posted on April 5, 2002 11:18:19 AM new
No reamond, you mean that I may not remember much of the sort of undergraduate constitutional law course that you seem so engrossed in. Studying for a degree in Sociology? How rewarding? I hope that your professors are either stupid or merciful - sometimes it helps to be the most responsive and vocal student in the class, doesn't it?
But your reliance on the somewhat mealymouthed Miller case is where the misguidance lies, and you have that in common with the rest of your anti-gun cohorts for it is about the only spindly leg that the supreme court has ever offered to your ilk, however unintentionally the did so. I am leaving for Oregon as soon as my wife Chris gets home at or a little after noon and will be gone for some days. In the meantime why don't you go and bone up on all of the opinions offered in the following list of cases? If you do that, I think that even the obtuse you will have to agree that not only has the court addressed the issue on several occasions in cases even seemingly unrelated they have steadfastly held to the opinion that it is the clear intention of the constitution that the people retain the right to keep and bear arms. That list is (laboriously brought, just for you):
Spencer v. Kemna. 1998
Muscarello v. U.S. 1998
Printz v. U.S. 1997
Albright v. Oliver. 1994
Planned Parenthood v. Casey. 1992.
U.S. v. Verdugo-Urquidez. 1990.
Lewis v. U.S. 1980.
Moore v. East Cleveland. 1976.
Adams v. Williams. 1972
Roe v. Wade. 1973
Laird v. Tatum. 1972.
Burton v. Sills. 1969.
Duncan v. Louisiana. 1968.
Malloy v. Hogan. 1964.
Konigsberg v. State Bar. 1961.
Poe v. Ullman. 1961.
Johnson v. Eisentrager. 1950
Knapp v. Schweitzer. 1958.
Adamson v. Calif. 1947.
Hamilton v. Regents. 1935.
U.S. v. Schwimmer. 1929.
Stearns v. Wood. 1915.
Twining v. N.J. 1908.
Trono v. U.S. 1905
Kepner v. U.S. 1904.
Maxwell v. Dow. 1899.
Robertson v. Baldwin. 1897.
Brown v. Walker. 1896.
Miller v. Texas. 1894.
Logan v. U.S. 1892.
Presser v. Illinois. 1886.
U.S. v. Cruikshank 1876.
Scott v. Sandford. 1857.
Houston v. Moore. 1820.
While these cover the scope pretty well, I wouldn't go placing a great deal of your hopes upon a modern court's help. You see since William Rehnquist was appointed Chief Justice in 1986, six different opinions have addressed the Second Amendment. The authors of the opinions include the small left wing of the Court(Justices Stevens and Ginsburg), the Court’s right wing (Justices Thomas and Rehnquist), and the Court’s centrist Justice O’Connor. Every one of the opinions treats the Second Amendment as an individual right. Except for Justice Breyer, every sitting Supreme Court Justice has joined in at least one of these opinions—although this joinder does not prove that the joiner necessarily agreed with what the opinion said about the Second Amendment. Still, five of the current Justices have written an opinion in which the Second Amendment is considered an individual right, and three more Justices have joined such an opinion.
So good luck to you in your hapless cause. Such a shame that you couldn't find a more useful avenue upon which to expend your meager energies. Life might then bring you the reward which your unfortunate appearance has denied you.
posted on April 5, 2002 12:05:08 PM new
krs- Your first two cases aren't even 2nd Amendment cases. I am sure you also have District and Circuit as well as state cases which are irrelevant save in limited jurisdictions and are all overturned with one Supreme Court ruling. Again,you don't know how to find, interpret, or apply Constitutional authority.
If we had an IQ test for owning firearms, you'd be unarmed.
The facts are that the 2nd Amendment as originally drafted applied only to the Fed govt in its relationship to citizens as an injunction of the Federal govt from disarming citizens. It did not and was never meant to protect the citizen from being disarmed by his/her state govt.
Later cases do apply the 2nd Amendment as against the states in relationship to disarming their citizens, but the analysis continually turns on the interpretation of a well regulated militia.
Where I learned Constitutional law is of no consequence, other than the fact I learned it much better than you.
posted on April 5, 2002 01:03:57 PM new
I believe the words "seemingly unrelated" apply here. The first case involves deprivation of rights, for example.
"The only such consequences
that Spencer deems relevant, moreover, appear to be
statutory disabilities such as loss of the right to
vote or the right to own a gun. Consequences that
are within the power of the defendant to avoid--
such as a sentencing enhancement, which presupposes
his deciding to commit another crime--are excluded."
