1
Best 2nd Amendment Shirt evah:   http://tinyurl.com/59r77f

2 Cats and dogs, living together...

3 Hey, being a smart military blog that would be CYA (cover-your-ass.)  A little military lingo there.

4 ... Ninth Circuit ...

ummm, no they didn't.

5 The fuck?  The Ninth Circus actually making a ruling that comes out on the right side of things (in both senses of "right) for once?  Did we just have a blue moon or something?

6 Yeah, but will they consider it a fundamental right or simply a normal right? It makes a big difference, the ninth circuit could incorporate it into the 14th, then analyze it and call it a non-fundamental right, allowing for a simple rational basis review for denying the right to the populace.

7
I skimmed it and it looks like they admit that the 2nd Amendment grants the right to bear arms for defense of life and property but they try to limit that defense within the confines of a person's home, is that right?

8 Wow, so many cross-currents....

Good outcome, yet not a fan of incorporation. Also, 9th Circuit often over ruled.

9 14th Amendment in hostile takeover of 2nd Amendment.

10 Bang.

11 Ninth Circuit?!?!?!

Uh, nothing the Ninth does is to be believed until it gets past review.

I can't imagine that court sticking up for a 2nd amendment case unless someone with a turban was screaming Allahu Akbar and shooting up a Jewish day care like Yosemite Sam.

12

That sound you hear is Anthony Kennedy rifling through the latest Dutch/Danish/German/Czech/Andorran/Romulan opinions for a rebuttle...

 

13 2nd Amendent is all good anywhere as long as it's not a throw down weapon IMO.

14 However, the 14th Amendment states the privileges and immunities of citizenship shall not be abridged by the states. Most (but not all) rights in the Bill of Rights have been "incorporated" by the 14th Amendment over time, case by case.

The Bill of Rights is not.  It is, as you point out, Ace, a list of restrictions on the Federal government.  As such, these rights cannot be "incorporated" because they are not rights.  I do not believe in the doctrine of incorporation and anyone who does is an imbecile who doesn't understand what the Constitution means.

15 O'Scannlain is a very respected judge, a conservative with a moderate temperament.

16 I hear the sweet sound of liberal fascist heads exploding.

17 Posted by: Circa (Insert Year Here) at April 20, 2009 12:47 PM (B+qrE)

That right there? That's funny.

And sadly, likely true.

18

I do not believe in the doctrine of incorporation and anyone who does is an imbecile who doesn't understand what the Constitution means.

Doesn't matter a blue-baboon's ass what you believe, Amish--it's precedent.  And the 9th appears to get it right here--no selectivity about incorporation's applicability.

19 under Supreme Court precedent

Stare decisis is Latin for "perpetuating stupidity."

20 King declared she had “been trying to get rid of gun shows on Country property” for “about three years,” but she had “gotten the run around from
spineless people hiding behind the constitution, and been
attacked by aggressive gun toting mobs on right wing talk
radio.” At her press conference, King also said that the
County should not “provide a place for people to display guns
for worship as deities for the collectors who treat them as
icons of patriotism.”

Oh dear sweet lord in heaven.

21 Please, that pirate skull is very scary

22 @14,  Respectfully, can you explain the "doctrine of incorporation" in more detail?  Thanks.

23 20 King declared she had “been trying to get rid of gun shows on Country property” for “about three years,” but she had “gotten the run around from
spineless people hiding behind the constitution, and been
attacked by aggressive gun toting mobs on right wing talk
radio.” At her press conference, King also said that the
County should not “provide a place for people to display guns
for worship as deities for the collectors who treat them as
icons of patriotism.”

|Clueless, not the movie!

24 So it's a fundamental right, they acknowledge, but strict scrutiny does not apply (since any reasonable [a vague term] regulation is ok)?  How does that work?

25 Doesn't matter a blue-baboon's ass what you believe, Amish--it's precedent.

But it's WRONG.  The doctrine of incorporation is wrong from the definition of language of law and of common sense.  I don't care what someone who was so stupid as to have to go to law school says. 

I can call my grandmother a wagon, but if she doesn't have wheels, she isn't.

26 >>> It is, as you point out, Ace, a list of restrictions on the Federal government. As such, these rights cannot be "incorporated" because they are not rights.

You are speaking foolishly. A restriction on the government generally creates a right out there, had by *someone*, to vindicate it in court, if the government ignores the restrictions placed on it.

A restriction isn't self-executing. In a perfect world it might be, but we don't live in a perfect world. In case you haven't noticed, the government frequently attempts to do things it is forbidden to do -- thus the creation of a right held by citizens to enforce the restriction.

27 Now, as big a victory as this is, note that the gun ordinance being challenged was in fact upheld.


Yes, so was the statute in the Scopes trial.

28

>>AmishDude

95% of law professors would disagree with you.  Either way, it's de facto law and procedure.

29 the page reference regards were it will appear in an entire volume of collected opinions...

Umm, is that English?

30 One could say that the first amendment guarantees the right of one's speech not to be infringed by the Federal government, but it does not guarantee "the right of free speech".  The prepositional phrase is included in the whole shebang.

31 Please: "still grants some genuine rights to citizens."

Should be: "still recognizes some genuine rights of the citizens."

I know that you know that rights don't devolve from the government to the people, but I try to keep my language on that stuff completely clean. And you should too.

32 Now, as big a victory as this is, note that the gun ordinance being challenged was in fact upheld.

Which also means that the County of Alameda can't appeal their victory. So incorporation of the 2A can't easily be stayed in the immediate near-term.

This might be a best possible outcome for this case.

33 Because it is fundamental right it must, under Supreme Court precedent, be incorporated by the Fourteenth Amendment guarantee which prevents any State from depriving any person of life, liberty, or property, without due process of law.

Could someone explain how "due process of law" is likely to be interpreted? Doesn't that phrase allow for limitations on gun ownership as long as they follow due process?

34 I'm not a law-talking guy, but I skimmed the opinion. Upshot: the right to bear arms is indeed an individual right, not a collective one. The issue at hand was simply whether the County had the ability to prohibit the display and sale of guns on County property without infringing on that individual right, which the Court affirmed. Still: California agrees that the right to keep and bear arms is an individual right, through the Incorporation of the Second Amendment onto the state.

It's a pretty big deal.

35 Hey AmishDude, you know who calls your grandma a wagon? All forty-eight settlers that rode her on the way West.

Ba-dum--bum!

36 We better get used to flint lock muzzle loaders as the new standard defense weapons then.

37 Correction in terminology is in order.

Neither the Constitution nor the Courts "grant" a right to bear arms. They "recognize" a right to bear arms.

Citizens have that right as an inalienable grant from the God of nature. Whether the Courts at the moment recognize it or not.

Still, it's a good thing that the Courts appear to be recognizing the right...

38 #30

Wouldn't you say most or all of the rights in the BoR are inherent or God-given rights for all citizens, enumerated to restrict the actions of all levels of government; in principle?

39

I still think that "incorporation doctrine" is an abomination badly in need of a mercy killing. But if the courts are going to pretend it exists then it would be good if they could at least be consistent about it. Of course since the courts are an intensely political body, consistency is the last thing we can expect.

 

40 I still want my strict scrutiny question answered. Anyone?

41 95% of law professors would disagree with you.  Either way, it's de facto law and procedure.

But they are wrong.  I suspect they could, if they were math professors, simply declare that the Riemann Hypothesis is true without proof.

But there's a reason they're law professors.  First, stuff like math is too hard for them and second, law is too easy.  It's like music professors, art professors, etc.  They are so enmeshed in their field that they're bored with it, so they have to invent things that keep them from getting bored.  Musicians invent atonal music, artists invent abstract art and law professors invent "theories" that permit them to enact from the bench what they can't through the ballot box.

42 I'm keeping my guns and I don't care what they say in lefty wacko speak!

43 Stan:

The opinion actually goes into some detail about how the Incorporation doctrine applies to the Bill of Rights. The usual interpretation of the Incorporation doctrine is that only granted rights can be enforced on the states; recognized rights cannot. However, the states also cannot implement laws that infringe recognized rights (from what I understand), so I'm kind of unclear on the functional difference.

44 A whole host of these issues can be resolved by liberal application of tar and feathers.

My only concern is that the application of tar will be considered racist. Does tar come in different colors?

45 This court is a terrorist organization. Be advised.

46

That sound you hear is Anthony Kennedy rifling through the latest Dutch/Danish/German/Czech/Andorran/Romulan opinions for a rebuttal...

