of freedom.
If your country's Constitution exalts and calls for such readiness,
then look about: does the word 'abandonment' come to mind?




Deeply concerned,
horge

Would you mind if I forwared that to the Professor who wrote my Textbook? The book makes no mention of the 2nd amendment. It has it listed in the copy of the bill of rights and thats it.

By the way, have you ever considered immigrating? If you have I will lobby to have the laws changed so you could run for governor at the least.

 

[mordechaianiliewicz]

I would vouch for you being naturalized if it was that simple.

You understand the 2nd exactly. It protects an individual right, and it also implies a literal "miltia." Citizen-soldiers.

 

[horge]

Hi, Gatman
You honor me overmuch !
Still, lest someone mistake my silence...

While I would fight for things that America represents;
and stand allied with Americans against their enemies;

I am proud to be born, and remain, a Filipino.


horge

 

[publius]

No. That's because the issue cannot be revisited once the higher court has reversed a ruling.

OK, I am not a lawyer, and don't know the difference, but the question which occurs to me is, if a judgement is final, what would be the point of "further proceedings"?

Another one which occurs to me is, why was the Stewart ruling vacated and not reversed in light of Raich?

It seems to me that there is no way to interpret the Stewart case in light of the Raich ruling and come up with a ruling consistent with the previous one.

 

[Graystar]

OK, I am not a lawyer, and don't know the difference, but the question which occurs to me is, if a judgement is final, what would be the point of "further proceedings"?

Most court cases comprise a series of rulings. All sorts of motions are made by lawyers, and those are either granted or denied by the judge hearing the case. Any of those rulings can be appealed. In the Miller case, a demurrer was made. A demurrer is a plea in response to an allegation (as in a complaint or indictment) that admits its truth but also asserts that it is not sufficient as a cause of action (as in, “Yes he had the sawed-off shotgun, but the Second Amendment makes it okay to possess.”)

Judge Heartsill Ragon agreed and sustained the demurrer. This ruling effectively halted the prosecution of Miller. But with the Supreme Court’s reversal of this ruling, the prosecution of Miller could have continued (if he wasn’t dead.)

Another one which occurs to me is, why was the Stewart ruling vacated and not reversed in light of Raich?

Read the actual ruling. At the end it says “AFFIRMED in part and REVERSED in part.”

 

[publius]

Read the actual ruling. At the end it says “AFFIRMED in part and REVERSED in part.”

OK, I must be looking in the wrong place because I don't see that.

It says this:

Aug 27 2004 Application (04A176) to extend the time to file a petition for a writ of certiorari from September 8, 2004 to October 8, 2004, submitted to Justice O'Connor.
Aug 30 2004 Application (04A176) granted by Justice O'Connor extending the time to file until October 8, 2004.
Sep 28 2004 Application (04A176) to extend further the time from October 8, 2004 to November 7, 2004, submitted to Justice O'Connor.
Sep 28 2004 Application (04A176) granted by Justice O'Connor extending the time to file until November 7, 2004.
Nov 5 2004 Petition for a writ of certiorari filed. (Response due December 6, 2004)
Dec 6 2004 Brief of respondent Robert Wilson Stewart, Jr. in opposition filed.
Dec 6 2004 Motion for leave to proceed in forma pauperis filed by respondent.
Dec 22 2004 DISTRIBUTED for Conference of January 7, 2005.
Jun 6 2005 DISTRIBUTED for Conference of June 9, 2005.
Jun 13 2005 Motion for leave to proceed in forma pauperis filed by respondent GRANTED.
Jun 13 2005 Petition GRANTED. Judgment VACATED and case REMANDED for further consideration in light of Gonzales v. Raich, 545 U.S. ____ (2005).
Jul 15 2005 JUDGMENT ISSUED.

 

[Graystar]

OK, I must be looking in the wrong place because I don't see that.

Look in the link you gave to the ruling:

Stewart

 

[publius]

I saw that, but that was Kozinski's opinion (9th circuit). That's the one the Supreme Court vacated. I'm still left wondering why they vacated the opinion instead of reversing it, since no interpretation of Stewart in light of Raich could possibly reach the opinion which Kozinski reached.