This is a good site to get a general idea of gun laws, both federal and state. There are warnings about using the info as legal advice and you are advised to consult a local attorney knowledgeable in firearms laws.
posted on April 5, 2002 01:15:54 PM new
http://www.law.siu.edu/lawjour/25_3/Muscarello-Casenote.pdf
The second case is Shooting From the Hip: The Supreme Court Interprets the Meaning of Carries A Firearm: Muscarello v. United States, 524 U.S. 125 (1998).
posted on April 5, 2002 04:10:39 PM new
Muscarello doesn't address the right to keep and bear arms. That case is creating/discovering the "judicially" defined term "carries" as applied to a criminal statute. It doesn't addres the right to bear arms, but determines if a gun in the glove compartment of a vehicle satisfies the term "carries" as an element in a criminal statute.
The case doen't address whether carrying a gun is a Constitutional right. It merely decides that a gun in the glove compartment satisfies the "carries" a firearm for purposes of a criminal prosecution assessing a 5 year mandatory sentence.
The modern cases that will address the Constitutional issue of the right to bear arms will likely be when a state limits the possession of firearms in some manner and someone will ask for Supreme Court review and use the 2nd Amendment to quash the law.
The first question will be whether the 2nd Amendment applies to the states. If the Court says it does then there will be analysis of the "well regulated militia" clause. A strict interpretation of the clasue means that you actually have to be in some machination of a well regulated militia for weapon possession to be unhindered by state laws, a broad interpretation can mean almost anything.
The thing to watch is the first element. Scalia, Rhenquist, and any others bent on an "original intent" analysis should conclude that the 2nd Amendment doesn't apply to the states regulating weapons, it just applies to the Fed regulating weapons.
The conservative justices lose either way they go.
There is also the Commerce Clause doctrine that Congress has successfully used to control and regulate some weapons, like sawed off shotguns, and automatic weapons.
posted on April 6, 2002 09:31:38 AM new
Helenjw- That was a nice article Helen- the person who wrote it was brilliant- he reached the same conclusions I have posted here ! LOL.
I would add that there are a lot of "short hand" terms in the article that lawyers readily understand but lay people usually wiil not.
Most people don't realize what sort of document the Constitution was, and now is.
The drafters were making a government concurrent with their state governments. The "agreement" follows generally along the lines of the relationships between the states and the Fed and between the states, and the individual citizen and the Fed.
Notice that little in the Bill of Rights allowed the Fed to step in between the citizen and his state government. This all changed due to slavery and the Civil War.
The "Civil War" Amendments incorporated the Bill of Rights ( not all of the Bill, some such as the 2nd Amend have yet to be conclusively incorporated) to be applied as between the citizen and his state government. For instance, while a citizen had due process enforced in his/her relationship with Federal authority, the Fed did not/ could not guarantee this right if your state government denied you due process in its relationship with you.
The "Civil War" Amendments addressed the question of what good are the Constitutional rights afforded in relationship to the Federal govt if the state govt can take them away or supress them in relationships between a citizen and his/her state? Freed slaves were to be directly effected by this limited reach of the Federal Constitution.
So the questions remain - is the 2nd Amendment incorporated so as to be applied to the relationship between a citizen and his/her state and is it OK for a state to deny the right to bear arms as long as the Fed doesn't - does the 2nd Amendment bestow an individual right via the Civil War Amendments ? If the 2nd is an individual right which the state and/or Fed govt can not unduely impinge upon, then what will be the result from the well regulated militia clause ?
Her is the million dollar puzzle. Conservative judges like to limit incorporation findings and leave things as much as possible to the states. Rather than having federal judges determine and shape laws via Constitutional interpretation, allow state legislatures to exercise the will of the people of the state. Scalia takes this position all the time.
The justices may/will some day be called to fully and clearly incorporate the 2nd Amend as an individual right to encompass the conservative issue of the right to bear arms. Then state gun control will hinge on the Constitutional issue of interpreting the clause as applied to all state laws. This is traffic that conservative "states rights" judges do not want. They realize that gun rights that function well in Wyoming do not translate well to New York City, yet if the justices hammer out Constitutional holdings incorporating and defining the scope of the 2nd Amend, these holdings will be the law of the land, not just parts of it.
It seems on the surface that the cautious path for gun enthusiasts would be to establish not to incorporate the 2nd Amend as an individual right. All the marbles for gun ownership are then placed on the Supreme Court's ongoing interpretation of a well regulated militia. Nothing short of a Constitutional Amendment can change their ruling for decades to come. This is why the NRA is very cautious about bringing a suit and which suit to bring. The NRA is constantly counting heads on the court. There is also the danger that the Commerce Clause will butt up against the 2nd Amend in regulatiing guns nationwide. The Commerce Clause rulings have well established the Feds right to regulate weapons.
If the Court doesn't fully incorporate the 2nd Amend either by ruling or because a suit has never been brought on point, then gun lobbies can mount political battles in each state/ legislative jurisdiction. It becomes a political question rather than a Federal Constitutional question, subject to changes at the legislative level.
