Re: The 2ed Amendment as a Gun Nuts Wet Dream

Pat Hines wrote:
> 
> Leif Rakur wrote:
> 
> > [EMAIL PROTECTED] (The Lone Weasel) wrote in message news:<[EMAIL PROTECTED]>...
> >
> >>[EMAIL PROTECTED] (ulTRAX) wrote in message news:<[EMAIL PROTECTED]>...
> >>
> >>
> >>>Which is why I believe the REAL universal right to bear arms is in the
> >>>NINTH amendment not the second. But it's conditional on the 10th.
> >>
> >>On which state and/or federal cases do you base this belief?
> >
> >
> > Leif speaking:  Here's what the 7th Circuit said in rejecting that
> > belief:
> >
> > [29] Finally, we consider whether Ordinance No. 81-11 violates the
> > ninth amendment. Appellants argue that, although the right to use
> > commonly-owned arms for self-defense is not explicitly listed in the
> > Bill of Rights, it is a fundamental right protected by the ninth
> > amendment. Citing no authority which directly supports their
> > contention, they rely on the debates in the First Congress and the
> > writings of legal philosophers to establish that the right of an
> > individual to own and possess firearms for self-defense is an absolute
> > and inalienable right which cannot be impinged.
> > [30] Since appellants do not cite, and our research has not revealed,
> > any Supreme Court case holding that any specific right is protected by
> > the ninth amendment, appellants' argument has no legal significance.
> > Appellants may believe the ninth amendment should be read to recognize
> > an unwritten, fundamental, individual right to own or possess
> > firearms; the fact remains that the Supreme Court has never embraced
> > this theory.[fn10](Quilici v. Village of Morton Grove, 7th Cir. 1982)
> >
> > http://www.healylaw.com/cases/quilici.htm
> >
> > -Leif
> 
>         Thereby presenting yet another demonstration of poor legal scholarship on the
> part of a Court.

And you are a graduate of which law school? And teach
constitutional law at which prestigious university? Or sit on
which bench?

How about citing case law to refute the above?

>  The Constitution is a limitation on governemnt, not on a
> citizen.

So you blatantly assert. However, your unsubstantiated opinion
is worthless.

Consider this: When the Const say Congress "shall have the power
to... coin money... declare war... raise and support armies...
etc." it gives those powers EXCLUSIVELY to Congress, and limits
citizens from doing those things. OR do YOU think YOU have the
power or right to coin money, declare war, or raise an army?
Sounds pretty much like the Const has limited YOU and other
individual citizens from getting into the money-coining,
war-declaring, army-raising game, doesn't it?

>  A citizen may do as he or she wishes unless they violate the rights of
> another.

So, do YOU have the right to coin money, declare war, or raise
an army? Seems like the exclusive authority to do those has been
delegated to Congress.

See, your sweeping generalization is not supported by law. And
who gets to determine whether another's rights have been
violated? Well, the Const gives THAT exclusive authority to the
Judiciary, NOT to YOU, private citizen! Oh, and states have
rights too, including the right to set up laws to promote the
public health and safety, including the very law that Morton
Grove reviewed. The 10th Amen recognizes that the states have
such right and power.

>  Government has no preemptive powers granted to it by a Constitution,
> state or federal.

But the states have such rights as outlined in Morton Grove, and
Cruikshank/Presser, and the 10th Amen guarantees it. The police
powers the 10th Amen guarantees are such, and they allow for
laws that restrict or regulate firearms ownership and use, as
the 2nd Amen does NOT apply to the states.

>         There is a huge body of court cases wherein the Right of the People to Keep 
> and
> Bear Arms was addressed, including the US Supreme Court, over 90 cases in fact.

False. Most of those cases (I assume you are referring to
Kopel's inflated numbers) are NOT 2nd Amen cases at all, but
have, at most, a passing mention of the 2nd Amen simply quoted
in whole or in part, or even less than that, just tangentially
dealing with the 2nd Amen in the most marginal of ways. When the
cases are reviewed, they turn out to be nothing as represented,
and none explicitly and overtly affirms any absolute personal
right to own or carry guns independent of the need to preserve
or maintain the efficiency of the well regulated militia. Kopel
and his buddies are lying hacks:

As it was, I dealt with this particular nonsense a long time
back, over two years ago, with the help of some convenient legal
scholars who analyzed his work and tore it apart! Yep, NRA Hack
Kopel just called ANY case that had even the most remote mention
of the 2nd Amen, with NO actual comment on it, and no ruling
that turned on it, and no ruling or even dicta that dealt with
it (that is, they were NOT by any conventional definition "2nd
Amen cases") a "2nd Amen Case"! And then, he just made blatant
assertions that they indeed supported an individual rights
interpretation based on HIS idiosyncratic and subjective
criteria!

When some particular cases were studied in depth, it was clear
Kopel was blowing smoke about their relevance, and overstating
the "individual" nature of any mention. "Yep, that's an
individual rights support. Yep, that one too, oh and that one,
AND that one..."

Here's from ONE of the replies:

David Yassky, Assistant Professor, Brooklyn Law School. 
http://www.saf.org/LawReviews/Yassky2.htm

Reviewing these cases is certainly instructive, but I do not
agree with Professor Kopel about their meaning -- at least not
with the strong version of his argument. Kopel's main claim is
that it is "well-settled" that the Second Amendment confers "an
individual right."[10] Supreme Court case law simply cannot
support that claim. Rather, the few well-known cases, chiefly
Miller, that deal with the Second Amendment at some length tell
us that the Second Amendment is not an "individual right" (as
Professor Kopel is using that term), and the rest of the cases
canvassed by Professor Kopel tell us nothing at all about the
Second Amendment.

