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Old 03-09-2007, 01:56 PM   #1
Specop 007
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Default The 2nd Amendment issue is going to come to a head in the next few years

Wow. The stage it really getting set for a very ugly showdown over the 2nd Amendment issue. Whats so interesting about it is the fact that right now we have legislation taking place to go either way. Some bills call for national conceal carry. Others call for rifle bans. The 9th Circuit has already ruled the 2nd is a collective right while now the 5th ruesl its an individual right.

Things are coming to a head I think, that will set the stage for many many years to come. And hopefully, the results will uphold the Constitution without having to fire a shot.


Click

BREAKING NEWS -- Divided three-judge D.C. Circuit panel holds that the District of Columbia's gun control laws violate individuals' Second Amendment rights: You can access today's lengthy D.C. Circuit ruling at this link.
According to the majority opinion, "[T]he phrase 'the right of the people,' when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual." The majority opinion sums up its holding on this point as follows:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.
The majority opinion also rejects the argument that the Second Amendment does not apply to the District of Columbia because it is not a State. And the majority opinion concludes, "Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional."
Senior Circuit Judge Laurence H. Silberman wrote the majority opinion, in which Circuit Judge Thomas B. Griffith joined. Circuit Judge Karen LeCraft Henderson dissented.

Judge Henderson's dissenting opinion makes clear that she would conclude that the Second Amendment does not bestow an individual right based on what she considers to be binding U.S. Supreme Court precedent requiring that result. But her other main point is that the majority's assertion to the contrary constitutes nothing more than dicta because the Second Amendment's protections, whatever they entail, do not extend to the District of Columbia, because it is not a State.

This is a fascinating and groundbreaking ruling that would appear to be a likely candidate for U.S. Supreme Court review if not overturned first by the en banc D.C. Circuit.

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Old 03-09-2007, 01:59 PM   #2
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Default The 2nd Amendment issue is going to come to a head in the next few years

interesting.

BTW, i submitted my paperwork for a CC permit yesterday.
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Old 03-09-2007, 02:01 PM   #3
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Default The 2nd Amendment issue is going to come to a head in the next few years

Quote:
Originally posted by: Specop 007
Wow. The stage it really getting set for a very ugly showdown over the 2nd Amendment issue. Whats so interesting about it is the fact that right now we have legislation taking place to go either way. Some bills call for national conceal carry. Others call for rifle bans. The 9th Circuit has already ruled the 2nd is a collective right while now the 5th ruesl its an individual right.

Things are coming to a head I think, that will set the stage for many many years to come. And hopefully, the results will uphold the Constitution without having to fire a shot.
They will outlaw guns, can't have a citizenry that can rise up against a oppresive overtaxation Government.
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Old 03-09-2007, 02:08 PM   #4
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Default The 2nd Amendment issue is going to come to a head in the next few years

What is interesting about the the dissenters view is if her view was the majorities. She basically tossed out the entire bill of rights for DC because it isnt considered a state.
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Old 03-09-2007, 02:14 PM   #5
Specop 007
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Default The 2nd Amendment issue is going to come to a head in the next few years

Quote:
Originally posted by: Genx87
What is interesting about the the dissenters view is if her view was the majorities. She basically tossed out the entire bill of rights for DC because it isnt considered a state.
Right. And it shows the argument supporting the 2nd was so watertight the ONLY ground to stand on in opposition is that DC isnt a state.

The full document can be read here. While quite long, the ruling was so well laid out it addresses virtually any avenue to overturn it. This is a MAJOR win for our side. Theres still a long ways to go.
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Old 03-09-2007, 02:18 PM   #6
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Default The 2nd Amendment issue is going to come to a head in the next few years

Outstanding decision.

No doubt it will be appealed but certainly a big win for individual rights.
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Old 03-09-2007, 02:25 PM   #7
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Default The 2nd Amendment issue is going to come to a head in the next few years

The Second Amendment reads:
Quote:
A well regulated Militia being necessary to the security of a free State, the Right of the People to keep and bear Arms, shall not be infringed.
One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.
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Old 03-09-2007, 02:33 PM   #8
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Default The 2nd Amendment issue is going to come to a head in the next few years

Quote:
Originally posted by: eilute
The Second Amendment reads:
Quote:
A well regulated Militia being necessary to the security of a free State, the Right of the People to keep and bear Arms, shall not be infringed.
One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.
People only = State?

