GUN CONTROL ADVOCATES ROLL THE DICE (STUPIDLY!) ON LIKELY LANDMARK ‘RIGHT TO BEAR ARMS’ SECOND AMENDMENT CASE

Bill,

You act like your view of the Miller case is universal. If that is so, then why did the court rule that Miller failed to provide evidence that a short barreled shotgun is suitable for military use? Why did the court not ask Miller for evidence that he was in an organized Militia? Oh, and are you concerned that no one was there to represent Miller?

Why are all the Bill of Rights for the people except the second ammendment? Why does the "people" in the second ammendment refer to the states where every other use of the word in the constitution refers to individuals?

-George

One of the interesting aspects of the Parker case is how NRA tried every maneuver possible to derail the case. NRA continues to labor under a terrible "not invented here" syndrome. As many Ca. political watchers know all too well, California gun owners suffer under some legislative restraints that a more effective, politically savvy (read less fund-raising oriented) NRA could have negotiated on their behalf. But alas, then the sky would not be falling (as badly) and contributions might drop - NRA would suffer, but gun owners would benefit.--hmmmmm?

First of all, The NRA isn't involved in Parker vs. DC.

Second, the Supreme Court made no such ruling in the 1930's. The decision was that a sawed off shotgun wasn't a militia weapon, therefore it wasn't protected as the type of arms that are suitable for carry by a militia. The Miller Decision simply allowed the BATF to continue outlawing certain things on a whim.

Third, even if it were, The Militia is composed of the citizenry, not of some military organization run by the government.

Finally, if the Supreme Court rules that individual citizens (aka "The Militia") don't have the right to keep and bear arms, then you're likely to find out exactly what the Second Amendment was intended to protect.

I'll give you a hing: It's Freedom. Liberty from over-reaching government. The very same thing that our Founding Fathers had just fought for when the document was written.

The right exists whether it's on paper or not. Whether a panel of judges says it has or not. It always has.

Typo above. I meant to type "hint" instead of "hing". My mistake.

So if someone who enjoys the freedoms the 2nd amendment offers is a gun zealot is someone who enjoys the freedoms the 1st offers a speech zealot?

hmmm..

If SCOTUS rules correctly, in line with the conclusions drawn by Lawrence Tribe and other Constitutional scholars, it will rule that the Second Amendment recognizes (not grants: read the Federalist Papers) an individual right to keep (possess) and bear (carry) arms.

This was, beyond question, what those who wrote the Bill of Rights intended. I will not bother to cite quotations from the late 1700's and early 1800's to demonstrate this fact.

Cavala should cease the polemics and study some real history.

To better understand the Second Amendment to the United States Constitution it is helpful to consider how almost every reasonable person would interpret this amendment if it did not involve something which is considered controversial or politically incorrect by some and idolized by others. Arms in the possession of ordinary citizens meet both criteria. Let's, for the sake of argument, suppose that the Second Amendment dealt with books, not arms or weapons, and read like this: "A well educated electorate, being necessary to the maintenance of a free State, the right of the people to own and read books, shall not be infringed." Does anyone really believe that liberals would claim that only people who were eligible to vote should be allowed to buy and read books? Or that a person should have to have voted in the last election before the government would permit him or her to buy a book? Would the importation of books be banned if they did not meet an "educational purpose" test? Would some States limit citizens to buying "one book a month"? Would inflammatory "assault books" be banned in California?

Emotion in Reading
The meaning of the Second Amendment becomes quite clear if one removes the emotional "gun" issue. Let's restate the 2nd in another context:

A well educated electorate, being necessary for the security of a free state, the right of the people to keep and read books, shall not be infringed.

If this were the law, would only educated people have the right to keep books? Or, would only the voting electorate be allowed to read? Of course not. All the people would have the right to keep and read books, and the state would benefit by having a more educated electorate.

