Plagarization of 2A work
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Thread: Plagarization of 2A work

  1. #1

    Plagarization of 2A work

    Sorry, I haven't posted in while due other obligations that require my attention,(U.S. Navy). I have had time to do some research and talk with some people though, so I plagarized pretty much everything here. It took a while and you might recognize some of the work.My apologies for the long read. First, concerning the SCOTUS. This is what has been said:
    1. Scalia, Roberts, and Alito would vote to support an interpretation of the Second Amendment as an individual right subject to reasonable restrictions
    2. Thomas would support a pro-Second individual rights interpretation and could probably be willing to overturn some major federal firearms laws.
    3. Stevens will definitely support a collective rights interpretation.
    4. Souter, Ginsburg and Breyer would probably support a collective rights interpretation. Ginsburg has made some decisions that came out good for gun owners.
    5. Kennedy seems to like decisions that are vague and keep people coming back to the judiciary.
    Now USC Title 10, Subtitle A, Part 1, Chapter 13, Section 311 says:
    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the
    United States who are members of the National Guard.
    (b) The classes of the militia are -(1) the organized militia, which consists of the National Guard and the Naval Militia; and(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
    From the SCOTUS blog:
    Here is the way the Court phrased the granted issue:
    “Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”
    The first listed section bars registration of pistols if not registered before Sept. 24, 1976; the second bars carrying an unlicensed pistol, and the third requires that any gun kept at home must be unloaded and disassembled or bound by a lock, such as one that prevents the trigger from operating.
    The Court did not mention any other issues that it might address as questions of its jurisdiction to reach the ultimate question: did the one individual who was found to have a right to sue — **** Anthony Heller, a D.C. resident — have a right to challenge all three of the sections of the local law cited in the Court’s order, and, is the District of Columbia, as a federal enclave, even covered by the Second Amendment. While neither of those issues is posed in the grant order, the Court may have to be satisfied that the answer to both is affirmative before it would move on to the substantive question about the scope of any right protected by the Amendment. The D.C. Circuit ruled that the Amendment does apply to the District because of its federal status, subject to all provisions of the Constitution. At this point, therefore, it appears that the Court’s review may not reach a major question — does the Second Amendment also protect individual rights against state and local government gun control laws? But a ruling by the Court recognizing an individual right to have a gun almost surely would lead to new test cases on whether to extend the Amendment’s guarantee so that it applied to state and local laws, too. The Court last confronted that issue in Presser v. illinois, in 1886, finding that the Amendment was not binding on the states. Some observers who read the Court’s order closely may suggest that the Court is already inclined toward an “individual rights” interpretation of the Second Amendment. That is because the order asks whether the three provisions of the D.C. gun control law violate “the Second Amendment rights of individuals.” But that phrasing may reveal very little about whether the Amendment embraces an individual right to have a gun for private use. Only individuals, of course, would be serving in the militia, and there is no doubt that the Second Amendment provides those individuals a right to have a gun for that type of service. The question the Court will be deciding is, if there are individuals who want to keep pistols for use at home, does the Second Amendment guarantee them that right. Just because the Second Amendment protects some individual right does not settle the nature of that right. One of the interesting subsets of the question the Court will be confronting is whether the 1939 case of U.S. v. Miller is a precedent for what the Second Amendment means — individual or collective right. If that decision did find in favor of a collective right, the current Court would have to decide whether this was a binding precedent, or whether it should be overruled. Chief Justice John G. Roberts, Jr., has already taken a stand on that question. At his nomination hearing before the Senate Judiciary Committee, he said that “the Miller case sidestepped” the issue of whether the Amendment protected a collective or an individual right. He added: “An argument was made back in 1939 that this provides only a collective right, and the Court didn’t address that…. So people try to read into the tea leaves about Miller and what would come out on this issue, but that’s still very much an open issue.” The local law at issue in Heller has been discussed widely as a sweeping ban on private possession or use of handguns. But the Court order granting review took it a step further: the one section that will be at issue that goes beyond handguns is the provision that requires that any gun kept at home be unloaded and disassembled, or at least be locked. Thus, that provision also applies to rifles and shotguns kept at home, in terms of whether those weapons would remain “functional” in time of emergency if that provision were upheld. That part of the order appeared to widen the inquiry in a way that the local residents who challenged the law had wanted.