 

[Graystar]

Oh I see what the confusion is. The judgment that was vacated was the Ninth Circuit’s ruling of “affirmed in part and reversed in part”...not Stewart’s conviction. Basically, it is as if the Ninth Circuit had never made their ruling. The Supreme Court is telling them to rule again, but this time consider Gonzales v. Raich.

Of course, since it’s the reversal of Stewart’s conviction that was vacated, he is once again, convicted. I haven’t heard anything more on this case. Stewart was convicted of planning to murder the judge that presided over his trial, so he’s in jail for a long time anyways. My guess is that he’s given up on it.

 

[Dannyboy]

Not to hijack the thread but I have a question of sorts. I've been arguing with a guy in one of my classes over interpretations of the COnstitution. He can't get past the Militia clause and thinks the 2nd does not convey an individual right. I found quotes from Washington, Jefferson, and Madison basically saying they thought it to be an individual right. Here's my question: These guys were instrumental in writing the Constitution, so shouldn't their view pretty much put an end to the debate? I mean, if I write a poem and then explain what it means then it's no longer open to interpretation.

 

[telomerase]

Unfair criticism

It's not like we're picking on the Second Amendment... we've abandoned the rest of them as well.

 

[Meplat]

Sir, i disagree with some of your comments...
1."if war comes to the US", no way is any soldier's army going to offend our shores. period..

Not as long as they fear an armed general population.

2." a lot has changed since 1700's", yes it has..we have USAF, States National Guard, National, State and Local Law Enforcement..if this is not enough to address threats by irregulars, then heaven help us...because no rag tag assembly of citizenry will aid in this one no matter what you say/ arms yourself with..

Bullfeathers. Where were YOU when armed gangs roaming and looting neighborhoods in the aftermath of Katrina decided that SOME neighborhoods were not as easy to glean as others? I was in one of those neighborhoods that banded together. The National Guard, USAF, and local law enforcement was powerless to intervene. Would not have mattered one way or another to us whether it was domestic scum or foreign invaders.

3. your romantiziced notion of the second amendment is shared by many...

Including those who wrote it. See, they took on and kicked the arses of the most powerful government in existence at the time by hanging on to those "romanticized notions."

War is not something to be taken lightly as we have found out throughout numerous "conflicts" since WWII...

No sir, it is certainly not.

but you just have to experience the "dogs of war" to see that arms in and of themselves do not "peace" make, just the opposite..Sir, even warriors have codes of honor, we don't have to debase ourselves in the pursuit of "justice". As we now know, "War" is being fought for a number of contradictory reasons..political, economical, moral...it's nice to make decisions from the safety zone..

Were it not true that arms, and more importantly, the fortitude to use them, do indeed make peace, we'd be subjects to the Crown of England right now, who themselves would be under the thumb of Nazi rulers....like THAT chain of command too much?

War zones, on the other hand, is hell!!...we seem to think that might makes right, but they aren't buying our "ideals"..."they" are just in fear of being obliterated if they don't comply witht the misguided demands of the U.S....our idea that somehow "they" cannot coexist without our intervention in their affairs is just the ticket we are buying..as i've said before, "they" have dealt/lived with ethnic or racial conflict for millenia...but We know better...so much for the high road... YMMV

Yeah. Damn shame we intervened against Hitler. He was SUCH a nice guy. Too bad we stopped "ethnic cleansing" in Balklands. And so sad that Saddam won't be able to kill his own countrymen by the thousands anymore.

 

[cz75bdneos22]

Not as long as they fear an armed general population.



Bullfeathers. Where were YOU when armed gangs roaming and looting neighborhoods in the aftermath of Katrina decided that SOME neighborhoods were not as easy to glean as others? I was in one of those neighborhoods that banded together. The National Guard, USAF, and local law enforcement was powerless to intervene. Would not have mattered one way or another to us whether it was domestic scum or foreign invaders.



Including those who wrote it. See, they took on and kicked the arses of the most powerful government in existence at the time by hanging on to those "romanticized notions."



No sir, it is certainly not.