Fixed that for you.  Anyway, isn't a rebuttal what they call liposuction down South?  And don't you need to get debriefed before they can start the rebuttal?

47
First, stuff like math is too hard for them and second, law is too easy. 

hahahaha, I knew it was coming.

48 "Now, as big a victory as this is, note that the gun ordinance being challenged was in fact upheld." Oh for fucks sake. So, we have the right to bear arms, but, um, we're not allowed to use it?

49

Wouldn't you say most or all of the rights in the BoR are inherent or God-given rights for all citizens, enumerated to restrict the actions of all levels of government; in principle?

Well, I wouldn't. The BoR was written explicitly as a restriction on the power of the Federal government. It does not restrict the right of the states, and goes to great pains to make that clear. The Tenth Amendment, for instance. But the Ninth also applies.

 

50 Volokh's analysis

51 Okay, I get it now. Thanks for getting on this. Of course, I understand some of this a little different than some folks. The 1st amend. placed restrictions on congress and only congress at the time it was written (Congress shall pass no law etc.). States were allowed to (and a few did) place religious restrictions on who could hold public office etc. The 2nd amend. doesn't start out with "congress" and clearly means that the "right" (there's that word) may not be infringed by any legislative body. Of course, along comes the 14th that screws everything up and far from freeing the slaves made all of us lower case c citizens as opposed to Citizens as we are referred to in the constitution and made us all slaves to those pirates in DC. Then there's Marbury vs. Madison, ouch. Please correct me if I'm wrong.

52 The ass, King, may have done more for gun owners then she intended. The Left will label her a buffoon and NRA tool.

53 flesner,
Then, in principle, it only is meant and serves to be a restriction. Not an enumeration of rights, unless my definition of 'rights' is way off.

54 I don't get the restriction/right debate. If the government is restricted from passing and enforcing law X, then you consequently have a right to be free from Law X.

it's two sides of the same coin.

If the government is restricted but you don't have a right to enforce that restriction on the government, then the government really isn't restricted, except by themselves, which is a dubious protection.

55 We pass over then first prong because the Nordykes make no argument that
municipalities lack the power to regulate firearms possession
on their own property.

This was important and it's too bad nothing was said. The Judges go on to uphold the ordinance based on it but is this true? If a municipality can regulate firearms, including banning as it later states, on it's "own property" can this be extended to all public property? Including sidewalks etc? Isn't all public property owned by the government?

56 The bammy doctrine is in lieu of the Nation that he was elected to represent.

57

9th circuit? Doesn't this mean that under standard jurisprudence this is the wrong decision, the exact opposite of what every other court in the country will conclude, and soon to be overturned?

Shit.

When the 9th circuit says your right... give up. You just lost.

58 There is a new frame -more connected to reality - working its way through left legal thought. It goes like this:

Yes, original intent matters. It matters because we explicitly overrode that intent with the 14th amendment. But because we haven't incorporated all the Bill of Rights through that mechanism, our argument is weak.

Finish the incorporation (effectively eliminating the original "negative liberty" restrictions on the federal government), then we can just ratchet away rights through the courts.

Significant political capital in favor of structural federalism will be eliminated, replaced by superficial federalism (as in NOT REAL).

---------------

I think this is a good political strategy by the left.

To stop it in its tracks, repeal the 17th.

59

The 2nd amend. doesn't start out with "congress" and clearly means that the "right" (there's that word) may not be infringed by any legislative body.

It was never understood that way, even in the early days of the republic. (1)Localites did have restrictions on bearing arms. (2) The reason all the states had their own constitutions and bills of rights, which in many cases duplicated provisions of the Federal one, was that everybody understood that the Federal one was not binding on the states.

If all these different things were always enforceable aganst the states, then it's odd that nobody noticed it until the Supreme Court dreamed up "incorporation doctrine" in the middle of the 20th century. Even the Fourth amendment was not "incorporated" until 1961.

60 >>ace @ 54

Agreed, I just think restrictions stem from rights. And when they don't, or when it isn't so obvious, then the protection isn't much.

61

I want to back up Amishdude a little here on the incorporation doctrine (not sure where he was going on the rights versus restrictions stuff). 

When we talk about constitutional law, there are cases and doctrines that have developed over time that are clearly idiotic.  He's expressing his opinion that the incorporation doctrine is stupid.  To say that 95% of all law professors agree with it doesn't get us anywhere.  Most of them are the same people who are arguing for further distortions to the Constitution.  Some of them are just acknowledging the reality that a doctrine that has seeped into 100 years of SCOTUS cases isn't going anywhere.

But IMHO, the Congress had no intention of completing overhauling our federal system when they passed the 14th Amendment.  That is the practical effect of the incorporation doctrine.

62 Not a lawyer, nor do I play one in any sort of media (not even Scottish Games recreations) but I read this as an opinion that O'Scannlain really wanted to write to get the political football out on the field and in play. That said, it also looks fairly clear that they were trying to avoid 'slippery slope' headlines - "Ninth Circuit Radicals Say Counties Can't Ban Guns In Schools." Oh, my, and it was even the Ninth Circus. Do the Lefites now get to bemoan justices who 'grow in office'?

63

If the government is restricted from passing and enforcing law X, then you consequently have a right to be free from Law X.

No. America was founded as a federal republic. It does not have, or is not supposed to have, one government. It is supposed to have many governments. And each has it's own role to play, and restrictions on what things they can do. There is not supposed to be any such thing as "the government".

So the town of Podunk can pass a law against spitting on the sidewalk, and it's no business of the clowns in DC. 

64 The 14th was a product of the abolitionists, wasn't it? Wasn't it adopted to protect the fundamental rights guaranteed federally, but not in some states?  If you don't like incorporation, then you don't like the 14th. What am I not getting.

And how do broad, reasonable regulations qualify as passing the strict scrutiny test?

65 I am not a lawyer; just a simple country boy.  I'm not smart enough to keep up with all you law-scholar types.

That being said, I reside in the People's Republic of California (in the Ninth Circus Court's jurisdiction), and if this decision says what I think it says, then let this serve as notice to the good people at Sig Sauer, Armalite, and Mossberg: I'll be calling shortly, credit card in hand.  Please make sure your operators are standing by.  And I expect to not be paying that out-of-state sales tax.  Thanks -

66 63

Absolutely!

67 Yes, original intent matters. It matters because we explicitly overrode that intent with the 14th amendment.

Do you see the problem with these two sentences?  (I'm guessing you do, by the context of your post, but I'll use the rhetorical device anyway.)

Original intent applies to the 14th amendment too.  The doctrine of incorporation came much much later.

68

IMHO, the Congress had no intention of completing overhauling our federal system when they passed the 14th Amendment. 

 

Especially since Congress never got around to lawfully ratifying the 14th Amendment. Read up on its history.

69 65

Me too bud and I can't buy enough, but it's that much more to clean |(groan). lol

70 flenser:

So the town of Podunk can pass a law against spitting on the sidewalk, and it's no business of the clowns in DC.

Is that really true, though? A state law cannot infringe on a Constitutional right, can it? Isn't it understood that Federal law trumps state law (which is to say, states can make laws that Federal laws do not address, but cannot override Federal laws)? The Civil War pretty much settled that question.

71 >>>But IMHO, the Congress had no intention of completing overhauling our federal system when they passed the 14th Amendment. That is the practical effect of the incorporation doctrine.

I'm not so sure. The whole point of the 14th amendment was to stop states denying privileges and immunities of citizens to recently freed slaves.

Now, what does P&I mean? The courts could have certainly developed a whole parallel analysis of precisely which rights were fundamental and therefore the p&i of citizens.

But that analysis would, inevitably, track very closely (if not precisely duplicating) the standard rights in the Bill of Rights.

So the courts took a short-cut -- since any P&I analysis will wind up looking an awful lot like our Bill or Rights jurisprudence, why not just extend the Bill of Rights jurisprudence to every citizen?

I don't really think you're right. As a formal matter, no, the P&I clause did not say "the bill of rights extends to the states."

But as a thought experiment, imagine the courts didn't just extend the BoR to citizens vis a vis the states. Fine -- the BoR isn't incorporated. but the P&I clause sitll must make real, substantive guarantees, or else it's just window-dressing.

So what guarantees would it make? I think it would end up guranteeing a lot of what the BoR guarantees.

Which raises the question: Why would someone want two EXTREMELY similar and yet not wholly duplicative set of rights, both operating in tandem, one enforceable against the federal government and one enforceable against state government? I just see an awful lot of confusion and strange "gotcha" moments as the hypothetical free-standing P&I law diverges from BoR analysis.

