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Another Post-Heller Second Amendment Decision:

U.S. v. Robinson (E.D. Wis. July 23) (Adelman, J.):

[D]efendant fails to show that Heller renders his prosecution [for being a felon in possession of a firearm] constitutionally infirm....

First, defendant fails to demonstrate that Heller applies to felons. The Court specifically stated in that case:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose....

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Defendant claims that this is dicta, but I cannot so quickly dismiss this explicit limitation on the Court’s holding. Further, defendant cites no authority in support of his claim that the Second Amendment right extends to felons. To my knowledge, no court has, even under an individual rights interpretation of the Second Amendment, found 18 U.S.C. § 922(g) constitutionally suspect. E.g., United States v. Emerson, 270 F.3d 203, 262-63 (5th Cir. 2001) (finding that the Second Amendment protects individual rights, but nevertheless upholding § 922(g)(8)); [also citing some post-Heller district court and unpublished circuit court cases]. Finally, the Seventh Circuit regularly rejected such challenges pre-Heller, see, e.g., United States v. Price, 328 F.3d 958, 961 (7th Cir. 2003) (noting that even advocates of an individual rights interpretation of the Second Amendment excluded felons), and nothing in Heller persuades me that the court of appeals is likely to change course now.

Second, defendant can find little support in Heller given the circumstances of his case. Heller’s actual holding is:

that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

Defendant contends that he was accosted by police on the porch of his home and found to be in possession of a firearm, which he claims he possessed to protect himself and his family in the high crime area in which they lived. However, he glosses over the circumstances of his encounter with the police. [Details omitted. -EV] Even under its broadest possible reading, Heller does not sanction a felon carrying a gun in his pocket in public, then pulling that gun on a police officer [which is what the court concludes happened here -EV]. The Second Amendment interests in self-defense and protection of the home discussed in Heller cannot reasonably be extended to cover defendant’s conduct here.

Brooks Lyman (mail):
While I suppose that it has the advantage of eventually clearing out the undergrowth of things that the Second Amendment and Heller do not say, it's a shame that all these bad (or read: desperate attempts by defense lawyers to get their clients off of ironclad charges) cases are distracting the attention of the courts from more important issues, like Mr. Heller's continuing problems with DC (the DC government is a reality-challenged group if there ever was one) or getting the Second Amendment incorporated.
8.5.2008 12:22pm
J. Aldridge:
Why can't Heller sanction felon's from having guns? The Prefactory Clause was discarded and the operative clause says nothing about wiggle room for exceptions. Maybe this is why the government and most courts always insisted the arms under the 2A are arms of the militia?

Judge Advocate General of the Army (C. 1169, May 27, 1910) held the word “arms” under the Second Amendment “refers to the arms of the militia or soldier and does not authorize the carrying of weapons not adapted to use for military purposes.”
8.5.2008 1:17pm
Jim at FSU (mail):
I think that prohibited person law will eventually get some post-Heller action, but it will probably be along the lines of challenging either:
a) non-violent felon in possession. If someone committed a crime (like check forging) that is a felony but not one that implies an elevated risk of gun misuse, maybe they would have a case for claiming it isn't a justified restriction. The compelling government interest of restricting felon possession of firearms is to reduce criminal misuse of firearms. If someone's record teaches away from this tendency, how can such a restriction be applied to them?
b) rehabilitated federal felon in possession. If someone committed a crime a long time ago and long since repaid their debt to society, they could at least make an argument that there should be a funded mechanism to restore rights.
c) domestic violence misdemeanant in possession. I personally think the Lautenberg amendment is stupid, but I also think it could provide grounds for 2nd amendment challenge. I think you could claim that many domestic violence misdemeanor convictions were based on the understanding that it was essentially a charge with little in the way of negative repercussions and thus not worth fighting. Many people plead to domestic violence even when there was no violence involved or it was a very weak case because the cost of fighting it couldn't be justified until Lautenberg added a lifetime firearms restriction. I think there are all sorts of lack of notice and ex post facto claims in here, some of which are unfortunately precluded by our current case law. In any case there should be a means or restoring rights for these people.
8.5.2008 1:20pm
Tony Tutins (mail):
In 1996, Judge Kozinski put a prescient footnote in his opinion in the felon-in-possession case of USA v. Gomez, 81 F.3d 846. (Felon informant charged with possessing firearm entitled to present justification defense after government failed to protect him from murderous thug he informed on).