There is NO requirement to be a member of a Militia to have the RIGHT to keep and bear arms. However, the more people who DO, the better the security of the state.
Gary Possert, Lancaster, CA

The right of the people to keep and bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right. [Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846)]

How might the Supremes rule? I think this will be a 6-3 decision with Thomas, Alito, Kennedy, Souter, Scalia and Roberts upholding the lower court's ruling. Stevens could make it 7-2. I doubt that Scalia will do any "withering" of the pro-freedom arguments. Scalia is an originalist. The original meaning of the Second Amendment is crystal clear - and no longer seriously debated by those who have studied its origin and history. Besides, Scalia and Kennedy have already spoken on the Second Amendment as an individual right no different from the First Amendment in its application. Should we require Cavala to "register" his column before publishing. (Perhaps that's a bad example.) Will we require people to register with the State before practicing their religion?

US v. Verdugo Urquidez foreshadows the outcome (Opinion by REHNQUIST, joined by WHITE, O'CONNOR, SCALIA, and KENNEDY):

"Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an] awkward rhetorical redundancy," Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the people of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the people of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."

People who are suckered into Cavala's way of thinking should ask themselves this question: every other time the Bill of Rights mentions "the people", it's referring to an individual right--why would the 2A be different?

If you think gun bans should be constitutional...then you need to change the COTUS. But don't try to pretend it says something it doesn't.

If the founding fathers wanted it to say "the federal govt can't tell the states they can't militias...", it would have flipping said that.

Did the "founders" intend the US Supreme Court have the authority to strike down laws passed by both houses of congress and signed by the president?

Jefferson, a "founder" did not. Marshall, the Chief Justice, acted in definance and gave the Court the authority to do just that.

The Supreme Court, not the "Founders" determine what the Constitution means. The Founders reference to "the people" was, of course, a reference to adult (over 21) white males of property. Women, African-Americans (slave or freed), persons without property
were all without the franchise.

Having said this, the 2nd Amendment certainly does acknowledge an individual right (to me). And i think that view will be sustained by some Court Majority opinion. The issue is whether that opinion will be clear or mushy, and if clear how strongly will it assert the "right" to bear arms. If it is a "right" that gives way to other "rights" that state's have an obligation to protect (the safety of the public), then the Court decision will weaken, not srengthen the position of gun advocates

Mr. Cavala quotes someone, but not the Second Amendment, when he writes:

[T]he US Supreme Court opinioned that the
"right to keep and bear arms" was a right
held by State Militias and not
individual citizens.

A quote of the Second Amendment would at least require ellipses after the word "right" to indicate that he had left out the words, "of the people". Of course, had he included them he would be harming his own argument.

But his sentence has more trouble than that. The 1939 Miller decision never mentions "State Militias". Certainly, they discuss "the Militia", but the insertion of "State" to invent a reading that the Court did not intend is mendacious.

Even if Miller was an anti-2A decision, it is good that the Supreme Court gets to hear this again. The Supreme Court has corrected itself many times in the past, most famously in Brown v. Board of Education (overturning Plessy v. Ferguson) and most recently in Lawrence v. Texas (overturning Bowers v. Hardwick). The weight of history, scholarly research, and common sense is solidly in favor of an interpretation of the 2A as being an individual right that should not lightly be infringed. My money is on a 6-3 decision with the majority solidly backing the rights of all United States citizens.

If you would even bother to read the Miller ruling, you would note that SCOTUS seemed more than happy to entertain the fact that a short-barreled shotgun was indeed a protected firearm, however the public defender in charge of defending Miller was not able to show up, nor was Miller even alive at the time, so nobody was around to show evidence that short barreled shotguns were indeed used by the military.

If someone had shown up with proof that a short-barreled shotgun was indeed used by the military at the time, SCOTUS would have agreed that it was protected, without any doubt.

