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Thread: US Supreme Court going to decide on 2nd Amendment

  1. #11

    Talking

    Quote Originally Posted by ElZorro View Post
    for the "handshake".

    I appreciate the camaraderie and sincerity of your reply.

    Thanks again,
    ElZorro
    Quote Originally Posted by doublenutz View Post
    <Hand Shaking> Thank you for the clarification... my most sincere apologies for misinterpreting your posts, shortcoming of electronic communications media, I guess.
    AWwwww.... They made up.


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  3. #12
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    Talking

    Quote Originally Posted by ishi View Post
    AWwwww.... They made up.


    Ishi you're a crackup!:D
    MΟΛΩΝ ΛΑΒΕ

  4. #13

    Thumbs up

    Follow the case...
    http://pacer.cadc.uscourts.gov/docs/...3/04-7041a.pdf

    The Team...
    http://www.dcguncase.com/blog/

    D.C.ís defense of its gun ban is wrong, but the Supreme Court still needs to rule.
    http://dcguncase.com/blog/wp-content...s_9-24-071.pdf

    The problem...
    Many federal courts rely on U.S. v. Miller in which the Supreme Court remanded a case back to the District Court that had overturned the National Firearms Act of 1934. The District Court agreed with Miller that the NFA violated the 2nd Amendment. Justice McReynolds delivered the opinion of the Supreme Court that the weapon in question, a shotgun with a barrel of less than 18", was not known to the court to have use in the militia & therefore the NFA didn't conflict with the 2nd Amendment...
    http://publicola.mu.nu/archives/2005..._v_miller.html

    Among legal scholars, it is undisputed that the Supreme Court has said almost nothing about the Second Amendment. This article suggests that the Court has not been so silent as the conventional wisdom suggests. While the meaning of the Supreme Court's leading Second Amendment case, the 1939 United States v. Miller decision remains hotly disputed, the dispute about whether the Second Amendment guarantees an individual right can be pretty well settled by looking at the thirty-five other Supreme Court cases which quote, cite, or discuss the Second Amendment. These cases suggest that the Justices of the Supreme Court do now and usually have regarded the Second Amendment "right of the people to keep and bear arms" as an individual right, rather than as a right of state governments...

    http://www.cs.cmu.edu/afs/cs/user/wb...ist/miller.txt

    http://www.project21.org/P21NVBorelliGuns90507.html

    THE SUPREME COURT'S THIRTY-FIVE OTHER GUN CASES: WHAT THE SUPREME COURT HAS SAID ABOUT THE SECOND AMENDMENT
    http://www.davidkopel.com/2A/lawrev/35finalpartone.htm

    Keep It with the People
    http://www.davekopel.org/NRO/2000/Ke...the-People.htm

    Miller lacks clarity and is why Parker and or Heller is pivotal...

    The right of the people to keep and bear arms shall not be infringed!
    regardless of type, class of weapon or perceived purpose...

    Read the unabridged 2nd amendment...
    http://www.firearmsandliberty.com/unabridged.2nd.html

  5. #14

    Thumbs up

    The Second Amendment Foundation (SAF) is making some significant and breathtaking progress in the field of Second Amendment jurisprudence. SAF, together with Virginia attorney Alan Gura, has come up with an exquisite legal strategy to get the question of the Second Amendment as a fundamental, individual right squarely before the Supreme Court of the United States (SCOTUS) in the next two years.

    While it is shocking to most people, the SCOTUS has never really had a case squarely dealing with the Second Amendment as an individual right, and has never reached the issue of whether the Second Amendment even applies to states. (Remember, prior to the 14th Amendment, the Bill of Rights as a whole did not necessarily restrict state action.) The SAF strategy has included filing very “limited in focus” lawsuits in 2 different federal districts, the Dearth case in Ohio’s Southern District and the Hodgkins case in Texas’ Northern District, as well as the Parker case in the D.C. District. Why so many different, and costly, lawsuits to answer one question?

    Simple - two different strategies...

    The importance of the Parker (D.C. gun ban) case:
    http://www.buckeyefirearms.org/modul...ticle&sid=3591

  6. #15

    Here Is Something From My Archives About US v. Miller

    US v Miller

    Here is the main line of reasoning that shows what the Court actually said in U.S. v. Miller(1939)... and how it doesn't mean diddly.