    From the Congressional report from 1982 http://www.constitution.org/mil/rkba1982.htm -No fewer than twenty-one decisions by the courts of our states have recognized an individual right to keep and bear arms, and a majority of these have not only recognized the right but invalidated laws or regulations which abridged it. Yet in all too many instances, courts or commentators have sought, for reasons only tangentially related to constitutional history, to construe this right out of existence. They argue that the Second Amendment's words "right of the people" mean "a right of the state" — apparently overlooking the impact of those same words when used in the First and Fourth Amendments. The "right of the people" to assemble or to be free from unreasonable searches and seizures is not contested as an individual guarantee. Still they ignore consistency and claim that the right to "bear arms" relates only to military uses. This not only violates a consistent constitutional reading of "right of the people" but also ignores that the second amendment protects a right to "keep" arms. These commentators contend instead that the amendment's preamble regarding the necessity of a "well regulated militia . . . to a free state" means that the right to keep and bear arms applies only to a National Guard. Such a reading fails to note that the Framers used the term "militia" to relate to every citizen capable of bearing arms, and that the Congress has established the present National Guard under its own power to raise armies, expressly stating that it was not doing so under its power to organize and arm the militia. When the first Congress convened for the purpose of drafting a Bill of Rights, it delegated the task to James Madison. Madison did not write upon a blank tablet. Instead, he obtained a pamphlet listing the State proposals for a bill of rights and sought to produce a briefer version incorporating all the vital proposals of these. His purpose was to incorporate, not distinguish by technical changes, proposals such as that of the Pennsylvania minority, Sam Adams, or the New Hampshire delegates. Madison proposed among other rights that "That 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." In the House, this was initially modified so that the militia clause came before the proposal recognizing the right. The proposal finally passed the House in its present form: "A well regulated militia, being necessary for the preservation of a free state, the right of the people to keep and bear arms shall not be infringed." In this form it was submitted into the Senate, which passed it the following day. The Senate in the process indicated its intent that the right be an individual one, for private purposes, by rejecting an amendment which would have limited the keeping and bearing of arms to bearing "For the common defense". The earliest American constitutional commentators concurred in giving this broad reading to the amendment. When St. George Tucker, later Chief Justice of the Virginia Supreme Court, in 1803 published an edition of Blackstone annotated to American law, he followed Blackstone's citation of the right of the subject "of having arms suitable to their condition and degree, and such as are allowed by law" with a citation to the Second Amendment, "And this without any qualification as to their condition or degree, as is the case in the British government." William Rawle's "View of the Constitution" published in Philadelphia in 1825 noted that under the Second Amendment: "The prohibition is general. No clause in the Constitution could by a rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both." The Jefferson papers in the Library of Congress show that both Tucker and Rawle were friends of, and corresponded with, Thomas Jefferson. Their views are those of contemporaries of Jefferson, Madison and others, and are entitled to special weight. A few years later, Joseph Story in his "Commentaries on the Constitution" considered the right to keep and bear arms as "the palladium of the liberties of the republic", which deterred tyranny and enabled the citizenry at large to overthrow it should it come to pass.
    In his commentaries on the constitution JOSEPH STORY, LL. D., DANE PROFESSOR OF LAW IN HARVARD UNIVERSITY, wrote: In order to clear the question of all minor points, which might embarrass us in the discussion, it is necessary to suggest a few preliminary remarks. The constitution, contemplating the grant of limited powers, and distributing them among various functionaries, and the state governments, and their functionaries, being also clothed with limited powers, subordinate to those granted to the general government, whenever any question arises, as to the exercise of any power by any of these functionaries under the state, or federal government, it is of necessity, that such functionaries must, in the first instance, decide upon the constitutionality of the exercise of such power. It may arise in the course of the discharge of the functions of any one, or of all, of the great departments of government, the executive, the legislative, and the judicial. The officers of each of these departments are equally bound by their oaths of office to support the constitution of the United States, and are therefore conscientiously bound to abstain from all acts, which are inconsistent with it. Whenever, therefore, they are required to act in a case, not hitherto settled by any proper authority, these functionaries must, in the first instance, decide, each for himself, whether, consistently with the constitution, the act can be