Mr Carvala,
If both houses of congress passed, and the president signed, a law that prohibited Muslim Americans or Jewish Americans from having the freedom to practice worship in this country, what do you think would happen? It doesn't take a scholar in American Government or American History to figure that one out. You should be able to remember the Civil Rights cases from our history.
Yes, the Supreme Court has the authority to strike down such laws. It's part of the checks and balances of our system. Checks and balances sir.
I also submit that you go back and read the Miller decision more carefully. If you read the decision rendered by the court and not the the incorrect summary posted on the Brady Center website, you will see that the court did not rule on the individual vs. collective argument. The court, sir, ruled that the 2nd Amendments protection did not apply to a short barrel shotgun.
How the Brady Center, politicians, you, or anyone else tries to bend the Miller decision to support your agenda isn't important.
What is important is that the highest court in the country, the final word on what the 2nd Amendment protects, will finally issue a ruling on that exact question, and not some other, sideline issue, brought before the court with no competent legal representation with a hope that it may gain 2nd Amendment protection.
The fact that this issue is going before the SCOTUS scares you and the rest of the anti 2nd Amendment groups, and, it should.

Mr. Carvala doesn't deserve the kindly intellectual musing offered by those posting comments. He is posturing for the Democratic Party and doesn't have the intellectual honesty inherently required of a scholar. He is simply throwing up a red flag to bolster an extremely weak position in the name of party loyalty. For those that opposed private gun ownership, no argument is too contrived. Mr. Carvala has no standing in an intellectual debate simply because he has a preconceived notion that has absolutely no foundation. He will be running for office shortly.

Mr. Cavala,

The Second Amendment means what it says. A grammatical and linguistic analysis supports the RKBA position. Those who are against private arms ownership have to fudge cloudy issues about the dependent prefatory phrase regarding "militia" and "free state" which, in the flowery writing and punctuation of the time, was put in as a nonrestrictive justification of the penultimate clause. The meaning of the 2nd Amendment is unchanged, however, whether this prefatory lanaguage exists or not, or even whether it refers to the moon and green cheese or purple poodles: the latter "right of the people to keep and bear arms shall not be infringed" clause stands unchanged.

We also have a collection of writings of a variety of the founders all extolling the virtues of the armed citizen. Being armed was considered a natural right,
one not given - just affirmed - by documents like the Constitution. No distinction was made as to the types of weapons that should or should not be owned, and the founders indeed would be puzzled today as to what are "good guns" or "bad guns" or the peculiar "sporting focus" of today that "it's OK to hunt but self-defense is bad".

Your argument that Jefferson argued about authority of courts is moot - in the first place, we agree today that Supreme court determines Constitutionality; in the second, whatever Jefferson thought of separation of powers issues, he sure as hell was for the arming of the individual and wrote about it repeatedly during the course of his life.

As writer Xenophobe's message above discusses, Miller is indeed a poor reference to use. At best it's not useful, and in fact it may well backfire on the antigun side! Most folks don't realize that Miller (1939) was reshaped by Cases v. US (1942) - which, in short, said that Miller was outdated and just about any weapon had military/militia use, which was the concern dealt with in Miller. This, plus Parker, and upcoming "sons-of-Parker", will finally (re)show the right to keep & bear arms is well-ensconced.

In fact, as a result of the above, there is a chance that firearms may require registration. That registration would be moot, however, because the right of ownership and safe use would be absolute (except in cases of violent felons, mental defectives, and others who have lost their rights).

Laws delineating 'sporting' vs. 'military-style' would subsequently be irrelevant. State and local bans - for example, California's current assault weapons ban - would be eviscerated or at worst turned into a registration-without-prohibition.

Mr. Cavella

You sound worried. You should worry.
Everytime a blow is struck for freedom, a democrat (socialist) loses his wings.

Firstoff, why would the gun bigots want to prevent DC from appealing? Because they honestly acknowledge the possibility that they will lose. Why would they lose? Maaaybe the law is not constitutional.

