Re: US Finally Kills The 2nd Ammendment
Further appeals to Congress and the states are no longer a sure bet. The soap box and the ballot box have been throughly tried, is it now time to get out the ammo box?
You're forgetting the jury box.
Are you forgetting that the Fat Lady on the jury, at least in the 9th Circuit, already sang? That's how we got to where we are. Could other juries in other cases decide differently? Sure. But why wait any more than Congress or some States may wait? In two key cases last century the logic of the Supreme Court or lack of it was clearly revealed as they tried to somehow interpret away historical record and Founder intention to square the 2nd Amendment with statist needs. In Cases v. United States, 131 F.2d 916 (1st Cir. 1942) the Supreme Court unbelievably held that U.S. v. Miller, 307 U.S. 174 (1939) had not intended "to formulate a general rule" regarding which arms were protected by the Second Amendment and therefore many types of arms were not protected. In fact Miller held that it is the firearm itself, not the act of keeping and bearing the firearm, which must have a "reasonable relationship to the preservation or efficiency of a well-regulated militia. Meaning if the weapon qualified any citizen could keep and near it. A plain reading of Miller meant only weapons with non-military application could be regulated by Congress and that could not be right because it challenged the 'right' of government to have a force monopoly. So the Court's reasoning was that the Founders could not have meant for the federal government to have any effective deterrent to its tyranny from the citizenry. Even after absorbing the opinion, I cannot fathom how convoluted a reading of the historical record those on bench needed in order to arrive at their conclusion. Pretzel logic indeed!
At 08:10 PM 1/9/2004, you wrote:
Further appeals to Congress and the states are no longer a sure bet. The soap box and the ballot box have been throughly tried, is it now time to get out the ammo box?
You're forgetting the jury box.
Are you forgetting that the Fat Lady on the jury, at least in the 9th Circuit, already sang?
Um, no, it didn't. There was no jury in Silveira - Silveira was a constitutional challenge to legislation, which is a question of law decided by judges, not a fact question decided by juries. Did you actually read the opinion, or just read some screwball summary of it?
In Cases v. United States, 131 F.2d 916 (1st Cir. 1942) the Supreme Court [...]
Nope. That opinion was written, as the citation indicated, by the Court of Appeals for the First Circuit, not the Supreme Court.
unbelievably held that U.S. v. Miller, 307 U.S. 174 (1939) had not intended "to formulate a general rule" regarding which arms were protected by the Second Amendment and therefore many types of arms were not protected.
While I do think that the 2nd Amendment does, in fact, protect an individual right to keep and bear arms, I think that the 1st Circuit's reasoning re _Miller_ in _Cases_ is actually quite reasonable. The opinion points out that interpreting _Miller_ so that it says the 2nd Amendment means that Congress can regulate firearms, but only ineffective or useless ones, is nonsensical. While I don't think the Ninth Circuit reads _Miller_ in a reasonable fashion, I don't think the "only useless weapons may be regulated" is an especially rational interpretation of it, either.
A plain reading of Miller meant only weapons with non-military application could be regulated by Congress and that could not be right because it challenged the 'right' of government to have a force monopoly. So the Court's reasoning was that the Founders could not have meant for the federal government to have any effective deterrent to its tyranny from the citizenry. Even after absorbing the opinion, I cannot fathom how convoluted a reading of the historical record those on bench needed in order to arrive at their conclusion. Pretzel logic indeed!
Yes, that is an unreasonable conclusion to reach. It is also unreasonable to conclude that the 2nd Amendment means that no regulation of weapons is constitutionally permissible. Even the 1st Amendment - which contains the words "shall make no law" - is interpreted to allow some regulation of speech. (e.g., shouting theater in a crowded fire, etc.) -- Greg Broiles gbroiles@parrhesia.com
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