Interesting developments in the Parker appeal

[legaleagle_45]

Hugh wrote:

I'm confused about something ... I thought that the only person who had standing had been denied a handgun permit ... meaning that there was no standing for the issue of how long guns must be stored ... yet they struck down the laws regarding the storage of long guns ... even though there was no standing?

The safe storage law applies to all firearms generally. The evidence of the case demonstrates that Heller also owned long guns which he stored outside of the District precisely because of the safe storage law. Thus, the ruling on the safe storage law should withstand an attack as "mere dicta" which I presume will be one of the arguments asserted by the District on Monday when its response to to the motion from Heller to amend the stay of mandate is due.

 

[ilbob]

Really, the courts are not this stupid. Once something is determined to be a right, courts see through obvious attempts to restrict that right.

While it would be nice if what you are saying was actually true, sadly, history has shown that the courts are more interested in enforcing their own judicial edicts in these areas than protecting individual rights.

The courts do not determine our rights, nor does the constitution. The constitution does enumerate a few of our rights, but the courts have almost always sided with the state when there is any kind of conflict between the rights of individuals and the power of the state. I can't think of any significant cases at all in the last 50 years where the courts ultimately sided with the individual over the state.

 

[hugh damright]

The evidence of the case demonstrates that Heller also owned long guns which he stored outside of the District precisely because of the safe storage law.

Why would Heller store long guns in another district? Couldn't they be stored in a DC home if the bolts were removed or some such thing, such that they were stored in an inoperable condition?

In comparison, I live off the Blue Ridge Parkway which is National Park Service land and guns must be inoperable. I don't see how I could leave my guns at home and then take the NPS to court as if I had standing.

 

[legaleagle_45]

Why would Heller store long guns in another district?

Although I have many talents, being Carnac the Magnificent is not one of them.

All I can report is that Heller owns some long guns but that they are stored in a neighboring state. Beyond that, we would need to question Heller directly for his motivations and rationale.

 

[Kharn]

hugh damright:
You need a permit to have a long-gun in DC, he might not have that, or they might be considered MGs by DC's hilarious legal definition.

Kharn

 

[hugh damright]

My intended question was not "what are Heller's personal reasons for storing guns out of DC" but rather "how does Heller's storing guns out of DC give him standing on the storage issue"?

I am getting an impression that the court misspoke when they said that the storage law was unconstitutional, because they had denied standing on that issue and had no business voicing an opinion on it, and that the rush to find some way for Heller to have standing on the storage issue is disingenuous. I am not convinced that is the situation, but it seems to give that appearance.

 

[legaleagle_45]

I am getting an impression that the court misspoke when they said that the storage law was unconstitutional, because they had denied standing on that issue and had no business voicing an opinion on it

One of the arguments advanced by DC was that because they allowed long guns it was ok to ban handguns. Part of the opinion, necessary to the decision, was that the allowance of disabled long guns does not satisfy the 2nd and thus the Districts arguments to the contrary were without merit.

 

[hugh damright]

The idea that inoperable guns don't satisfy the 2nd seems to be based upon the idea that the 2nd regards shooting burglars ... or rather, the assertion that the 2nd regards shooting burglars seems calculated to make the storage law appear unconstitutional. Because if we stick with the traditional idea that the federal protection of our individual RKBA is as it relates to militia, then even if we are all militia, the storage law would appear to satisfy the 2nd because militia duty can wait a minute while someone puts a bolt in his rifle.

Anyhow ... another thing I don't understand ... if the SCOTUS is presented with an argument that the Second Amendment was intended to be binding nationally ... can the SCOTUS refuse that argument and still rule that the Second Amendment is binding nationally based upon the 14th "Amendment" (for instance), even though no such argument was made? Or would the SCOTUS be obliged to rule that the Second Amendment is not binding nationally, even though they believe that it is binding, because the argument presented to them was insufficient?

 

[ctdonath]

IIRC, the $25K figure came from an interview with the guy pushing the case, or some similarly reliable source.
They're not taking donations.

 

[ctdonath]

IIRC, the $25K figure came from an interview with the guy pushing the case, or some similarly reliable source.
They're not taking donations.

 

[SalTx]

As I cannot, presently, donate any significant amount of money to this cause (i see they aren't accepting anyway), I will offer my prayers in hopes of the most favorable outcome for our 2nd amendment rights and causes. I offer these prayers because I have seen the suffering of innocent people at the hands of evil men, and worse, of governments. I believe that all humans have a NATURAL right to defend thier lives and the lives of those in thier care as best they can and ANY malicious intent to restrict or eliminate that right should be fought with all necessary and available assistance. This is a righteous struggle.

 

[FreshTapCoke]

Because if we stick with the traditional idea that the federal protection of our individual RKBA is as it relates to militia, then even if we are all militia, the storage law would appear to satisfy the 2nd because militia duty can wait a minute while someone puts a bolt in his rifle.

I think the storage law allows satisfaction of the "Keep" part of the 2nd but it may be construed to interfere with the "Bear" portion of it.

Can an arm really be born if it is required to be stored in a useless state? I think that works no more than an arm being kept title wise though guarded by the state.

 

[lacoochee]

Because if we stick with the traditional idea that the federal protection of our individual RKBA is as it relates to militia,

That is not the historical perspective, that is the anti-2A perspective from the past 40 years. The militia part of the 2A amendment is subordinate to the Right of the people to Keep and Bear Arms shall not be infringed.