[ Footnote 7 ] Indeed, 18 U.S.C. S 922(g)(1) might not pass constitutional muster were it not subject to a justification defense. The Second Amendment embodies the right to defend oneself and one's home against physical attack. Nelson Lund, The Second Amendment, Political Liberty, and the Right to Self-Preservation, 39 Ala. L. Rev. 103, 117-120, 130 (1987) (Second Amendment guarantees right to means of self-defense); see Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 64546 (1989) ("[I]t seems tendentious to reject out of hand the argument that one purpose of the [Second] Amendment was to recognize an individual's right to engage in armed self-defense against criminal conduct."). In modern society, the right to armed self-defense has become attenuated as we rely almost exclusively on organized societal responses, such as the police, to protect us from harm. See Levinson, 99 Yale L.J. at 656 ("[O]ne can argue that the rise of a professional police force to enforce the law has made irrelevant, and perhaps even counterproductive, the continuation of a strong notion of self-help as the remedy for crime."). The possession of firearms may therefore be regulated, even prohibited, because we are "compensated" for the loss of that right by the availability of organized societal protection. The tradeoff becomes more dubious, however, when a citizen makes a particularized showing that the organs of government charged with providing that protection are unwilling or unable to do so. See Lund, 39 Ala. L. Rev. at 123 ("The fundamental right to selfpreservation, together with the basic postulate of liberal theory that citizens only surrender their natural rights to the extent that they are recompensed with more effective political rights, requires that every gun control law be justified in terms of the law's contribution to the personal security of the entire citizenry."). At that point, the Second Amendment might trump a statute prohibiting the ownership and possession of weapons that would be perfectly constitutional under ordinary circumstances. Allowing for a meaningful justification defense ensures that 18 U.S.C. S 922(g)(1) does not collide with the Second Amendment.

For interest, here are the elements a defendant must establish in order to make out a justification defense:

(1) he was under unlawful and present threat of death or serious bodily injury; (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) he had no reasonable legal alternative; and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.
8.5.2008 1:38pm
GunShowOnTheNet (mail) (www):
The REAL ORIGINAL INTENT behind the Second Amendment:

The Shay's Insurrection, "These the Legislature could not infringe, without bringing upon themselves the detestation of mankind, and the frowns of Heaven", Jan. 12, 1787

Commonwealth of Massachusetts, "and shall obtain an order for the re-delivery of such arms", Feb. 16, 1787

Journals of the Continental Congress, "...impolitic and not to be reconciled with the genius of free Govts...", Feb. 19. 1787

Letters of Delegates to Congress, "...An Act to disarm and Disfranchise for three years...", Feb. 27th, 1787

Letters of Delegates to Congress, "...this act has created more universal disgust than any other of Government...", March 6, 1787

Journals of the Continental Congress, "That a large body of armed insurgents, did make their appearance...", March 13, 1787

James Madison to Thomas Jefferson, "a great proportion of the offenders chuse rather to risk the consequences of their treason, than submit to the conditions annexed to the amnesty", March 19, 1787

A Proclamation, "and of being again renewed to the arms of their country, and once more enjoying the rights of free citizens of the Commonwealth", June 15, 1787

The Debates in the Federal Convention, "...let the citizens of Massachusetts be disarmed. . . . It would be regarded as a system of despotism.", Aug. 23, 1787

James Madison to Thomas Jefferson, "A constitutional negative on the laws of the States seems equally necessary to secure individuals agst. encroachments on their rights", Oct. 24, 1787

"The people cannot be all, &always, well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty. We have had 13. states independent 11. years. There has been one rebellion. That comes to one rebellion in a century &a half for each state. What country before ever existed a century &half without a rebellion? &what country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon &pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots &tyrants. It is it's natural manure. Our Convention has been too much impressed by the insurrection of Massachusetts: and in the spur of the moment they are setting up a kite to keep the hen-yard in order. I hope in God this article will be rectified before the new constitution is accepted."

- Thomas Jefferson, Nov. 13, 1787 letter to William S. Smith.

That's RIGHT people, it was intended to SECURE the God-given, Natural, Inherent and Inalienable Right of those that HAD transgressed the law. ALL 'gun control laws' are REPUGNANT to the U.S. Constitution.
8.5.2008 2:09pm
Bruce Hayden (mail) (www):
I don't see much traction here, until at least felons don't also lose their right to vote. Both are fundamental rights that we have seen fit to strip from felons as a penalty for being so convicted.