Surely, if such a tandem system were developed, they'd end up informing each other all the time and influencing the other, again to the point where they were pretty much -- but not quite-- the same.

Which is sort of the system that's evolved anyway, but at least one knows in the current system that when an incorporated right is involved, all the standard BoR jurisprudence applies.

I think you're insisting on a formalism.

72

I can call my grandmother a wagon, but if she doesn't have wheels, she isn't.

That's what you think!

73 64 The 14th was a product of the abolitionists, wasn't it? Wasn't it adopted to protect the fundamental rights guaranteed federally, but not in some states?

It does not mean that Alabama needs to be the same as Massachusetts, it means that Alabama must treat its own citizens the same as each other.

74 70 flenser:

So the town of Podunk can pass a law against spitting on the sidewalk, and it's no business of the clowns in DC.

Is that really true, though? A state law cannot infringe on a Constitutional right, can it? Isn't it understood that Federal law trumps state law (which is to say, states can make laws that Federal laws do not address, but cannot override Federal laws)? The Civil War pretty much settled that question.

What are we playing now spades? no racial intent.

75
To stop it in its tracks, repeal the 17th.

Election of Senators?

76

Time has an interesting article about how it has gotten easier to own guns in the last ten years (news to me).  As a percentage of population the crime rate has dropped by about 30% in ten years. Woops. Are they inadvertently admitting that gun ownership works?

77

Yeah, morons arguing about legal rulings.  That's what I come here for.

 

That and lace wig references...

 

Do you suppose the 9'th curcuit wears lace wigs like those English judges do?

 

(I'm kind'a curous that way...)

78 Sounds like these 9th Circus Clowns just got their Obama income tax bills, and realized they might actually have to defend their right to hold onto a little bit of their own money these next 8 to 11 years.  EXTREMISTS!!!

79 I agree with the vast majority of the opinion. Predictably though, I disagree with the application of "sensitive area" to plots of public, government owned open land where people occasionally gather in large numbers. That is clearly too broad and takes the idea of sensitive area to mean all government land. Not specific buildings with specific functions as the SCOTUS clearly intended.

80 And I think some here are dwelling on the liberal overreach of some 14th A decisions.

Consider a world without incorporation: The federal government can't restrict your speech -- but your state government can. Etc.

Or, again, you might argue that the states are still bound by "natural law" and so they can't... but then this just means the two tandem bodies of law wind up looking very, very similar, and yet are not identical.

What would be the basis of P&I? "Natural law' and god-granted rights, and what rights the founders seem to think were necessary for ordered liberty... in other words, mostly what they said in the BoR.

Seems like needless formalism to me.

81 >>73

Ok I'm done with the incorporation stuff. You've just made my point AmishDude.

82

Is that really true, though? A state law cannot infringe on a Constitutional right, can it?

Are you trying to say that there is a (Federal) Constitutional right to spit on the sidewalk?

If not, what are you saying?

Isn't it understood that Federal law trumps state law

It used to be understood that there were a great many spheres of life where federal law had no juristiction. And this was a century after the Civil War. The revolution in American law began in the sixties and has been ongoing since. It has very little to do with the Civil War, except insofar as that incident furnishes useful artifacts for the modern builders.

 

83 Bammy repeated the 90% of weapons to Mexico rant in the islands, this weekend, buy now and buy alot folks! He's so full of shit no wonder he's brown!

84 When the 9th circuit says your right... give up. You just lost. - Entropy

You know what's funnier? If the 9th Circus is known for being leftist, anyone who disagrees with the decision is, de facto, a Leftwing extremist!

Ah sweet creamy karma.

85 I think you're insisting on a formalism.

He insists upon himself.

86 79

That's what I'm concerned about. They say it's a fundamental right, incorporated throught the Due Process clause. Which normally would do wonders for gun owners. But then they contradict themselves allowing these broad regulations. IS it a fundamental right protected by strict scrutiny, or is it not?

87 42 I'm keeping my guns and I don't care what they say in lefty wacko speak!

I'm with ya

88 AP-Boston April 20, 1775

Scores Killed, Hundreds Injured as Para-Military Extremists Riot in Boston Area

National guard units seeking to confiscate a cache of recently banned weapons were ambushed on April 19th by elements of a paramilitary extremist faction. Military and law enforcement sources estimate that 72 were killed and more than 200 injured before government forces were compelled to withdraw.

Speaking after the clash Massachusetts Governor Thomas Gage declared that the extremist faction, which was made up of local citizens, has links to the radical right-wing tax protest movement. Gage blamed the extremists for recent incidents of vandalism directed against internal revenue offices. The governor, who described the group's organizers as "tea baggers," issued an executive order authorizing the summary arrest of any individual who has interfered with the government's efforts to secure law and order.

The military raid on the extremist arsenal followed widespread refusal by the local citizenry to turn over recently outlawed weapons. Gage issued a ban on military-style assault weapons and ammunition earlier in the week. This decision followed a meeting earlier between government and ninth circus clowns at which the governor authorized the forcible confiscation of illegal arms. One government official, speaking on condition of anonymity, pointed out "none of these people would have been killed had the extremists obeyed the law and turned over their weapons voluntarily."

Government troops initially succeeded in confiscating a large supply of outlawed weapons and ammunition. However, troops attempting to seize arms and ammunition in Lexington met with resistance from heavily armed extremists who had been tipped off regarding the government's plans. During a tense standoff in Lexington 's town common, National Guard Colonel Francis Smith, commander of the government operation, ordered the armed group to surrender and return to their homes. The impasse was broken by a single shot, which was reportedly fired by one of the right-wing extremists.

Eight civilians were killed in the ensuing exchange. Ironically, the local citizenry blamed government forces rather than the extremists for the civilian deaths. Before order could be restored, armed citizens from surrounding areas had descended upon the guard units. Colonel Smith, finding his forces over-matched by the armed mob, ordered a retreat.

Governor Gage has called upon citizens to support the state/national joint task force in its effort to restore law and order. The governor has also demanded the surrender of those responsible for planning and leading the attack against the government troops. Samuel Adams, Paul Revere, and John Hancock, who have been identified as "ringleaders" of the extremist faction, remain at large.

89 flense,

Who do you think those folks are today from the 60's, yes the same folks that are demonstrating in SF against ROTC and the Gov. while wearing no clothes. They still think they are hippies instead of losers for bammy.

90 FTR I think Barron v. Mayor of Balt is a highly flawed decision. The Bill of Rights was supposed to recognize pre-existing rights. As such those rights are law above and beyond the COTUSA and the Constitution of any particular State, violation of which is against the law. Whether it is strictly written that way or not.

91

Consider a world without incorporation: The federal government can't restrict your speech -- but your state government can.

 

All right, I'l consider it.

Now what?

 

The check on the abuse of power by government is not supposed to be the courts, which are themselves part of the same government some people imagine they will guard against. The check on the abuse of power by the goverment is supposed to be the people.

 

Or, again, you might argue that the states are still bound by "natural law" and so they can't...

The states are bound by the votes of their citizens. And, in theory, by nothing else barring some very minor US Constitutional restrictions involving internal tariffs and the like.

 

92 My immediate response, without having read the opinion yet, is SCREW YOU PHILLY!  For those that don't know, Philadelphia is constantly passing/attempting to pass gun control laws that are obviously against the PA Constitution.  I'm going to have to ponder whether or not incorporation would grant a citizen standing to get injunctive relief the next time such an attempt is made. 

93 Can someone translate this into moron?

94 It has very little to do with the Civil War, except insofar as that incident furnishes useful artifacts for the modern builders.

I disagree. The abolition of the Jim Crow laws of the Civil Rights era argue against you. States cannot implement laws that contravene Constitutional rights. Podunk city can pass an ordinance against spitting, but they can't keep me from spitting on my own property, for example. They can affirm the right of a business to refuse service to certain individuals -- but this right cannot run afoul of an individual's Federally-protected rights.

95 Anyone with common sense knows the bill of rights was number ordered with #1 being the most important, At that time.

#2 fully backs up #1, And is likely the reason the U.S. has remained a democratic republic for so long.

Every communist, fascist, and tyrannical dictator has rescinded their countries 'gun rights' for the sole purpose of gaining control and squelching opposing speech.

Unfortunately this basic principle of liberty is no longer being taught in our schools, So teach it to every child you can.

96 >>>The check on the abuse of power by government is not supposed to be the courts, which are themselves part of the same government some people imagine they will guard against. The check on the abuse of power by the goverment is supposed to be the people.