    Misdirection

    Look at what the Court said here: "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." Referring to the text I put in bold, the Court said that they could not come to a conclusion without any evidence. The Court did not say that the "SHOTGUN HAVING A BARREL OF LESS THAN EIGHTEEN INCHES IN LENGTH" did not have "...SOME REASONABLE RELATIONSHIP TO THE PRESERVATION OR EFFICIENCY OF A WELL REGULATED MILITIA,..." If the Court had come to the conclusion that the sawed-off shotgun WASN'T a viable weapon for use in the militia, it would have said so. It didn't say so. It would have needed the same evidence to show it was as it would have needed to show it wasn't!

    Further in that same paragraph the Court said, "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." Judicial notice is: "n. the authority of a judge to accept as facts certain matters which are of common knowledge from sources which guarantee accuracy or are a matter of official record, without the need for evidence establishing the fact. Examples of matters given judicial notice are public and court records, tides, times of sunset and sunrise, government rainfall and temperature records, known historic events or the fact that ice melts in the sun." Here again, the Court is saying they don't know as a matter of record, don't have reference to any common knowledge, don't have a guaranteed source to refer to the fact in question, and can't say off the top of their head whether or not the sawed-off shotgun fit in the militia and, therefore, would require evidence to make the call.


    Pretense and Amending the Constitution by Rote

    The Court, without proper amendment, amended the the Constitution on its own by interjecting a requirement not present in the Constitution, nor has power been granted to Congress to legislate any such requirement - "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." - and any such infringement is expressly forbidden by Second Amendment that a weapon must be shown to have a viable place in the militia. The Court simply wrote their decision as if such a requirement existed. The Court even admitted to interpreting the Constitution. The Court cited Article I, Section 8, Clause (16): THE CONSTITUTION AS ORIGINALLY ADOPTED GRANTED TO THE CONGRESS POWER "TO PROVIDE FOR CALLING FORTH THE MILITIA TO EXECUTE THE LAWS OF THE UNION, SUPPRESS INSURRECTIONS AND REPEL INVASIONS; TO PROVIDE FOR ORGANIZING, ARMING, AND DISCIPLINING, THE MILITIA, AND FOR GOVERNING SUCH PART OF THEM AS MAY BE EMPLOYED IN THE SERVICE OF THE UNITED STATES, RESERVING TO THE STATES RESPECTIVELY, THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS." Then the Court said: "WITH OBVIOUS PURPOSE TO ASSURE THE CONTINUATION AND RENDER POSSIBLE THE EFFECTIVENESS OF SUCH FORCES THE DECLARATION AND GUARANTEE OF THE SECOND AMENDMENT WERE MADE. IT MUST BE INTERPRETED AND APPLIED WITH THAT END IN VIEW." How they pulled any arms qualification requirements out of that, I cannot fathom. Even if that requirement was in Article I, Section 8, Clause (16), it would have been vacated by the later dated(and therefore superseded by) the Second Amendment!!

    Word-smithing

    The Court was quite sneaky and devious in its wording with this non-ruling. Look at this: The Court said, "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." So, let's look at "WE ARE UNABLE TO ACCEPT THE CONCLUSION OF THE COURT BELOW ..." What does that tell you? It tells you that the Court didn't say that the conclusion of the court below was wrong, the Court said because there was no evidence presented, it cannot accept the conclusion. They said in the beginning that "In the absence of any evidence....we cannot say...". Then the Court continued with, "..AND THE CHALLENGED JUDGMENT MUST BE REVERSED. When ever the Court reverses a lower court ruling, it does not include anything like "...must be...". The Court did not reverse or vacate the judgment of the lower court. The Court didn't say the judgment IS reversed or vacated. "THE CAUSE WILL BE REMANDED FOR FURTHER PROCEEDINGS." The Court instructed the lower court to proceed further on the case, presumably, to have the needed evidence presented to support the lower court's conclusion that the NFA is unconstitutional by showing that the sawed-off shotgun is a viable weapon for the militia. Sadly, Miller had been murdered before the case had been concluded, and Layton(Miller's co-defendant) accepted a plea. There was no one left to continue the case. Don't forget, however, that this, for all intents and purposes, is moot in the light of the Second Amendment.



    Misdirection

    The Court's ducking of one aspect of "judicial notice" is also despicable. That "judicial notice" is the obvious capability of a sawed-off shotgun to deliver a lethal dose of shot. I would equate what a member of the militia can do with a sawed-off shotgun to a similar level of common knowledge with the common knowledge that if you place a chunk of ice in the sun, it will melt. Again, this is moot in the light of the prohibition placed upon all government to infringe upon the Right to Keep and Bear Arms in the Second Amendment.