done. If, for instance, the president is required to do any act, he is not only authorized, but required, to decide for himself, whether, consistently with his constitutional duties, he can do the act. So, if a proposition be before congress, every member of the legislative body is bound to examine, and decide for himself, whether the bill or resolution is within the constitutional reach of the legislative powers confided to congress. And in many cases the decisions of the executive and legislative departments, thus made, become final and conclusive, being from their very nature and character incapable of revision. Thus, in measures exclusively of a political, legislative, or executive character, it is plain, that as the supreme authority, as to these questions, belongs to the legislative and executive departments, they cannot be re-examined elsewhere. Thus, congress having the power to declare war, to levy taxes, to appropriate money, to regulate intercourse and commerce with foreign nations, their mode of executing these powers can never become the subject of reexamination in any other tribunal. So the power to make treaties being confided to the president and senate, when a treaty is properly ratified, it becomes the law of the land, and no other tribunal can gainsay its stipulations. Yet cases may readily be imagined, in which a tax may be laid, or a treaty made, upon motives and grounds wholly beside the intention of the constitution. The remedy, however, in such cases is solely by an appeal to the people at the elections; or by the salutary power of amendment, provided by the constitution itself. But, where the question is of a different nature, and capable of judicial inquiry and decision, there it admits of a very different consideration. The decision then made, whether in favour, or against the constitutionality of the act, by the state, or by the national authority, by the legislature, or by the executive, being capable, in its own nature, of being brought to the test of the constitution, is subject to judicial revision. It is in such cases, as we conceive, that there is a final and common arbiter provided by the constitution itself, to whose decisions all others are subordinate; and that arbiter is the supreme judicial authority of the courts of the Union. Let us examine the grounds, on which this doctrine is maintained. The constitution declares, (Art. 6,) that " This constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties, etc. shall be the supreme law of the land." It also declares, (Art. 3,) that " The judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States and treaties made, and which shall be made under their authority." It further declares, ( Art. 3,) that the judicial power of the United States " shall be vested in one Supreme Court, and in such inferior courts, as the congress may, from time to time, ordain and establish." Here, then, we have express, and determinate provisions upon the very subject. Nothing is imperfect, and nothing is left to implication. The constitution is the supreme law; the judicial power extends to all cases arising in law and equity under it; and the courts of the United States are, and, in the last resort, the Supreme Court of the United States is, to be vested with this judicial power. No man can doubt or deny, that the power to construe the constitution is a judicial power.1 The power to construe a treaty is clearly so, when the case arises in judgment in a controversy between individuals.2 The like principle must apply, where the meaning of the constitution arises in a judicial controversy; for it is an appropriate function of the judiciary to construe laws.3 If, then, a case under the constitution does arise, if it is capable of judicial examination and decision, we see, that the very tribunal is appointed to make the decision. The only point left open for controversy is, whether such decision, when made, is conclusive and binding upon the states, and the people of the states. The reasons, why it should be so deemed, will now be submitted. In the first place, the judicial power of the United States rightfully extending to all such cases, its judgment becomes ipso facto conclusive between
    the parties before it, in respect to the points decided, unless some mode be pointed out by the constitution, in which that judgment may be revised. No such mode is pointed out. Congress is vested with ample authority to provide for the exercise by the Supreme Court of appellate jurisdiction from
    the decisions of all inferior tribunals, whether state or national, in cases within the purview of the judicial power of the United States; but no mode is provided, by which any superior tribunal can re-examine, what the Supreme Court has itself decided. Ours is emphatically a government of laws, and
    not of men; and judicial decisions of the highest tribunal, by the known course of the common law, are considered, as establishing the true construction of the laws, which are brought into controversy before it. The case is not alone considered as decided and settled; but the principles of the decision are held, as precedents and authority, to bind future cases of the same nature. This is the constant practice under our whole system of jurisprudence. Our ancestors brought it with them, when they first emigrated to this country; and it is, and always has been considered, as the great security of our rights, our liberties, and our property. It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice, or will of particular judges. A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.