So, you think the constitutional model is, I guess, any time the government oversteps the first redress is via... armed insurrection?

I'd sort of like some intermediate form of resistance before that.

As for voting -- well, hey dude. You wind up in jail for 20 years due to real government violations of your civil rights, and you just wait for your fellow citizens to vote you your freedom?

97 And I understand that Nike Shox shoes are some of the most comfortable athletic shoes one can get. 

98 just fyi: Cops really did used to beat confessions out of suspects.

It's not some liberal fairy-tale. Happened a lot.

This is strangely quixotic and reductivist, this notion not just that the courts have greatly overstepped their constitutional bounds, but in fact have almost no role to play in our constitutional scheme whatsoever.

99 Is that yours Sickinmass?

100 There is a big problem here. That is to what extent a municipality can regulate. Yes the 9th circuit gives a nod to Heller with the incorporation of the 2nd but it goes on to allow banning on public property. Banning is not regulation. What good is the right to bear arms if the only place you can do it is your own property? how the hell do you get the guns home from the store unless you house and the gun store are connected by federal highways? The 2nd says you have a right to possess guns. That right should include public property unless the municipality can show a compelling reason. How can you have a right to guns but say possesion of them threatens public safety?

 To summarize: the Ordinance does not meaningfully
impede the ability of individuals to defend themselves in their
homes with usable firearms, the core of the right as Heller
analyzed it. The Ordinance falls on the lawful side of the division, familiar from other areas of substantive due process doctrine,
between unconstitutional interference with individual
rights and permissible government nonfacilitation of their
exercise. Finally, prohibiting firearm possession on municipal
property fits within the exception from the Second Amendment
for “sensitive places” that Heller recognized.

Is that the core right? Are we only allowed to defend ourselves in our home with usable firearms? Is a public park a "senistive place"?

Thanks for the nod guys but appeal this now.

101

Can someone translate this into moron?

I think it means Conan the Barbarian was real.  Or something.

102 flenser

Natural Law is always the final arbiter of disagreements of a Sovereign nature. States are only bound by votes if they actually intend on replacing govt officials based on election results. I sense if they didn't, they might have someone with a substantial amount of sovereignty loaded into steel tubes to deal with. In theory they can always get away with whatever those with sovereignty will tolerate.

103

Now, what does P&I mean? The courts could have certainly developed a whole parallel analysis of precisely which rights were fundamental and therefore the p&i of citizens.

I'm not sure they could. Not going by the understandng of the role of the courts which prevaled at the time. Which is why the courts did no such thing, not for another hundred years.

It was understood at the time that Congress would flesh out the 14th if they thought it neccessary. This is why the 14th ends with Section 5: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.".

The idea that the BoR is a blank sheet of paper for the courts to write on is of very recent origin.

104

@93

 

Two words, doug: Lace wigs.

105
Rocks, I asked the same thing, too, up-thread.

But these fucking lawyer-types are too busy with their mental masturbation to address the meat of the opinion.

106 I think this decision is leading us in the right direction.

We may end up with a system where the individual right to bear arms is firmly recognized in law and then later in consensus among the people.

The key sustaining our rights is consensus, which derives from experience and education. The branches of government at all levels need to be populated with people who want to serve the public not control it.

I sense a turning of the tide.

One question: does a State have a right to possess a nuclear weapon?

107 Rocks:

Here in Minnesota we have two kinds of firearm permits: a permit to purchase (which allows you to buy and transport the -- cased, unloaded -- weapon home), and a permit to carry. A permit is required for pistols and "assault weapons", but not other long guns. However, even a permit to carry does not entitle you to carry anywhere (schools, hospitals, etc.).

As I understand it, the ordinance doesn't specify the venues into which I may not carry a firearm -- it simply allows private schools, businesses, government offices, etc. to declare a "no gun" zone. (Rather like the "no shirt, no shoes, no service" codicil for many businesses.) Overly-restrictive ordinances could probably be challenged and beaten in the courts for making the gun-ownership right non-meaningful (violating the spirit while adhering to the letter), but the balance probably varies from state to state.

108

Natural Law is always the final arbiter of disagreements of a Sovereign nature.

That's a nonsensical statement. I can think of many instances where "disagreements of a Sovereign nature" are decided by means other than Natural Law, and I'm sure you can too. In fact Natural Law is very rarely used in settling such disagrements. Good old-fashioned power is the most popular solution.

 

In theory they can always get away with whatever those with sovereignty will tolerate.

And in practice, if todays America is any indication.

109
too much mental masturbation in this thread

And I'm gonna keep saying mental masturbation for the rest of the day.

110 This is strangely quixotic and reductivist, this notion not just that the courts have greatly overstepped their constitutional bounds, but in fact have almost no role to play in our constitutional scheme whatsoever.

I think much of it is the pendulum swing back from how far the courts have overstepped.  There's a tendency for the response to be courts have no role rather than the courts have a limited role which has been crossed.  The second isn't nearly as much fun to argue as the first. 

As far as the rights issue, this may be a debate over positive vs. negative rights. 

111 Having read through this 43-page decision, I have come to a simple conclusions.  These judges can sure use a lot of words to reach a conclusion.

112

Consider a world without incorporation: The federal government can't restrict your speech -- but your state government can.

Um, yeah technically they would be able to.  Except most states have a freedom of speech clause in their own constitutions or Bill of Rights.

113 As long as this means I can now purchase my plutonium nitrate heat-seeking bullets, I'm cool.

114  Podunk city can pass an ordinance against spitting, but they can't keep me from spitting on my own property, for example. They can affirm the right of a business to refuse service to certain individuals -- but this right cannot run afoul of an individual's Federally-protected rights.

The point of the 14th Amendment wasn't that Podunk city couldn't pass a law against spitting on the sidewalk, but as AmishDude notes, they couldn't pass a law that said whites could spit on the sidewalk, but blacks couldn't.

115 As far as the rights issue, this may be a debate over positive vs. negative rights.

I can remember a consensus opinion even as recently as the Clinton years that the Second Amendment was a collective, not an individual right -- and yet with Heller, the edifice was blown down. I think this will probably be the signature court case of the Bush years; the significance will continue to reverberate for many years. Gun-ownership is a natural right of an individual. The only question remaining is how this natural right may be channeled by the government.

It's a pretty profound thing, and the various courts are only now getting up to speed on it. It's going to be interesting to see what case-law develops as more and more cases like these are brought before the bench.

116

So, you think the constitutional model is, I guess, any time the government oversteps the first redress is via... armed insurrection?

The Founders were not adverse to armed insurrecton. But perhaps we could try letting laws be made by the peoples elected represenatives? That was the Big Idea this country was founded on, not rule by judges.

 

 You wind up in jail for 20 years due to real government violations of your civil rights, and you just wait for your fellow citizens to vote you your freedom?

The solution to that is not to surrender all of our freedoms to some supposedly benign despots.

 

This is strangely quixotic and reductivist, this notion not just that the courts have greatly overstepped their constitutional bounds, but in fact have almost no role to play in our constitutional scheme whatsoever.

They have no role to play in writing the blasted Constitution, which is the role they have taken for themselves, to the cheers of the mob. They are supposed to be the servants of the law, not its creators. Ask Scalia what role they have to play in our constitutional scheme.

117 Seems like everyone is getting disgusted with bammy even the courts.

118 So does this open up challenges to the concealed carry permitting laws on procedural due process grounds?  It's a breeze to get a concealed permit in, say, Alpine County, but effectively impossible in Alameda, SF, Santa Clara, etc.  If it's a fundamental right, and if the government can only make restrictions on "sensitive areas" which are publicly owned, then why can some counties capriciously enforce the "may issue" law to mean "won't ever issue"?

119 The Founders were not adverse to armed insurrecton.

They most certainly were. Perhaps you should read the entirety of the Declaration of Independence. And follow that by looking at what actions they took against armed insurrectionists.

120 It's going to be interesting to see what case-law develops as more and more cases like these are brought before the bench.

Oh absolutely.  I have the sinking suspicion, however, that we're going to end up with the gun rights equivalent of the Lemon test and then I'm going to go back to rocking in a corner. 

One question: does a State have a right to possess a nuclear weapon?

Define State.  I ask this as a totally hypothetical question.  Totally. 

121 Monty,
That's all well and good...and reasonable except for the "assault" thing IMHO.
But this ruling basically says any public property can be declared a "no gun" zone on the idea of "promoting safety". So, you have a carry permit in CA but hopefully you don't stumble on the sidewalk as you go by the fairgrounds because you will get busted? EPIC FAIL there. What's the difference between a park and a sidewalk...cement?