    More "misdirection"

    It is not within the purview of the Court to up and say, "HEY! You are misinterpreting/misunderstanding what was said in this case!" Not until some other case is brought back up to the Court on appeal can the Court address this again. The Court did not uphold the NFA, but it didn't shoot it down, either. This case, US v. Miller is undecided to this very day. All the citing of US v. Miller as sealing the notion that Congress may infringe the RKBA if it has to do with interstate commerce is just as bogus. As I pointed out for the "militia" clause, the Second Amendment was ratified after the Commerce Clause, and the prohibition on Congress to infringe upon the RKBA in the Second Amendment would supersede any supposed power of Congress to infringe the right that might be misconstrued from the Commerce Clause.

    This from the Court in US v Miller TAKES THE CAKE! "MOST IF NOT ALL OF THE STATES HAVE ADOPTED PROVISIONS TOUCHING THE RIGHT TO KEEP AND BEAR ARMS. DIFFERENCES IN THE LANGUAGE EMPLOYED IN THESE HAVE NATURALLY LED TO SOMEWHAT VARIANT CONCLUSIONS CONCERNING THE SCOPE OF THE RIGHT GUARANTEED. BUT NONE OF THEM SEEM TO AFFORD ANY MATERIAL SUPPORT FOR THE CHALLENGED RULING OF THE COURT BELOW." Seems they conveniently "forgot" that the Second Amendment is a part of the Constitution and that the Second Amendment is, therefore, part of the Supreme Law of the Land, and "...anything in the constitution or laws of any state to the contrary (is) notwithstanding." It doesn't matter WHAT any state law or constitution has to say about the RKBA. THE COURT HAD(HAS) ALL IT NEEDED IN THE SECOND AMENDMENT! What the Court said here is no different than what some are doing now - looking to foreign law to make their rulings!

    Hope this helps.

    Woody

    Look at your rights and freedoms as what would be required to survive and be free as if there were no government. Governments come and go, but your rights live on. If you wish to survive government, you must protect with jealous resolve all the powers that come with your rights - especially with the Right to Keep and Bear Arms. Without the power of those arms, you will perish with that government - or at its hand. B.E. Wood

  7. #16
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    Quote Originally Posted by Bohemian View Post
    Follow the case...THE SUPREME COURT'S THIRTY-FIVE OTHER GUN CASES: WHAT THE SUPREME COURT HAS SAID ABOUT THE SECOND AMENDMENT
    http://www.davidkopel.com/2A/lawrev/35finalpartone.htm
    Bohemian Bro... this one is a really good, scratch that, EXCELLENT read!

    I actually have now book marked it!
    Last edited by doublenutz; 10-02-2007 at 12:31 AM.
    MΟΛΩΝ ΛΑΒΕ

  8. #17
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    Question

    Quote Originally Posted by Constitution Cowboy View Post
    US v Miller

    Here is the main line of reasoning that shows what the Court actually said in U.S. v. Miller(1939)... and how it doesn't mean diddly.


    Word-smithing

    The Court was quite sneaky and devious in its wording with this non-ruling. Look at this: The Court said, "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." So, let's look at "WE ARE UNABLE TO ACCEPT THE CONCLUSION OF THE COURT BELOW ..." What does that tell you? It tells you that the Court didn't say that the conclusion of the court below was wrong, the Court said because there was no evidence presented, it cannot accept the conclusion. They said in the beginning that "In the absence of any evidence....we cannot say...". Then the Court continued with, "..AND THE CHALLENGED JUDGMENT MUST BE REVERSED. When ever the Court reverses a lower court ruling, it does not include anything like "...must be...". The Court did not reverse or vacate the judgment of the lower court. The Court didn't say the judgment IS reversed or vacated. "THE CAUSE WILL BE REMANDED FOR FURTHER PROCEEDINGS." The Court instructed the lower court to proceed further on the case, presumably, to have the needed evidence presented to support the lower court's conclusion that the NFA is unconstitutional by showing that the sawed-off shotgun is a viable weapon for the militia. Sadly, Miller had been murdered before the case had been concluded, and Layton(Miller's co-defendant) accepted a plea. There was no one left to continue the case. Don't forget, however, that this, for all intents and purposes, is moot in the light of the Second Amendment.

    Interesting position. However, I am curious- Are you presenting this as THEORY or FACT?