    And from The Firearms Owners' Protection Act (1986)
    Sec. 1(b). The Congress finds that -- (1) the rights of citizens (A) to keep and bear arms under the second amendment to the United States Constitution; (B) to security against illegal and unreasonable searches and seizures under the fourth amendment; (C) against uncompensated taking of property, double jeopardy, and assurance of due process of law under the fifth amendment; and (D) against unconstitutional exercise of authority under the ninth and tenth amendments; require additional legislation to correct existing firearms statutes and enforcement policies.

    If only the good people of New Orleans had read and know the The Firearms Owners' Protection Act of 1986….. I hope you can find this useful.
    Jim
    "Americans have the will to resist because you have weapons. If you don't have a gun, freedom of speech has no power."
    Yoshimi Ishikawa

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  3. #2

    ooops

    I didn't have enough space to add these so here they are:
    U.S. Supreme Court cases that refer to the right to keep and bear arms and also quote the militia clause:
    1. Houston v. Moore, 18 U.S. 1 (1820).
    2. United States v. Schwimmer, 279 U.S. 644, 650 (1929).
    3. United States v. Miller, 307 U.S. 174 (1939).
    4. Adams v. Williams, 407 U.S. 143, 149-51 (1972) (Justice Douglas's dissent).
    5. Lewis v. United States, 445 U.S. 55, 65 (1980).
    6. Printz v. United States, 521 U.S. 898, 938-939 (1997) (Justice Thomas's concurrence).
    U.S. Supreme Court cases that refer to the right to keep and bear arms without even mentioning the militia clause:
    1. Dred Scott v. Sandford, 60 U.S. 393, 416-17, 449-51 (1857).
    2. United States v. Cruikshank, 92 U.S. 542, 551 (1876).
    3. Presser v. Illinois, 116 U.S. 252, 264-66 (1886).
    4. Logan v. United States, 144 U.S. 263, 286-87 (1892).
    5. Miller v. Texas, 153 U.S. 535, 538-39 (1894).
    6. Brown v. Walker, 161 U.S. 591, 635 (1896) (Justice Field's dissent).
    7. Robertson v. Baldwin, 165 U.S. 275, 280 (1897).
    8. Maxwell v. Dow, 176 U.S. 581, 597 (1900).
    9. Kepner v. United States, 195 U.S. 100, 123-24 (1904).
    10. Trono v. United States, 199 U.S. 521, 528 (1905).
    11. Twining v. New Jersey, 211 U.S. 78, 98 (1908).
    12. Adamson v. California, 332 U.S. 46, 78 (1947) (Justice Black's dissent).
    13. Johnson v. Eisentrager, 339 U.S. 763, 784 (1950).
    14. Knapp v. Schweitzer, 357 U.S. 371, 378 n.5 (1958).
    15. Konigsberg v. State Bar, 366 U.S. 36, 49 & n.10 (1961).
    16. United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).
    17. Casey v. Planned Parenthood, 505 U.S. 833, 848 (1992), quoting
    18. Poe v. Ullman, 367 U.S. 497, 543 (1961) (Justice Harlan's dissent);
    19. Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977);
    20. Albright v. Oliver, 510 U.S. 266, 306-07 (1994) (Justice Stevens's dissent);
    21. Roe v. Wade, 410 U.S. 113, 169 (1973) (Justice Stewart's concurrence).
    22. Muscarello v. United States, 524 U.S. 125, 143(1998) (Justice Ginsburg's dissent, joined by Chief Justice Rehnquist and Justices Scalia and Souter)
    Jim
    "Americans have the will to resist because you have weapons. If you don't have a gun, freedom of speech has no power."
    Yoshimi Ishikawa

  4. #3

    Great Info!!!

    Thanks SubHntr!!! Nothing wrong with being busy cause of the NAVY. Got Nukes in my family. First and Finest LAEX 688, would have joined myself but the gimp leg causes issues. :) Reading through this information just makes me sick. So many arguments against gun ownership and so many stupid restrictions. I can only hope that SCOTUS has enough brains to rule right on this whole issue. I guess they really have no choice. I can only see one alternative and it is not pretty for anyone. I'm glad I'm not the only one to write novels. ;) Thanks again for all the research. I'm going to copy this one for future reference without refferal.
    They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.
    ---Benjamin Franklin, Historical Review of Pennsylvania, 1759.

  5. #4

    Exclamation MORE INFO ON 2A. Please read and pass around.

    An excerpt from the following link:

    http://www.usdoj.gov/olc/secondamendment2.pdf

    "As developed in the analysis below, we conclude that the Second Amendment secures a personal right of individuals, not a collective right that may only be invoked by a State or a quasi-collective right restricted to those persons who serve in organized militia units"

    Other links to read:

    http://en.wikipedia.org/wiki/Second_...s_Constitution

    http://www.law.ucla.edu/volokh/common.htm

    http://historymatters.gmu.edu/d/5200

    http://www.law.cornell.edu/anncon/html/amdt2_user.html
    Jim
    "Americans have the will to resist because you have weapons. If you don't have a gun, freedom of speech has no power."
    Yoshimi Ishikawa

  6. #5

    Exclamation MORE INFO ON 2A. Please read and pass around part 2

    Last edited by SubHntr; 04-09-2008 at 06:19 PM.
    Jim
    "Americans have the will to resist because you have weapons. If you don't have a gun, freedom of speech has no power."
    Yoshimi Ishikawa

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