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Old 03-09-2007, 02:45 PM   #9
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Default The 2nd Amendment issue is going to come to a head in the next few years

Quote:
Originally posted by: eilute
The Second Amendment reads:
Quote:
A well regulated Militia being necessary to the security of a free State, the Right of the People to keep and bear Arms, shall not be infringed.
One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.
To me at least, the militia is defined here as the primary reason for the right, whereas the rest of the sentance places no restrictions on that right nor does it define only a narrow group of the people as those who possess this right. It does not say "the right of the People's militia" it just says the people. It it simply states, "shall not be infringed" with no exceptions given.
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Old 03-09-2007, 02:45 PM   #10
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Default The 2nd Amendment issue is going to come to a head in the next few years

Quote:
Originally posted by: eilute
The Second Amendment reads:
Quote:
A well regulated Militia being necessary to the security of a free State, the Right of the People to keep and bear Arms, shall not be infringed.
One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.
If you read the Federalist papers, you will see the discussion focused on the individual, not hte state as the Court wrote in its opinion. Reading that line in the Constitution does not give the State rights, it guarantees teh People's rights - that is the individuals.
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Old 03-09-2007, 02:46 PM   #11
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Default The 2nd Amendment issue is going to come to a head in the next few years

I think the courts have consistantly ruled that the 2nd amendment is a collective right and not an indiviual one; atleast until now. I am pretty sure that US vs. Miller was the big deciding case on this issuse.
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Old 03-09-2007, 02:48 PM   #12
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Default The 2nd Amendment issue is going to come to a head in the next few years

Quote:
Originally posted by: dmcowen674
Quote:
Originally posted by: eilute
The Second Amendment reads:
Quote:
A well regulated Militia being necessary to the security of a free State, the Right of the People to keep and bear Arms, shall not be infringed.
One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.
People only = State?

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Old 03-09-2007, 02:56 PM   #13
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Default The 2nd Amendment issue is going to come to a head in the next few years

if one were to apply the historical context of the Constitution you would determine that militias were not comprised of professional soldiery, nor did they have state issued arms. the national guard would be analgous, at least it would have been before they were trated as nothing more than regulars.

I am of the opinion that the fundamental right was inserted to protect the citizens not only from external threats but also internal, especially the government. if the citizenry were deviod of arms they would have no recourse against a despotic government. the very founding of this country was based on the premise of defening ones own rights from a despot, through arms.

to define the second as anything but the above is to completely ignore not only this countrys history, but also historical events that have shown that a disarmed and thus non-threatening popation is easily ruled.

Quote:
Originally posted by: eilute
The Second Amendment reads:
Quote:
A well regulated Militia being necessary to the security of a free State, the Right of the People to keep and bear Arms, shall not be infringed.
One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.
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Old 03-09-2007, 03:01 PM   #14
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Default The 2nd Amendment issue is going to come to a head in the next few years

Quote:
Originally posted by: eilute
The Second Amendment reads:
Quote:
A well regulated Militia being necessary to the security of a free State, the Right of the People to keep and bear Arms, shall not be infringed.
One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.
The first part is their reasoning for the second. And the second part of that sentence is very clear.

"the Right of the People to keep and bear Arms, shall not be infringed."

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Old 03-09-2007, 03:03 PM   #15
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Default The 2nd Amendment issue is going to come to a head in the next few years

Quote:
Originally posted by: Genx87
What is interesting about the the dissenters view is if her view was the majorities. She basically tossed out the entire bill of rights for DC because it isnt considered a state.
As opposed to Congress' selective throwing out of rights b/c it isn't considered a state?
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Old 03-09-2007, 03:26 PM   #16
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Default The 2nd Amendment issue is going to come to a head in the next few years

Gun rights... the only right a man needs to have.
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Old 03-09-2007, 03:28 PM   #17
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Default The 2nd Amendment issue is going to come to a head in the next few years

Quote:
Originally posted by: 2Xtreme21
Gun rights... the only right a man needs to have.
With it we can ensure all other rights.

Of course, for any criminal the baning of a gun means nothing. We already have military style shipments traveling across our border for the gangs.
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Old 03-09-2007, 03:40 PM   #18
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Default The 2nd Amendment issue is going to come to a head in the next few years

Quote:
Originally posted by: Jaskalas
Quote:
Originally posted by: 2Xtreme21
Gun rights... the only right a man needs to have.
With it we can ensure all other rights.
Sorry you need to put that much faith in a device used to kill another person.

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Old 03-09-2007, 03:41 PM   #19
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Default The 2nd Amendment issue is going to come to a head in the next few years

Quote:
Originally posted by: Jaskalas
Quote:
Originally posted by: 2Xtreme21
Gun rights... the only right a man needs to have.
With it we can ensure all other rights.

Of course, for any criminal the baning of a gun means nothing. We already have military style shipments traveling across our border for the gangs.
Shame our militias are in Iraq and Afghanistan instead of protecting our borders.
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Old 03-09-2007, 03:46 PM   #20
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Default The 2nd Amendment issue is going to come to a head in the next few years

Quote:
Originally posted by: Genx87
What is interesting about the the dissenters view is if her view was the majorities. She basically tossed out the entire bill of rights for DC because it isnt considered a state.
Yeah, WTH is she talking about?

BTW: The 9th curcuit is loony. IIRC the SCOTUS overturns more of their stuff than any other (maybe all others combined).