    If factual- is it based on your interpretive experiences in the environment or an academic prowess.
    MΟΛΩΝ ΛΑΒΕ

  9. #18
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    Here we go again; Miller ad infinitum

    Woody, ole pal, you're mostly right, except for "The Court did not reverse or vacate the judgment of the lower court."

    The final words of the Miller decision are; "Reversed and remanded." Of course, this is not a complete nullification of the lower court's decision and applies only to the lower court’s judgment that the 1934 NFA was unconstitutional inasmuch as it was “an attempt [by the United States] to usurp police power reserved to the States”, which was the focus of the questioned judgment and the government’s challenge. The other part of it was that the NFA was a violation of the Second Amendment’s guarantees.

    The court's opening list of cite's was intended to show by precedent that it was OK for the U.S. to "usurp---police powers"; previous errors supporting the current error.

    The cite; “Aymette v. State of Tennessee” is essentially a cite of the relevant provision in the Tennessee State Constitution, to wit: "That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime."

    They could as easily have cited the Pennsylvania State Constitution’s equivalent provision: "The right of the citizens to bear arms in defense of themselves and the State shall not be questioned”; except that they apparently didn’t have a convenient court case to cite here.

    Notwithstanding that citing state case law in support of a nationally-applicable decision is clearly in error, the two state constitutions cited above are obviously in opposition as to the individual vs. collective right and whether the state may enact laws infringing the Second Amendment.

    My earlier post probably mistakenly implied that had Miller and Clayton been able to show that the short-barreled shotgun was "in common military use" they would have been home free. Such is clearly not the case, since the 1934 NFA was not nullified and they had failed to comply with its provisions.

    All things considered, the Court clearly vacated its duties, possibly because Miller was dead, Clayton had copped a plea, some attorney's egregious neglect to answer the subpoena would not have to be addressed and the case could be improperly concluded without holding over.

    As an aside, the Court did provide guidance to refute the attempt to equate “the Militia” to the National Guard. The court stated; “The Militia which the States were expected to maintain and train is set in contrast with Troops which they [307 U.S. 174, 179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia- civilians primarily, soldiers on occasion.”

    Clearly, the National Guards of the states are controlled, funded and a part of the “standing army”, somewhat analogous to what was then referred to as the “Select Militia”.

    FWIW,
    ElZorro
    Last edited by ElZorro; 10-02-2007 at 10:37 AM. Reason: grammar and content

  10. #19
    ElZoro,

    I've looked up Miller in the Government printing office; in Kopel's, Halbrook's, and Korwin's book Supreme Court Gun Cases; Cornell University and and elsewhere and only found one instance where "Reversed and Remanded" has been added at the end and that was at findlaw.com. "Reversed and Remanded" does not appear in any other reprint of US v. Miller. I think Findlaw.Com added that themselves.

    In all those other instances, the reprints all end with:

    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.
    Another thing I find interesting: It says the "cause" will be remanded for further proceedings, not the "case". I cannot find this verbiage in any other case after a random search of about 50 cases.

    And there is this: "we are unable to accept...". Not "we do not accept", but unable as in, "In the absence of any evidence..., we cannot say...".

    In just now doing a cursory search of about ten remanded cases, I find the verbiage in this passage from US v. Miller is unique and without precedent. Same for reversed cases. The Court generally makes it undeniably clear that a reversed and/or remanded case is reversed and/or remanded, and that it is a case and not a cause.

    US v. Miller is a snow job.


    Quote Originally Posted by doublenutz
    Interesting position. However, I am curious- Are you presenting this as THEORY or FACT?

    If factual- is it based on your interpretive experiences in the environment or an academic prowess.
    I see it clearly as fact. Words mean things - just as numbers have value and you can add, subtract, multiply and divide them. I just do the math.

    Woody

    This crap will continue until the Court stops allowing itself to be misused as a legislative branch of government, or as an alternative to amending the Constitution. B.E. Wood

  11. #20
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    Quote Originally Posted by Constitution Cowboy View Post
    I see it clearly as fact. Words mean things - just as numbers have value and you can add, subtract, multiply and divide them. I just do the math.

    Woody

    OK, I can appreciate that line of reasoning and you make a great deal of sense to me. The reason I ask is that should I ever plagiarize your argument in the future (I hope you don't mind that I may ;)), I just want to be able to recite how the points were arrive at.:)
    MΟΛΩΝ ΛΑΒΕ

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