Think it's no be deal? How about second hand smoke bans in public parks?
These municipalities did not need to show anyone actually injured by the practice of smoking outdoors, it was for "promoting health".

People's rights don't end at their property line, even the ones other people don't like.

122

I'm not so sure. The whole point of the 14th amendment was to stop states denying privileges and immunities of citizens to recently freed slaves.

OK.  I should have used more precise language.  I agree that Congress was altering our federalist system with the 14th Amendment to protect the recently freed slaves.  My point is that what was intended to protect slaves has been used as a vehicle (through the incorporation doctrine) to greatly expand federal power over areas beyond their contemplation- to an extent that has federalism on the ropes.  I am confident that a 19th Century Congress did not intend that the 14th Amendment would apply to the posting of the 10 Commandments in a county courthouse, for example.  Whatever limitations to the protection of African-Americans have long since been broken.

Consider a world without incorporation: The federal government can't restrict your speech -- but your state government can. Etc.

That is the world that existed in the United States before the 14th Amendment passed.  Congress shall make no law respecting the establishment of religion, but states in fact did have established religions.  For example, the Congregational Church was not disestablished in Connecticut until 1818. (The Connecticut State Constitution, by Wesley W. Horton)  Yes, it was unusual, but the power of the states to have an established religion at the time of passage of the Constitution was understood.

123 1:36 into the thread and we're up around 120 posts. Not a Dick Cheney's cock thread, but not bad.

124

I disagree. The abolition of the Jim Crow laws of the Civil Rights era argue against you.

Given when they happened, they sure seem to confirm what I'm saying.

States cannot implement laws that contravene Constitutional rights.

That's a tautology. The question is "what are Constitutional rights"? And the answer to that question has been undergoing a sea chage in recent decades and not in a lawful fashion.

 

 Podunk city can pass an ordinance against spitting, but they can't keep me from spitting on my own property, for example. They can affirm the right of a business to refuse service to certain individuals -- but this right cannot run afoul of an individual's Federally-protected rights.

Again, you're merely repeating current SCOTUS rulings. I know what they have said. I'm pointing out they they have no legal right to say it.

125 Pendejo:  Well, since Dick Cheney's Cock doubled as the Constitution during the Bush years, it IS sort of one of those threads . . .

126 Makes my day to see that folks I believe in are actually reading and quoting the Constitution, we did that in the Army in 'Nam just to stay focused all of the time, it became a game. See, that is something that outsiders didn't know. TRUE STORY.

127 The point of the 14th Amendment wasn't that Podunk city couldn't pass a law against spitting on the sidewalk, but as AmishDude notes, they couldn't pass a law that said whites could spit on the sidewalk, but blacks couldn't.

Recall that it was only in the mid-1960's that even the Jim Crow laws were struck down...at the federal level. The Federal government asserted power over the states (Brown v Board of Ed) in the sense that the Constitution reigns supreme over any State law. The State law can only be held if it does not conflict with the US Constitution. (Or at least this is how I understand it.) This was an assertion of Federal power over the states.

Think of it this way: murder is a crime in all fifty states, but it is a state crime. If Minnesota decriminalized murder, the Federal government could step in a strike down such a law because it would be a violation of the victims' civil rights (in fact, this is how the murderers of the civil-rights workers in Mississippi in 1964 were prosecuted -- not under the state murder statutes, but under the Federal statutes).

128 flenser,
Why don't you just question Judicial Review/Marbury v. Madison and be done with it. That's what your getting at, it appears. 

129

Perhaps you should read the entirety of the Declaration of Independence. And follow that by looking at what actions they took against armed insurrectionists.

Unless the Founders all commited ritual suicide,  I can't fathom what point you're tryng to make. They all very explicitly believed in the right of "a people" to engage in armed insurrection "when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism".

130 People's rights don't end at their property line, even the ones other people don't like.

Posted by: Rocks at April 20, 2009 02:18 PM (Q1lie)

Kinda makes you wonder why the Constitution uses the verb "bear" if you then are told you may not carry anywhere.

131 answer: Footnote 19.

The standard of scrutiny depends on the right being infringed. As of yet there isn't much of a jurisprudence of what that level of scrutiny is. So no one knows.

Footnote 19 says "strict scrutiny" applies in substantive due process cases (cases where a NON-enumerated right is in question; a made-up right, kinda), but where there's an actual right, I guess the standard of scrutiny is just based on all the caselaw surrounding that right.

At the moment there's not a lot of caselaw so it's... up in the air? And therefore, at least at the moment, a non-enumerated "implied" right has the strict scrutiny standard, whereas the actually-enumerated 2nd Amendment has no real standard, and may in fact be a lot less than strict.

(However, Heller has it seems already ruled out that it could have the lowest level of scrutiny, mere 'reasonableness." The standard must be higher than mere reasonableness, but how much higher the case law isn't mature enough to say.

I guess.)

132 Monty, I get what you are saying in 127. My point still stands. But the failures of Reconstruction led to the abandonment of the intent of the 14th. In effect, the states ignored it, and the federal government stood by and let that  happen.

133 Great blog guys, glad I signed up.

134 Rocks:

I don't disagree that some restrictions on handguns are absurd. (Believe me on this. You wouldn't believe the amount of paperwork I had to go through to get my permit. They do everything but give you a high-colonic.) Still, you have to grant that some restrictions are necessary. For example: if you are entering my private home, I have every right to forbid you entry if you are armed. Some cities extend this notion out to "commons" areas -- rightly in some cases, wrongly in others.

Nor is this a newfangled idea. Many towns in the Old West would require a cowboy to leave his gun with the Sheriff upon entering town; he'd get it back when he rode out. In some other towns, ladies were allowed to have a concealed weapon but men were not, on the (well-founded) belief that men were hotheads and far more likely to resort to the pistols if things got heated.

The right to carry a firearm is an important one, but just like free speech, it is not an absolute right. It never has been at any time in American history.

135

I have the sinking suspicion, however, that we're going to end up with the gun rights equivalent of the Lemon test and then I'm going to go back to rocking in a corner. 

Word. Also very funny.

136

Why don't you just question Judicial Review/Marbury v. Madison and be done with it. That's what your getting at, it appears.\

It's amusng that you cheerfully accept the courts opinon of the limits of its own powers. If the Executive or the Congress expressed similar expansive views about the powers of their office, would you be equally as receptive?

137 flenser, my point was that armed insurrection wasn't their first remedy to an abuse by the government of King George III. It was the final option on the table. And they certainly were quick to put down any insurrections that came along after that. See Rebellion, Whiskey.

138 >> ace @ 131

Thank you.  I had no idea that enumerated, but fundamental rights were treated differently than non-enumerated fundamental rights.  I'm going to fail my LSAT.

I could've sworn that all fundamental rights deserved strict scrutiny.

139 So does this open up challenges to the concealed carry permitting laws on procedural due process grounds?

That's the big chatter on CalGuns.net right now, the death of discriminatory issue. Of course, we'll have to see how it applies in practice.

140 Is anybody else getting the feeling that the ninth deliberately made this ruling so that it would be overturned?
I mean, it's the fucking Ninth circuit.

141 The Founders were not adverse to armed insurrection.

The Constitution itself was in many was a response to an insurrection, the Whiskey Rebellion. 

142 the whole strict/rational basis thing is bullshitty anyway. if you want to knock down a law, you say it's a fundamental right and that it fails the strict scrutiny test; if you want to uphold it, it's non-fundamental and it passes the rational basis test.

Gabe says that courts are doing this more, analyzing cases without saying what level of scrutiny they're applying. Which might be better, I guess, because at least they're forced to explain the reasons for their idiosyncratic preferences rather than just saying "Obviously this falls into category X and therefore gets Y scrutiny."

Which is really just a gussied-up way of saying "because I said so."

143

144 >>>I had no idea that enumerated, but fundamental rights were treated differently than non-enumerated fundamental rights

I forgot myself. I never liked con law, because it was so bullshitty and transparently political.

A lot of areas of the law are pretty strictly logical and bound by genuine rules, because politics doesn't intrude.

145

65 and 69:

 

Now if we can only find a good supplier for ammunition.

146 Monty at 143, word, brotha!

I'm speechless.

147 I have no problem here in Texas. ;-)

148 So were the Founding Fathers morons for leaving 'Congress' out of the 2nd when they should have put it in to be consistent with the 1st, or were they morons for slipping in a superfluous 'Congress' into the 1st?