Were it not true that arms, and more importantly, the fortitude to use them, do indeed make peace, we'd be subjects to the Crown of England right now, who themselves would be under the thumb of Nazi rulers....like THAT chain of command too much?



Yeah. Damn shame we intervened against Hitler. He was SUCH a nice guy. Too bad we stopped "ethnic cleansing" in Balklands. And so sad that Saddam won't be able to kill his own countrymen by the thousands anymore.

1. "not as long as...when has being armed stopped anyone from attack by a determined force. thanks but no thanks.

2.sorry about your situation, again you lived through it. it could have been otherwise..armed or not..believe what you want..

3. well, you have a fixed belief on what you are able to grasp of the available facts..the same objective has been accomplished by forces elsewhere without the benefit of what the "notions" are...but, of course...that all took place before they were enlightened by our founding fathers..

4. it's too simplistic a view...you've narrowed things down to those features of an issue/event which satisfy your concieved ideas of what happened.. but then, to understand complex(multi-dimensional) geo-political events..as everything in Life...sometimes logic simply just does not always prevail..i'll get back later!

 

[Meplat]

Ya know, your posts would be much more readable, and your thoughts much easier to follow it you would break your quotes and counters into segments that could be addressed line by line. I don't know whether you are deliberately obfuscating, or just not aware of a much easier format to address a post in.

1. "not as long as...when has being armed stopped anyone from attack by a determined force. thanks but no thanks.

It stopped attacks VERY recently by bands of maruding gangs on our own Gulf Coast. It stopped the looting of many Korean owned businesses in Los Angeles during the riots there. That's on a domestic front. If you doubt the determined nature of these attacks, then your head is in the sand as to police responses to 911 calls and the fact that they refused to answer them in certain areas. If you would like some history from futher back, I'd suggest you read about how Andrew Jackson, musket ball lodged in his chest and dysentery in his pants, and a good burning hatred for the British who had imprisoned and killed his parents in his heart led a rag-tag group of 4000 ol' boys from Kentucky to New Orleans and all points in between in 1814. I'll give you hint as to how the story ends. They kicked s*&t out of 12,000 well armed, well trained, highly motivated soldiers in the best military in the world at that time. Study the Battle of 1812, tell me that armed forces have never stopped anyone for being successfully attacked, and I'll gladly tell you once again "bullfeathers".

2.sorry about your situation, again you lived through it. it could have been otherwise..armed or not..believe what you want..

Didn't ask for any sympathy. Don't want any. Don't need any. And yes, I MIGHT not have survived, but I did. Had I gone down though, rest assured that some other innocent (probably several, as a matter of fact) would have survived in my stead, because I don't often miss. So my individual survival didn't mean a lot in the grand scheme of things...others in my community would have benefitted. AND if you think for even one second that those doing the pillaging weren't FULL WELL AWARE of which neighborhoods were safe to loot and which were not, then you are one blind puppy.

3. well, you have a fixed belief on what you are able to grasp of the available facts..the same objective has been accomplished by forces elsewhere without the benefit of what the "notions" are...but, of course...that all took place before they were enlightened by our founding fathers..

I will tell you this...I am "able to grasp" one hell of a lot more than you give me credit for. I am able to grasp the fact that the above sentence made no sense whatsoever.

4. it's too simplistic a view...you've narrowed things down to those features of an issue/event which satisfy your concieved ideas of what happened.. but then, to understand complex geo-political events..as everything in Life...sometimes logic simply just does not always prevail..i'll get back later!

Naw...I was in the middle of it. As to getting back to me, once you can do so coherently, I'll be glad to hear from you again. Your number 4 made only slightly more sense than your number 3 response. About the only thing that came through clearly was your condescending tone about "my concieved ideas of what happened." You know VERY little about it if you weren't HERE. What the media showed you was only a small sliver of things as they occurred.