Now, to address your big lie. Firstly, a decision in US v. Miller was rendered in 1939. Historically, this is quite a bit different politically than a decision rendered in 1930. As all poly-sci PHD's know (or maybe they don't) there was this guy elected named Franklin Roosevelt that had some sort of "New Deal" in 1932. Anyhow, one of the policies that his fellow-travellers liked was gun control. Small problem was that, back then, most folks knew that it meant what it said. So our friends searched high and low for a 'proper' case to show that the National Firearms Act was indeed constitutional. They happened on some scumbag (one of YOUR fellow travellers Cavala) named Miller. Mr. Miller was a bootlegger that got busted with a sawed off shotgun. Long story short the USC found that Miller's defense of the second amendment guarantee about bearing arms and all didn't apply as a sawed-off shotgun was not issued by armies, and therefore not a protected 'militia' weapon. Interesting detail of the case though, neither Miller nor his attorney showed up for court. So the USC decided on the facts of the case as they had them. Had Miller showed (with competent counsel) it would have likely been introduced in court that, in fact, a sawed off shotgun was indeed issued or used during WW I in the form of a Winchester 1898 shotgun ('trench gun') frequently sawed off in the field. This is neither here nor there though, as the USD DID decide that INDIVIDUALS have the right to bear arms and that technically only MILITARY arms were protected in the 2nd amendment.

Having said all that, considering your admission that you feel that the 2nd amendment is indeed an individual right, and also considering that the USC has CLEARLY defined a right to 'military' weapons, how can you argue for gun control???

Without predicting any future action of the Supreme Court, I say that the Second Amendment was written about the right of the people to keep and bear arms as a well regulated militia -- a right that the new federal government was not to infringe.

In Virginia's convention on ratification of the Constitution, Madison was asked why Congress had been empowered to call forth the militia. As part of his answer, Madison said, "If insurrections should arise, or invasions should take place, the people ought unquestionably to be employed, to suppress and repel them, rather than a standing army." The term "the people" as used by Madison here and in the Second Amendment was a reference to the militia.

In a purely military context such as that of the Second Amendment, the people and the militia were one and the same. Under state militia laws existing in 1789, the militia was made up of all nonexempt able-bodied men of an age to bear arms (e.g., men between the ages of 18 and 45). Militiamen were by state law enrolled and trained and were called into service when needed. In a purely military context, they WERE "the people."

In electoral context, on the other hand, the people was a different set of persons. The people as an electorate that chose Representatives (Article 1, Section 2) consisted of all those who were qualified to vote. These persons in 1789 were generally white male property owners over 21 years of age. There was no upper age limit and no requirement for physical ability.

The Fourth Amendment, in a broader application of the term "the people," uses the phrase as a reference to the public in general.

Is losing one of you most valuable lobbying opportunities a loss you can take on your taxes Bill? Maybe you should move to focusing on how the California Legislature could pass some sensible hate speech regulation now that the opportunities are narrowing?

Publius

I always find the argument that US v. Miller as ‘the case’ that has decided the gun control issue as one of irony. Let’s review.

1. The defense (Miller) did not show up to argue its side.

2. Had Miller’s attorney showed up, a shotgun could easily have been shown to be used by the militia (army) in WWI. See trench guns.

3. Had Miller’s attorney showed up, the “Militia” could easily have been defined as all those able to carry out in the general defense.

4. The fact that the opinion is obscure is only evidence that the court was left to write/decide something since none on the court had any military experience, and only one side was presented.

Yet gun control activists point to this decision as their holy grail. Now that another case is coming, they fear it as a defense will actually be presented.

It’s only right that the court revisit the issue. They can’t avoid it forever.

My guess is that the courts will re-affirm the second amendment as an individual right. However, they will probably wrap it into the 14th (12th?) amendment. Applying the due process clause will not allow felons, or mentally defective from owning firearms. Nor those with restraining orders as that can be considered a reasonable restriction by the state. That means that states have an ability to regulate their own “militias,” yet will have to provide good reason to restrict arms.

So bans on certain firearms, and ‘microstamping’ will probably stay but outright bans of everything will be off the table.

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