149 For what it's worth, I think that any restrictions on firearms would be best handled at the municipality level: ordinances, in other words, rather than state laws. That way if a gun-owner finds the ordinances too onerous, he can simply move himself outside the city limits without completely having to uproot himself to another state. It would also recognize the social and cultural differences between townships: rural vs urban, population density, crime rate, etc.

150 Monty's wild west example is something I've asked Glenn Reynolds about twice by email, but he never answered.

I'm not saying Wyatt Earp is necessarily the beginning and end of gun rights jurisprudence, but if that's how it was done back when - that he could just put up a sign and say "No Firearms within Town Limits" -- I don't know, seems he was at least closer in time to the original understanding of what the 2nd A protected.

151 This is the 9th Circuit, there is more to this than meets the eye.

Look for the propensity for lawsuits against lawful gun owners to be made easier.

152 Monty,
  You can restrict anything you like on private property as far as I'm concerned.
Restrictions by the gov't are fine to but they need to have some compelling basis. This ruling states guns are a right in one breath and with the other states they can be banned as they are a menace by definition. Here's a license to carry a gun, with all it's safety requirements, but they  are still a menace so you can't have guns shows in a public park????? Isn't the safety requirement met when you get the permit?

153 I mean, no carried firearms within town limits. every bartender and shopowner had a gun.

154

As someone whose business was crossing state lines, we like some of the incorporation doctrine and none of the commerce clause. 

155 Posted by: ace at April 20, 2009 02:43 PM (gEsIJ)

I would have to wonder how many of those towns were in territories and not states in the Old West. Also, who says any were actually legal? Were any ever challenged? How many were done under the cover of Marshall Law?

156
99 Posted by: Jean
Change Lexington town 'common' to 'green'. My bad.
Now you know how a slanted media would have covered and slanted American history. Wait a minute, we already know, they are doing it right now!

157 I'm inclined to believe Earp didn't give a rats ass about half the restrictions.  Conlaw was my passion, hasn't been for couple years now.

158 Big guns scare me!!!!

159 I just wish the level of prior restraint on gun ownership was held to the same strict standard as that of free speech.

160 >>>I would have to wonder how many of those towns were in territories and not states in the Old West.

Not sure, but I imagine a territory was directly under federal law, there being no state to share federalist power with. Which means the 2nd Amendment applied straight-up no chaser.

>>> Also, who says any were actually legal? Were any ever challenged?

No idea, that's what I was asking Reynolds about.

But my larger point was that Wyatt Earp would be -- by simply being 100 years closer to the colonists -- somewhat informed about what the "norm" of gun rights was.

>>> How many were done under the cover of Marshall Law?

Martial law you mean, right? Dunno. Sure, in an "emergency" situation his power to disarm the populace might grow.

But it's my understanding that such laws -- or ordinances -- were common, and not just for Dodge City and other towns that clearly had a problem with a high gun-murder rate.

161

I just wish the level of prior restraint on gun ownership was held to the same strict standard as that of free speech.

Or the right to an abortion. The goverment would be subsidising our gun purchases if that happened.

162 How many were done under the cover of Marshall Law?

Could you define Marshall Law, or do you mean Martial Law?

The territory question is pretty good tho...

163 OK, so if the 2nd amendment is 'Incorporated' does that mean that federal regulations supersede state laws?

The Assault Weapons Ban could then be imposed nationally on all states?

164 no individual could sensibly argue that the Second Amendment gives them a right to have...chemical weapons in their home for self-defense

What about my stock of white phosphorus? I need to be able to mark targets for the air strike!

165 further, it seems counterintuitive to me that an established city in an establised state -- NYC, Boston -- would wind up having more carried-weapon freedom than a Wild West town.

I mean, wasn't that the whole reason the west was wild?

I don't know, though -- it could be that way, in fact.

I think it's Andrew Stuttaford at NRO who likes to quip he wishes to impose Victorian law and sensibilities on this country -- by which he means, carried concealed weapons, drugs, and prostitution were all legal.

So it could actually be that NYC resembled London in this period, and people were perfectly within their rights to carry pistols and derringers.

Again, I don't know; that's why I keep asking reynolds.

166 ace,
I, on the surface agree, with your premise of local restrictions being best as they reflect local issues. But, local restrictions can quickly deteriorate in to violations of rights. Additionally, those involved with firearms use are often involved in multiple areas. A series of local ordinances that change from place to place easily puts many making earnest attempts to be lawful in jeopardy of prosecution. As a personal participator in firearms related sports I can say, that the current system of regulation is more complicated than the average person can understand, and this while almost all law is state law.  I can't imagine deciphering it from municipality to municipality. Perhaps county level would be better.

167 The Assault Weapons Ban could then be imposed nationally on all states?

It WAS imposed nationally on all states.

168 No, I really meant Marshal Law. Wasn't it pretty common for State and Federal Marshals to just make shit up on the spot based on their "authority!"?
Unless they pulled something on somebody with lots of cash or clout it wasn't likely to come back on them.

I think a lot of those town and county laws violated both state and federal statues even at the time and they just let them slide. Who was going to sue anyway? With the nearest judge days away.

169

I know the law. And I have spent my entire life in its flagrant disregard.

For more app quotes, google up Judge Roy Bean.  Its full of winners.

170 >>>Who was going to sue anyway? With the nearest judge days away.


Anyone arrested and tried for a gun crime would have a reason and opportunity to offer such a defense.

No one would sue over Earp bullying them into giving up their guns, probably, but a guy arrested for such a violation? He'd have a reason.

171 I want to note I don't know the answer to these questions.

That's why I ask reynolds.

172 Rocks, I do believe you may be right, tho most would have at least given it the fig leaf of "maintaining order and domestic tranquility."

173 BTW I disagree with your assessment of Wyatt Earp. I've read nothing in his history which leads me to believe he understood the Constitution when it got in the way of his law enforcement duties.

174

Again, I don't know; that's why I keep asking reynolds.

Why don't you try John Lott?  He's another conservative expert on gun issues.

175

Again, I don't know; that's why I keep asking reynolds.

Lott is good. Also try David Hardy. He made the Second Amendment Documentary. Here's his blog http://armsandthelaw.com/

176 I think local restriction on gun control in the West is consistent with the idea that the federal Constitution was seen as a check on the federal government, and the regulation of most police power issues was left to the states.

177 but a guy arrested for such a violation?

I think those guys were shot.

178 Anyone arrested and tried for a gun crime would have a reason and opportunity to offer such a defense.
No one would sue over Earp bullying them into giving up their guns, probably, but a guy arrested for such a violation? He'd have a reason.

Why would he have arrested them? He would just take the gun and not give it back. Would it be likely someone would take a case to the capitol over a $20 piece a metal you can get the next town over? Or if you didn't like it just go to the next town to begin with which is what the real purpose of the gun bans were.

Now if you didn't give it over or leave peaceably you might get arrested or shot but I would think people like that were probably already wanted anyway.

179 I thought the judges in this case did a fantastic job of laying out the history and the argument as to why the 2nd Amendment [and, it seems, the entire Bill of Rights] is so vital as to be incorporated by the 14th.

I'm not so sure I agree with the application of the intermediate standard of scrutiny to passing a law limiting the right on government locales like the county fairground. There seems to be a large difference between that and a school/courthouse.

180 Re the "Wild West" stuff. Gun ownership was so loose back then -- you could buy a six-shooter or two just by laying your money down -- that guards against bearing those weapons were almost mandatory. No one had any way of knowing if you were just a cowpoke in town on payday, or a notorious outlaw in town gunning for the sheriff. Wyatt Earp erred on the side of caution. Who was gonna buck against him? No one, that's who. The circuit judges and marshals from that time would usually back him up regardless of what the written laws said.

This same tactic was followed through in the Jim Crow South to prevent blacks from (legally) owning and carrying firearms. They couldn't really stop people from owning guns, legally or otherwise, so the only effective gun-control mechanism was on the bearing of said weapons in public.

I've never tired of pointing out that the Constitution does not bar the gun-owner from purchasing a grenade-launcher or machine-gun. State laws do. And the laws vary from state to state. There are special laws governing antique firearms, collectors' firearms, firearms bought for display purposes only, and "exotic" firearms outside the usual pistol/rifle/shotgun trinity. This is a fairly murky area legally, and always has been. I don't know if Heller will really do much to enlighten this area or not. Can I own a Gatling gun? What if I want it purely for show? Do I need to disable it or render it inoperable? What if I build my own Gatling gun? What if I restrict its rate of fire to an absurdly low 1 round per minute? It's still a machine-gun, technically -- but its so absurdly inefficient that a boltgun could be fired much faster.