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Old 03-09-2007, 04:10 PM   #21
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Default The 2nd Amendment issue is going to come to a head in the next few years

Quote:
Originally posted by: dmcowen674
Quote:
Originally posted by: Specop 007
Wow. The stage it really getting set for a very ugly showdown over the 2nd Amendment issue. Whats so interesting about it is the fact that right now we have legislation taking place to go either way. Some bills call for national conceal carry. Others call for rifle bans. The 9th Circuit has already ruled the 2nd is a collective right while now the 5th ruesl its an individual right.

Things are coming to a head I think, that will set the stage for many many years to come. And hopefully, the results will uphold the Constitution without having to fire a shot.
They will outlaw guns, can't have a citizenry that can rise up against a oppresive overtaxation Government.


stop that!

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Old 03-09-2007, 04:12 PM   #22
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Default The 2nd Amendment issue is going to come to a head in the next few years

Quote:
Originally posted by: BaliBabyDoc
As opposed to Congress' selective throwing out of rights b/c it isn't considered a state?
Or the Supreme Court and constitution itself? D.C. has been treated differently from states in several respects since it became the federal seat (maybe longer). This is why DC has its own federal court (can't remember if its a district, circuit, or appeals court).
Quote:
One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.
Probably because every pre-eminent constitutional scholar, commentator, and court before the 20th century rejected the 'states and their militias' reading, and even then did it not gain acceptance until 20th century efforts to expand regulations or ordinances previously aimed at disarming blacks, indians, and other minorities (because, you know, those who wouldn't be born for at least 150 years after the constitution was ratified surely knew more about the intent of the framers than those who lived at the same time as the framers and actually knew some of them professionally or personally):

From General Principles of Constitutional Law (1880), Justice Thomas Cooley, Section IV. -- The Right to Keep and Bear Arms.

The Constitution. -- By the Second Amendment to the Constitution it is declared that, "a well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed."

It may be supposed from the phraseology of [the Second Amendment] that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrollment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check.

The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.
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Old 03-09-2007, 04:27 PM   #23
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Default The 2nd Amendment issue is going to come to a head in the next few years

Quote:
Originally posted by: eilute
The Second Amendment reads:
Quote:
A well regulated Militia being necessary to the security of a free State, the Right of the People to keep and bear Arms, shall not be infringed.
One can make the argument that the right only applies to states and their militias. That is the way it reads to me. I don't understand why the court thought otherwise.
So in your opinion it was necessary to add into the Constitution that militia/soldiers had a right to bear arms while in service. That being necessary because in the absence of the 2nd amendment our armies/militia would be composed of unarmed men?

Huh?

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Old 03-09-2007, 04:47 PM   #24
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Default The 2nd Amendment issue is going to come to a head in the next few years

Outstanding news.
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Old 03-09-2007, 05:32 PM   #25
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Default The 2nd Amendment issue is going to come to a head in the next few years

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Originally posted by: adairusmc
Outstanding news.
And if you think that's something, check out U.S. v. ROCK ISLAND ARMORY, INC. (1991), where the US District Court for Central Illinois dismissed indictments against defendants for violating statutes prohibiting the possession of unregistered machine guns manufactured after the sunset date of May 19, 1986, on the basis that the federal government had no authority to ban the possession of machine guns, and rendered the NFA as modified by contemporary statute unconstitutional.

This ruling still stands as prevailing law in that district (forty-six Illinois counties) because the government chose not to appeal the decision (knowing it would lose):
Quote:
As applied to machineguns alleged to be possessed after May 19, 1986, prosecutions may no longer proceed under 26 U.S.C. § 5861. This is because the National Firearms Act is part of the Internal Revenue Code, and its provisions ? including registration of machineguns possessed after May 19, 1986 ? are valid only to the extent they aid in the collection of tax revenue.

Since BATF would not register and accept tax payments for any machinegun after May 19, 1986, registration of machineguns made and possessed after that date no longer serves any revenue purpose, and such registration requirements are invalid. Since 18 U.S.C. § 922(o) is interpreted to ban registration and taxation of machineguns under the National Firearms Act, § 922(o) effectively repeals such registration and taxation provisions. Congress has no enumerated power to require registration of firearms. However, since registration of firearms may assist in the collection of revenue, Congress passed the National Firearms Act in 1934 pursuant to its power to tax. Section 922(o) destroys the constitutional basis of registration.

Finally, the prosecution quotes an enactment passed in 1968 that the provisions of Title I of the Gun Control Act shall not modify or affect the National Firearms Act.[15] However, the 1968 Congress cannot bind the Congress of 1986, which decided to ban transfer and possession of machineguns. P.L. 99-308, 100 Stat. 453 (May 19, 1986).[16] Further, a Congressional declaration in 1968 does not solve a constitutional problem which arose in 1986. The ban enacted in 1986, and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis. It is the duty of the judiciary to declare such laws unconstitutional. Marbury v. Madison, 1 Cranch. 137, 176-77, 2 L.Ed. 60 (1803).

In sum, since enactment of 18 U.S.C. § 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional. Accordingly, Counts 1(a) and (b), 2, and 3 of the superseding indictment are DISMISSED.

-- United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D. Ill. 1991)
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