A well regulated press, being necessary to the security of a free state, the right of the people to keep and bear pens, shall not be infringed.

Read it this way without the obfuscating cloud of rhetoric in your subconscious mind from the past 40 years or so and it becomes very clear that the well regulated part is an example of why the right to keep and bear arms shall not be infringed.

The quote from my signature:

* "[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms."
---James Madison,The Federalist Papers, No. 46.

makes it abundantly clear what the founders had in mind when they included the second amendment. They had just fought an armed insurrection against their own country and won, they were hardly going to turnover their arms to the new revolutionary government.

 

[hugh damright]

That is not the historical perspective [that the federal protection of our individual RKBA is as it relates to militia], that is the anti-2A perspective from the past 40 years. The militia part of the 2A amendment is subordinate to the Right of the people to Keep and Bear Arms shall not be infringed.

The Second Amendment does not limit the States. But the States cannot pass gun laws which go too far and interfere with the federal militia power. That is not some modern anti-2nd perspective, it is the original intent, the historical perspective, and constitutional law.

Actually, I think it is the textual analysis approach, which claims that the militia clause is just some subordinate preamble, that was invented in the last 40 years.

 

[legaleagle_45]

Actually, I think it is the textual analysis approach, which claims that the militia clause is just some subordinate preamble, that was invented in the last 40 years.

I agree with you up to a point. We can not and should not ignore the declaration, however the right protected is broader than the limits which would otherwise be permissable if the declaration was standing alone.

 

[lacoochee]

Actually, I think it is the textual analysis approach, which claims that the militia clause is just some subordinate preamble, that was invented in the last 40 years.

Nope, the text has always meant what it meant and it has largely been in the last 40 years that the "militia" argument has been put forth. Then there is the little problem that the Bill of Rights is not the State Bill of Rights it is the Bill of Rights for the People, the States are dealt with later in the constitution.

You know there really is no point in this, I am not going to convince you, you can search this forum there are multiple threads where the argument that it's an individual right to keep and bear arms is presented far better than I can. Actually read the decision of the Circuit Court they do a pretty bang up job of determining that it is an individual right as well.

 

[publius]

I can't think of any significant cases at all in the last 50 years where the courts ultimately sided with the individual over the state.

How about US vs Lopez?

Although the law was rewritten and repassed the next year, it was a victory for limited government and individual rights. It is true that a few Supreme Court Justices believe that the more recent decision in Gonzalez vs Raich means that the federal Gun Free School Zones act would be upheld if challenged again.

 

[hugh damright]

Nope, the text has always meant what it meant and it has largely been in the last 40 years that the "militia" argument has been put forth. Then there is the little problem that the Bill of Rights is not the State Bill of Rights it is the Bill of Rights for the People, the States are dealt with later in the constitution.

The federal protection of our personal RKBA does not come from the Second Amendment, and so this fixation on the text of the Second Amendment is improper. As the SCOTUS explained in Presser v Illinois (1886), the 2nd does not limit the States, but the States cannot ban guns because it would conflict with the federal militia power. Again, this is not something that came up in the last 40 years, it is traditional and historical constitutional law. The federal protection of our individual RKBA is as it relates to militia.

The USBOR is a federal BOR intended to protect the rights of the people and the States against the federal government. It makes no sense to me to say that it is a BOR for the people and not the States ... the Tenth Amendment being the "States' Rights Amendment" seems to be a little problem for your construction.

 

[ilbob]

I can't think of any significant cases at all in the last 50 years where the courts ultimately sided with the individual over the state.

How about US vs Lopez?

Although the law was rewritten and repassed the next year, it was a victory for limited government and individual rights. It is true that a few Supreme Court Justices believe that the more recent decision in Gonzalez vs Raich means that the federal Gun Free School Zones act would be upheld if challenged again.

Note the use of the word significant. The end result of that particular decision was nothing. The court had a chance to say that interstate commerce means actual interstate commerce, not mere possession of something that may have once passed from one state to another, but they chose not to do so.

 

[ctdonath]

The federal protection of our personal RKBA does not come from the Second Amendment

What part of "...the right of the people to keep and bear arms shall not be infringed" do you derive this notion from?

 

[alan]

The fact?? that The Second Amendment applies only to the federal government, but not to the states has never ceased to amaze me. Of course, I'm neither trained in constitutional law nor any other variety of law, however it does seem curious that among others The First and Fourth Amendments have been held to apply to the states. They have, haven't they?

ilbob writes:
Quote:
I can't think of any significant cases at all in the last 50 years where the courts ultimately sided with the individual over the state.

How about US vs Lopez?

Although the law was rewritten and repassed the next year, it was a victory for limited government and individual rights. It is true that a few Supreme Court Justices believe that the more recent decision in Gonzalez vs Raich means that the federal Gun Free School Zones act would be upheld if challenged again.

Note the use of the word significant. The end result of that particular decision was nothing. The court had a chance to say that interstate commerce means actual interstate commerce, not mere possession of something that may have once passed from one state to another, but they chose not to do so.

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Seems odd to me that The Judiciary, supposedly an INDEPENDENT branch of government, the others The Executive and The Legislative branches, almost never sides with the individual, otherwise The Citizen, in opposition to The Executive and or Legislative Branches of government, though I certainly be missing something interesting.