181 tho most would have at least given it the fig leaf of "maintaining order and domestic tranquility."

Posted by: XBradTC at April 20, 2009 03:07 PM (vzrxD)

Or better yet say the promoting the general welfare as in:

Marshal: Okay, hand over your guns before you go into town.

Cowpokes: What law says you can take my guns?

Marshal: Part of my job is promoting the general welfare ain't it?

Cowpokes: How does taking my gun promote welfare?

Marshal: Well, it fair to me, I take them from everybody.  Hand 'em over.

182 Someone pinch me.

183 #133 'Nam Grunt

Welcome!
Lot's of great posters here, many with great senses of humor.
One of the best places on the net.

184

But my larger point was that Wyatt Earp would be -- by simply being 100 years closer to the colonists -- somewhat informed about what the "norm" of gun rights was.

This argument is... atrocious. Dude, LOFL. I mean (sorry, but) off issue even, he may have been more informed about what the norm of gun rights was, so it would be nifty if you could ask him. But just because (and even if) he was more informed doesn't mean any of his actions will reflect that, or that he cared to act within the norm.

I mean, being closer to the colonists in time, maybe we should look to Rutherford B. Hayes for constitutional jurisprudence. How bout Benedict Arnold?

Napoleon Bonparte?

Just because a dude is chronologically closer to being a contemporary of the authors of a document, his actions represent the intent of those authors? Huh?

185

Technically, the period when we had a "Fairness Doctrine" in place was closer (chronologically) to the colonists era, therefor, that legislature represented the original intent of the 1st ammendment more closely then todays laws do.

Franklin D. Roosevelt was closer to being a founding father then Ronald Reagan was, so by virtue of being 50 years closer to the colonists, he had a greater understanding then Reagan could have of what the norm was in those times.

186 Does this mean even the lunatics of the ninth circuit are afraid of the lunatics running this country?  Now I really am afraid!

187 Just because a dude is chronologically closer to being a contemporary of the authors of a document, his actions represent the intent of those authors? Huh?

I have some sympathy for ace's argument.

How many people do you know who carry a pistol with them everywhere they go? Or even own a pistol? Back then, everybody was strapped; guns were nearly ubiquitous. Guns and gun ownership was not a theoretical argument -- it was an everyday issue that had to be dealt with in a hundred different ways. Wyatt Earp wasn't a lawyer thinking about guns in the abstract. He was the sheriff of a town filled with hombres packing heat.

188 The Due Process route is one of "selective" incorporation. The court must find the right is "fundamental" to incorporate it. They so found here.

This has always pissed me off to no end.  From what I can see judges just incorporate the parts they like and leave the rest.  What does it mean to have the right to keep and bear arms when it's illegal to keep and bear arms?

189

Back then, everybody was strapped; guns were nearly ubiquitous. Guns and gun ownership was not a theoretical argument -- it was an everyday issue that had to be dealt with in a hundred different ways.

Yes. But if you want to look for something vaguely relevant to TODAY, look at the cities back east. They were civilzed, at least.

So much of the west was utterly lawless. It didn't matter what the laws were because they couldn't be enforced. Ditto on the law-enforcers - it didn't much matter what the law was. As has been pointed out - Earp could do WTF he wanted where he wanted. As could most lawmen. Hell, most lawmen were criminals. Guys like Wild Bill Hickock or Doc Holliday were sherrifs in 1 town and wanted men in another. It was rule of man and rule of the gun because that was the only rule they had.

Wyatt Earp wasn't a lawyer thinking about guns in the abstract. He was the sheriff of a town filled with hombres packing heat.

Exactly - which is why his actions are absurdly irrelevant when talking about interpreting the constitution. Dude was not a lawyer or law scholar or frankly, probably, even remotely concerned with constitutional law. He may have been fairly ignorant of it, even.

He was also a sheriff in a town that teetered on the brink of being outside the law altogether (as did he, himself). In a place like that, you'd get the same chaos with knives. And fistfights. And so he did have to deal with that, as well.

Meanwhile in a sensible place with actual proper law enforcement and an established community not isolated by hundreds of miles of lawless uninhabited wilderness, you can have guns up the wazoo and yet no bands of raiders show up to knock off the bank and ride off with the horses.

For the exact reason you just outlined, it's absurd to look at Earp's actions for any idea of what the intent of the constitution was, there's no 'there' there. It's nonsequitar. And for the same reason still, it's just as absurd to look at Tombstone, AZ as a model for what Springfield will turn into if you arm people.

Maybe if Springfield only had 1 law enforcement official with a half dozen deputies in the whole town, and the only other officials with any jurisdiction were 3 weeks away by train, sure. Then it's probably quite apt.

190 I dont understand this fucking shit. Maybe I shouldnt be drinking in the middle of the day.... Stoli 100 FTW.

191 Entropy:

Well, let's update Dodge City in the 1800's to Los Angeles today. In greater Metro Los Angeles, probably around 5% of the population are armed at any given time of the day. And I mean armed, not just people who have a gun at home. They are packing. And these folks are mostly criminals or folks who have to live around them: people in Brentwood, City of Industry, South Central, Compton. I've personally seen cops give everyday joes a pass when they turn up heated, even if they don't have a permit. The cops know the score in those neighborhoods.

The law should be evenly applied in theory. But in theory, theory is the same as practice; in practice, it differs. Sometimes application of the law works against the intent of the law. Which in this case, is to make the citizens as safe as possible.

192 Bad ass.

193

Well, let's update Dodge City in the 1800's to Los Angeles today.

So again, same thing. You're talking about a place where law enforcement is either incapable or barely capable of actually enforcing law.

That's when "Marshall Law" applies, and that's largely what you call what guys like Earp did.

But.... I'm not sure WTF your point is, honestly.

The law should be evenly applied in theory. But in theory, theory is the same as practice; in practice, it differs.

Umm... You don't have to issue guns to criminals dude. It's shall not be denied "Without due process of hte law". Most of those criminals are carrying illegal firearms to begin with. And can be denied gun ownership on the basis of being a felon, of not having a permit, etc. etc. This isn't an 'uneven application' issue to say that thugs and gangbangers shouldn't have guns. That's non-sequitar.

It also has nothing to do with what I said. I didn't even jump into the gun argument... I'm just saying that any reference to Wyatt Earp is coming out of left field and bares a striking resemblence to the Wookie Defense. WTF?

Sometimes application of the law works against the intent of the law. Which in this case, is to make the citizens as safe as possible.

The intent of the law should not be to make citizens as safe as possible. That would justify this bullshit where Illinois says I have to wear a seatbelt. Hell, that would justify Illinois passing a law requiring me to wear a safety helmet and water wings anytime I step off my property.

Don't give them ideas.

194 Entropy, you're arguing just to be difficult. You understand perfectly well the point I'm making, I suspect. You just don't like it.

I'm a gun-owner myself, and I've heard both sides of this argument about a million times. To contend that ordinances cannot or should not regulate the possession of weapons is just asinine and completely unfounded by American law at any point in our history.

195 194 Entropy, you're arguing just to be difficult. You understand perfectly well the point I'm making, I suspect. You just don't like it.

I'm a gun-owner myself, and I've heard both sides of this argument about a million times. To contend that ordinances cannot or should not regulate the possession of weapons is just asinine and completely unfounded by American law at any point in our history.

Posted by: Monty at April 20, 2009 04:18 PM (/0a60)

Yeah, you're a FUCKING genius. Regulate =/= Infringe ?! Right.....

196

Entropy, you're arguing just to be difficult. You understand perfectly well the point I'm making, I suspect.

No, I really don't.

Wyatt Earp? Look at a Wookie? WTF does a wookie have to do with the 2nd ammendment?

Hey, let's just bring up Publius Flavius Vegetius Renatus for no reason, I think he he fits in here somewhere. How are you going to argue with that?

Vegetius, Monty. Vegetius. Huh? What about that?

Your argument seems to be different then what Ace offers (I Can't say for sure as I don't understand either). Tombstone, AZ was a nasty rough-and-tough place where harsh measures were required to maintain order.

OK. Again, WTF does that have to do with the 2nd ammendment?

To contend that ordinances cannot or should not regulate the possession of weapons ....

Is something I have not contended. I sought to make no contentions regarding guns whatsoever in this tread. It's almost off topic, I'm just noting how nonsensical and random it is to pull Wyatt Earp out of a hat as if he had anything to do with anything.

My position is NOT that ordinances cannot or should not regulate the possession of weapons.