This finding itself is noteworthy, however, and it suggests a
weaker version of Kopel's argument that can be supported:
Contemporary Second Amendment doctrine, which imposes very
little restriction on efforts to regulate private possession of
firearms, has been elaborated mostly by lower federal courts,
not by the Supreme Court.[11] This fact has some important [Page
192] implications for the Second Amendment, and indeed for
constitutional interpretation generally.

I will suggest some of those implications below, but first I
want to explain my disagreement with Professor Kopel. I dispute
his conclusion about the case law for two reasons. First, his
presentation of the question to be addressed--does the Second
Amendment confer an "individual" right or a "collective"
right?--is confused. Second, I challenge his treatment of the
individual cases mentioning the Second Amendment.

...
In this latter understanding, the militia-focused approach holds
that only states have the ability to challenge federal statutes
or regulations under the Second Amendment - it turns the
militia-focused approach into an argument about standing, rather
than about the merits of the claim. This would be a very odd way
to understand the Second Amendment. All constitutional rights -
even those most obviously concerned with government structure
rather than individual freedom - ultimately "belong" to
individuals in the sense that individual citizens can sue to
vindicate them.

In I.N.S. v. Chadha, [17] the Supreme Court vindicated Jagdish
Chadha's claim that congressional action harming him violated
the bicameral passage and presentment requirements of Article I
of the Constitution [18] - does that mean that these basic
separation of powers provisions are "individual rights"? The
enumeration of powers in Article I, Section 8, and the 10th
Amendment, which reinforces that enumeration, are plainly
"federalism" provisions in the sense that they are intended to
protect a certain allocation of authority between the federal
government and the states. Yet Alfonso Lopez, when he was
convicted under the federal Gun Free School Zones Act, [19] was
of course able to challenge that statute as impermissible under
the Commerce Clause. [20] This does not mean that the Commerce
Clause or the 10th Amendment creates rights that are
"individual" in any sense other than that individuals may rely
on them in legal disputes - it certainly tells us nothing about
the scope of the right available to such individuals.

The position that only states have standing to challenge laws
under the Second Amendment, then, is a pure straw opponent. [21]
Unfortunately, it is precisely this understanding that Kopel
most often attributes to the militia-focused school.

For example, the very first case Kopel discusses is Spencer v.
Kemna, [22] in which Justice Stevens, in dissent, notes that "An
official determination that a person has committed a crime may .
. . result in tangible harms such as imprisonment [or] loss of
the right to vote or to bear arms." [23] (Like most of the cases
Kopel discusses, Spencer v. Kemna has nothing to do with the
Second Amendment or with restrictions on firearms. The case
decides whether a habeas corpus petition is mooted by the
prisoner's release. Moreover, there is no reason to think that
Justice Stevens was referring to the constitutional right to
bear arms; he was probably noting that a criminal conviction may
trigger federal and state statutory prohibitions on owning guns
- that the convict will lose a statutory "right" to own guns.
But no matter - let's assume for the sake of argument that
Stevens is referring to the Second Amendment right.)

Kopel comments on this quotation thus: "A person can only lose a
right upon conviction of a crime if a person had the right
before conviction. Hence, if an individual can lose his right
'to bear arms,' he must possess such a right." [24] Kopel
appears to believe that the excerpt from Spencer v. Kemna is
consistent only with the individual-rights approach and not with
the militia-focused approach. But that is true only if the
militia-focused approach means that only States can insist on
the vindication of Second Amendment rights. The Spencer v. Kemna
excerpt is perfectly consistent with a more sensible version of
the militia-focused approach which focuses on the scope of the
right.

Suppose, for example, a Militia-focused Scholar who believes
that the Second Amendment was intended solely to ensure the
continuation of state militia as the primary locus of military
power in the United States, and who therefore believes that the
Amendment protects only the right of a member of a state militia
to possess a gun required for service in such militia. (Not that
this second claim follows necessarily from the first; those just
happen to be the beliefs of this particular Militia-focused
Scholar.) The Spencer v. Kemna quotation could easily come from
the pen of this Militia-focused Scholar. Even though this
Militia-focused Scholar is concerned only to protect the
vitality of the militia, she of course understands that one fine
way to further this purpose is to empower individuals who are
harmed by some federal law to sue on the ground that the law
violates the Second Amendment. [Page 195]

...
In fact, Spencer and Poe are quite typical of almost all the
cases canvassed by Professor Kopel. Most of these cases mention
the Second Amendment in passing, usually along with other Bill
of Rights provisions. Some refer to the "liberty" protected by
the Amendment, providing an excuse for speculation about what
that liberty must entail. But on close analysis, these cases are
no more enlightening than Spencer or Poe. [Page 197]



>   The Seventh Circuit, above, was simply wrong in it's finding. See
> http://www.gunlaws.com/supreme.htm for the researh.

So you merely opine. YOU are simply stating the blatant
assertion of your unsubstantiated opinion, and it is worthless.

 
> Pat Hines


-- 
Steven Krulick / [EMAIL PROTECTED]
Ellenville NY 12428-130727