He loaded a lot on the plate, so I'm going to spread this out over a couple posts this week, and do everything in bite-sized chunks.
I have gone to Law school and I have worked in a top law firm (as an intern) and everywhere I turn the people with the experience in the trenches that I respect tell me that the second amendment is NEVER the argument.Unless things radically change, I'd say this assessment of the current state of things is inarguable.
I continually talk to experienced, smart, creative attorneys that I respect who tell me there is no second amendment. Yesterday I had a long talk with the partner I work for and he told me to "forget the second amendment, it was poorly written, it's been completely de-balled. U.S. gun laws are entirely statute driven and it has been increasingly thus since "U.S. v Miller" in 1938. He said with the exception of "U.S. v Lopez" there are no meaningful constitutional arguments for inalienable gun rights. The courts have routinely upheld restrictions on possession and ownership particularly local ordinances.
I should throw in that these are seriously constitution believing, gun owning, gun in the top desk drawer attorneys with years of experience, not the bRADY BUNCH.
I've been saying for some time that those in power will not allow that balance to significantly change unless forced to. However, it is also my opinion that there will be a "legal resolution" from the Supreme Court on the Second Amendment, and sooner rather than later, and that individual rights will be acknowledged. Perhaps Parker will be that case.
Did I just contradict myself? I don't think so, because I don't think such a ruling will ultimately prove useful at repealing the most offensive of existing gun laws. I believe most of those will be upheld as "reasonable restrictions" where there is a "compelling state interest."
Why do I think SCOTUS will hear and decide on a case? I believe the tension between the Fifth (Emerson) and Ninth (Hickman and Silveira) Circuits can't be allowed to perpetually stand. It's in the interests of the federal government to have one interpretation of the Constitution--"one Ring to rule them all..."
So far, the "High Court" has managed to duck the issue. Some in the "pro-gun camp" say this is a good thing, because the court was not properly stacked to rule for an individual right. This was a significant reason they opposed--and tried to derail--Silveira, citing how it could create "bad precedent." Many of these critics conveniently forgot to mention how the precedent they brought about in Hickman solidified the state of California's legal position that there is no individual right.
That SCOTUS refused to hear the case was not really a surprise. Their dilemma: They couldn't rule that 2A is an unalienable right, applicable to the states as well as the national government, that shall not be infringed, because that would erode the monopoly of power--and no "authority" gives that up unless forced to. And they dared not rule that there is no individual right, because that would provoke widespread defiance and disobedience that could well get out of hand.
The time--and the cases--were not "right" to serve the purposes and maintain the balance.
That's where John Ashcroft showed the way, albeit in an often overlooked footnote...
More later.
I've heard the "compelling state interest" argument in relation to several cases that have been decided against the interests of a free populace. As a counter argument, don't the people have an overwhelmingly compelling interest in the government being kept within the bounds set for it, regardless of the government's interest(s)?
ReplyDeleteThat's an excellent point tpb0918 has made. The "compelling state interest" can become a species of sweeping clause.
ReplyDeleteIf it's that all-fired compelling, you ought to be able to get two-thirds of Congress and thirty-eight state legislatures to pass it.
Indeed. But look at what a mess they've made of the Commerce Clause, which gives Congress the power "to regulate commerce among the several States." Nowadays, if they curtsy in that general direction, Congress feels empowered to do nearly anything they can dream up.
ReplyDeletePrecedence is what is killing us. For then we are arguing the point from a faulty base. The argument must return to the FUNDAMENTAL LAW. That IS true Constitutional construction. Anything else is repugnant.
ReplyDelete"Now, in questions of this sort, precedents ought to go for absolutely nothing. The constitution is a collection of fundamental laws, not to be departed from in practice nor altered by judicial decision, and in the construction of it, nothing would be so alarming as the doctrine of communis error, which offers a ready justification for every usurpation that has not been resisted in limine. Instead, therefore, of resting on the fact, that the right in question has universally been assumed by the American courts, the judge who asserts it ought to be prepared to maintain it on the principles of the constitution."
- John Bannister Gibson, in dissent in Eakin v. Raub, 12 Sergeant and Rawle 330, Pennsylvania 1825
The trick is, getting the court to see it is in its own best interest to pull its head out....OR ELSE....
Case in point:
>Wolfgram Amicus brief
In it Wolfgram tells the court;
"that while Magna Carta explicitly provided for lawful, violent rebellion to secure effective Justice, the purpose of such declaratory language was not to "legalize" rebellion per se, but to insure that the King understood it was through the threat and demonstration of pending violence that substantive Justice could peacefully be secured. Hence, by analogy, the real purpose of our Second Amendment in relation to the Petition clause is revealed...."
The court just needs 'convincing'. They need to remember their TRUE purpose;
"...No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid..."
"...It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A CONSTITUTION is, in FACT, and MUST be regarded by the judges, as a FUNDAMENTAL law...." - Alexander Hamilton, Federalist #78
Argue away from the base, especially with what is yours already by nature - you lose.
80 million + gun owners is a powerful 'convincing tool', time to exercise it if only in 'show'. But, there enters the next problem, unity....
Dave - Here is a legal site that has more firearms court cases, with pertinent quotations, than any I've found;
ReplyDeletehttp://www.healylaw.com/