 

[cz75bdneos22]

ok. i see that you have situational incidents that seem on face value to counter my assertions as to why people believe what they do....that's fair. it's true too. People are a funny bunch of folks. still, you or i don't seem to be addressing the ultimate principle involved behind these behaviors...while, there may be exception to every rule...i don't think you would support using those exceptions as the rule by which to conduct affairs. again, i point out that most people are genuinely well intentioned. they labor over seemingly straitforward information to arrive.. by logic, at decisions (choices) concerning matters of importance..and they come to this reason using the information that is available to them at a given time. But, know something..it's nice to be wrong..we(people) seem to have a knack for learning from our mistakes. there is a saying in spanish...from said to done, there's a whole way's in between..de dicho a hecho, es mucho el trecho..People do foolish things all the time..even seemingly intelligent people. what's more, it continues even when logic tells them otherwise and any rational person would have folded their cards. we can at least agree on that. some people have an uncanny ability to know that, i think. i never have been one to follow selective occurences, nor will i ever be. you may play with the cirscumnstances regarding any given situation, but that does not change the underlying principle. it never stopped anyone from trying though. that's human behavior for ya! just when we think logic prevails, primal instincts can and often override our seat of reason. that can drive anyone crazy..don't ask me how i know this!

 

[Lobotomy Boy]

ok. i see that you have situational incidents that seem on face value to counter my assertions as to why people believe what they do....that's fair. it's true too.

This is usually the result of dogmatic theory coming into direct conflict with harsh reality. That's why most academics have to hide in the bowels of college campuses--they are so dogmatic about their ideological beliefs that the second they were exposed to harsh reality they would wither like a hot-house flower in a blizzard.

Edited to add: I don't mean this as a criticism of CZ75BD's position. It just struck me as an example of a roadblock I often reach when trying to have a rational discussion with a dogmatic ideologue on either the right or the left. The fact that CZ made this comment indicates his thinking is not hindered by such road blocks.

 

[publius]

The Supreme Court is telling them to rule again, but this time consider Gonzales v. Raich.

Yes, and I'm wondering why they sent them off to rule again, when the conclusion they must reach is obvious from the instruction to rule "in light of Gonzalez v Raich." Why not simply reverse the ruling of the 9th and be done with it?

 

[Graystar]

Yes, and I'm wondering why they sent them off to rule again, when the conclusion they must reach is obvious from the instruction to rule "in light of Gonzalez v Raich." Why not simply reverse the ruling of the 9th and be done with it?

Nothing is obvious when it comes to appeal decisions. There could be several reasons why the court thought it best to allow the Ninth to rule again. You’d have to ask Justice O’Connor.

The original point, however, is that lower courts will proceed based on the instruction of the superior court. The wording in the Miller opinion is clear…”reversed”. That means that the lower court cannot rule on the issue again, and must accept the superior court’s contrary ruling. Any lawyer can confirm this. It’s only laypersons that continue to believe that, in Miller, the Court sent the issue back down to the lower court. That simply isn’t true.

 

[Meplat]

ok. i see that you have situational incidents that seem on face value to counter my assertions as to why people believe what they do....that's fair. it's true too. People are a funny bunch of folks. still, you or i don't seem to be addressing the ultimate principle involved behind these behaviors...while, there may be exception to every rule...i don't think you would support using those exceptions as the rule by which to conduct affairs. again, i point out that most people are genuinely well intentioned. they labor over seemingly straitforward information to arrive.. by logic, at decisions (choices) concerning matters of importance..and they come to this reason using the information that is available to them at a given time. But, know something..it's nice to be wrong..we(people) seem to have a knack for learning from our mistakes. there is a saying in spanish...from said to done, there's a whole way's in between..de dicho a hecho, es mucho el trecho..People do foolish things all the time..even seemingly intelligent people. what's more, it continues even when logic tells them otherwise and any rational person would have folded their cards. we can at least agree on that. some people have an uncanny ability to know that, i think. i never have been one to follow selective occurences, nor will i ever be. you may play with the cirscumnstances regarding any given situation, but that does not change the underlying principle. it never stopped anyone from trying though. that's human behavior for ya! just when we think logic prevails, primal instincts can and often override our seat of reason. that can drive anyone crazy..don't ask me how i know this!

I give up with this one. Is there an interpreter in the house who can translate gibberish into coherent English?