US Finally Kills The 2nd Ammendment

[Greg Broiles]

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 at parrhesia.com