My position is that rogue references to Tombstone, AZ makes about as much sense in this discussion as discussing the lightsaber policy on Tattooine would.

197

This, like the Heller decision, is not something to get too overjoyed about. I fully expected the next case to come through to result in incorporation. It should have been done in Heller but that footnote saying “not” along with all the “but the State can have reasonable restrictions” look like additions added by Scalia to satisfy Kennedy to get him onboard with the decision. All of that flies in the face of “shall not be abridged” and pure common sense.

 

As for “incorporation” I also feel that it is made up bullshit but I can go with it either way as long as they are consistent. Either incorporate ALL or incorporate none. This bullshit of incorporating the ones the liberals want and ignoring the others. 

 

On this subject on Beck right now the “mustache” is talking about that treaty that eliminates the 2^nd amendment via a treaty. They keep talking like a treaty can override the Constitution and I researched this last week. II found a site that hjas case after case where SCOTUS has ruled that it can not. They have done some slippery slope stuff on occasion but, in general, a treaty can not violate the Constitution.  

198 Both Rove and the Mustache just said we are only one generation away from losing all our Constituional rights to the globalists because most Americans do not participate in the political process.

199 some stuff in the bor doesn't make sense to incorporate. jury by 12 men? Why does it have to be 12? 12's a good number, but some states require less, and it's arbitrary to say it must be 12.

some states don't require unanimity -- you can be convicted with one or at most two dissenters.

this stuff could be incorporated, but you can maybe see why it's not.

200 I can haz handgunz?

201 I'm a Concerned Conservative Christian Patriot and everyone knows that 99% of people in households with guns sustain serious injury and/or death every year. Guns are Ultra-Dangerous inanimate objects. BAN EM' ALL!!!

202 Here's the bottom line for me: If you are arguing that something will produce an undesirable outcome, then you are not making a Constitutional argument.

"Unconstitutional" is not synonymous with "bad idea."

203

some stuff in the bor doesn't make sense to incorporate. jury by 12 men….

 

Not all States have a Grand Jury system either. All that being said it’s too bad. Either get them all or get none. The Supremes should have considered that when they started on this route.

 

The practice of Constitutional Law at the appellate level should not be done in a manner that is meant to “assure fairness” or even “justice”. At that level con law should ONLY be about determining if a law fits within the parameters of the Constitution. That is the major problem that I have with O’Connor and Kennedy. They are outcomists, meaning that they decide the “equitable” outcome and then twist their write-ups to fit that outcome.

 

Speaking of O’Conner and Kennedy all should read Supreme Conflict by Jan Crawford Greenburg. If you have any respect for either of them you will lose it.

204 The phony incorporation doctrine has been used with one and only one goal in mind: the complete destruction of Federalism.  I'm a little surprised to see Ace gleefully joining in on this.  The Washington establishment does not want 50 states making their own laws.  They want one government in Washington dictating every aspect of life for every man, woman, and child.  This is the purpose of centralization; and incorporation is the way they're doing it.

205

When guns are outlawed, only outlaws will have guns.

206 To tie together a thread from last night and this one:

I have a hardcore bleeding heart liberal friend. He, early one night, chastised me for my smoking under the pretext of his deep "care" for me. I told him he could shove it and he took offense before demanding we change the subject (even though he brought it up). Later that night, he argued against gun ownership and against the right to self defense in the home. Ironic, no?

These people really haven't thought these things out. That or they are not capable of cognitive dissonance.

By the way my interview with the recruiter went well today, he wrote "Awesome" in the health section after learning that I had absolutely nothing in my medical history. No broken bones, no counselor activity, no drugs, no nothing. Was a funny moment. I bet half the people he sees now are on Ritalin. I'll be on a Special Forces track. The Army isn't exactly hard up for recruits right now because of the recession, but they still love the looks of a 16K college grad. I'm taking the ASVAB tomorrow. Exciting shit.

207 Ace: Short background: the Bill of Rights speaks of limitations of the federal government over citizens. It does not, by its own operation at least, restrict how the states may limit freedoms.

Oh come on, Ace - didn't you go to college?

The First amendment places limits on the CONGRESS:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
  The Second Amendment places limits on EVERYONE AND EVERYTHING: 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.
  NO ONE AND NO THING MAY INFRINGE UPON THE RIGHT TO KEEP AND BEAR.

TRTKAB is an absolute and unassailable right - it may not be infringed by Congress, or by the Executive, or by the Judiciary, or by the States, or by the Localities, or by Private Citizens or by Any Other Entity.

208 JESUS TITTY FUCKING CHRIST THE HTML PARSING OF THIS SOFTWARE PACKAGE IS BROKEN BEYOND ALL HOPE.

Ace: Short background: the Bill of Rights speaks of limitations of the federal government over citizens. It does not, by its own operation at least, restrict how the states may limit freedoms.

Oh come on, Ace - didn't you ever read the Constitution?

The First amendment places limits on the CONGRESS:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Second Amendment places limits on EVERYONE AND EVERYTHING:

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.

NO ONE AND NO THING MAY INFRINGE UPON THE RIGHT TO KEEP AND BEAR.

TRTKAB is an absolute and unassailable right - it may not be infringed by the  Congress, or by the Executive, or by the Judiciary, or by the States, or by the Localities, or by Private Citizens or by Any Other Entity.

209

The phony incorporation doctrine has been used with one and only one goal in mind: the complete destruction of federalsim.

 

From the standpoint of the BOR it doesn’t materially effect federalism. Almost ALL States have the same BOR in their own Constitutions so it didn’t have that much of an effect.

 

Where it does have an impact is when you get the liberal judges joined by Kennedy who use them or “foreign” to overturn State law. They would do this regardless of incorporation.  BTW, there is no such thing as “incorporation” of foreign law but we are being forced to eat tat shit sandwich as well.

 

The bottom line is that to the liberals the Constitution is meaningless when compared to their “feelings”.

210 this stuff could be incorporated, but you can maybe see why it's not.

Aye, I see it.  But having judges pick and choose to incorporate this, but not that gives them way too much power.  If it were up to me there wouldn't be any incorporation at all.

211

@191: "And these folks are mostly criminals or folks who have to live around them: people in Brentwood, City of Industry, South Central, Compton."

Brentwood?  Don't you mean Inglewood?  Brentwood's more of an upscale area.

212 I really enjoy non-lawyers trying to dissect complicated legal opinions.

**************

alexthechick, Gabrial Malor and ace,

You're ruining the fun of reading the non-lawyer stuff.
Stop trying to write sense.

213 I wonder where Judge Kozinski is on this.

214 "Second, the right to bear arms is a protection against the possibility that even our own government could degenerate into tyranny, and though this may seem unlikely, this possibility should be guarded against with individual diligence."

And if an armed population is to act as protection against a tyrannical government, they should have he same weapons the government has.

I am a firm believer in allowing pretty much any personal weapon the military has for the civilian population, maybe even up to squad weapons, with VERY HARSH penalties for using them for criminal activity including a lifetime loss of the right to vote.
 

215

From the standpoint of the BOR it doesn’t materially effect federalism. Almost ALL States have the same BOR in their own Constitutions so it didn’t have that much of an effect.

I know you said "materially," but that's not really the point. It violates a foundational concept: we are citizens of the states, and it is to the states that we owe our allegiance. The states were always considered to be first-class logical entities who joined together in union to create the central government for their own convenience—not the other way around. Anything that happens at the national level is supposed to bubble up from the representatives of individual and independent states. This was never changed, just ignored. I choose not to ignore it.

216 I'm taking the ASVAB tomorrow. Exciting shit.

The ASVAB is meant to be taken intoxicated.

217 Monty:

I bet you're the type of "gun-owner" who has an old flintlock on the wall for a conversational piece when your liberal college buddies come over for cocktails...I also would wager that if you did own any firearms that FUNCTION it would probably be some VERY expensive scrolled shotgun from Europe that you use once a month at the gentlemen's shooting club to shoot clay targets and retire for snifters of brandy afterwords...GUN owners own firearms of many types for many reasons...and as long as those reasons don't include robbing someone or shooting them for kicks, then it should be THEIR business what type and how many they own...so put that into your Marxian pipe and smoke it!  MOLON LABE!

218 Yeah Yeah Yeah if you think the 9th circuit is protecting 2nd  ammendment rights by encompassing them with the 14th I say youi got to be naive. This move locks in any Federal legislation coming that would take away the guns of US citizens.

219 so put that into your Marxian pipe and smoke it!

heh.  Not from around here are you?

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