But the dynamic may be changing here. Many Democrats are actively pushing to restore the right to vote to felons, presumably under the theory that they are more likely to vote for Democrats than Republicans. I would suggest that if this becomes wide spread, it will ultimately weaken the argument that the 2nd Amdt. doesn't apply to felons in the same way that it does non-felons - esp. non-violent felons.
8.5.2008 2:22pm
GunShowOnTheNet (mail) (www):
In addition we have the following quotations from Constitutional authorities that were referenced to D.C. v. Heller:

This is the PRE-EXISTENT NATURAL RIGHT of the British-American 'subject' BEFORE the Constitution. As it was explained by a very knowledgeable and well known authority;

"The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. &M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."

- William Blackstone, 1 Commentaries on the Laws of England 136, 1765–1769.

Let us give our attention to how the new American Citizen's Right was dramatically improved AFTER the Constitution;

"The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government...."

"....This may be considered as the true palladium of liberty....The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."

"...In America we may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty..."

- St. George Tucker, Blackstone's Commentaries, (1803).

The quotations above provide further proof that:

1). Our governments, (especially the fed.), were EXPRESSLY forbidden from enacting ANY law which contravenes that natural right of the People.

2). The courts are still applying English precedent rather than the fundamental Constitutional law.
8.5.2008 2:24pm
GV:
Brooks Lyman, care to further explain how "defense lawyers" are distracting courts (especially this one in Wisconsin) from dealing with what you view as more important issues that are taking place in D.C.? Courts are not children. They do not get distracted by shiny objects, leaving them incapable of doing anything else. They are, in fact, capable of dealing with multiple cases at the same time. There is obvious tension between declaring the right to bear arms an individual right while at the same time saying the government may ban anyone who commits a felony, no matter how trivial, from exercising the right to bear arms and protect themselves and their families. Defense lawyers would be derelict in their duty if they did not push courts to further articulate when and why the government may entirely prohibit someone from exercising their rights.
8.5.2008 2:25pm
GunShowOnTheNet (mail) (www):
Bruce Hayden:

"I don't see much traction here, until at least felons don't also lose their right to vote. Both are fundamental rights that we have seen fit to strip from felons as a penalty for being so convicted."

Negative, to Wit:

"There is no such thing as a natural right to vote. There are three classes of rights: natural, such as those recognized in the Declaration of Independence; civil, such as the rights of property; and political rights. Society has nothing to do with natural rights except to protect them. Civil rights belong equally to all. Every one has the right to acquire property, and even in infants the laws of all governments preserve this. But political rights are matters of practical utility. A right to vote comes under this class. If it was a natural right, it would appertain to every human being, females and minors. Even the Dorr men excluded all under twenty-one, and those who [Page 48 U.S. 1, 29] had not resided within the State during a year. But if the State has the power to affix any limit at all to the enjoyment of this right, then the State must be the sole judge of the extent of such restriction. It can confine the right of voting to freeholders, as well as adults or residents for a year. The boasted power of majorities can only show itself under the law, and not against the law, in any government of laws. It can only act upon days and in places appointed by law."

- Luther v. Borden, U.S. Supreme Court, Jan. Term, 1849.

This point is further amplified here:

"The defence of one’s self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law. This principle of defence is not confined merely to the person; it extends to the liberty and the property of a man: it is not confined merely to his own person; it extends to the persons of all those, to whom he bears a peculiar relation -- of his wife, of his parent, of his child, of his master, of his servant: nay, it extends to the person of every one, who is in danger; perhaps, to the liberty of every one, whose liberty is unjustly and forcibly attacked. It becomes humanity as well as justice."

- James Wilson, 'Of the Natural Rights of Individuals', 1790-1792 (Signed the Declaration of Independence and U.S. Constitution, Congressman, Delegate to the Constitutional Convention and U.S. Supreme Court Justice).

And here:

"The right of self-defense in these cases is founded in the law of nature, and is not, and cannot be superceded by the law of society. In those instances, says Sir Michael Foster, the law, with great propriety, and in strict justice, considers the individual to be under the protection of the law of nature."

- James Kent, 1763–1847, [Commentaries on American Law - Vol. II, Lect. XXIV, Of the Absolute Rights of Persons, (1826-30)]. Chief Judge N.Y. Supreme Court, First Professor of Law at Columbia College.
8.5.2008 2:32pm
J. Aldridge:
GunShowOnTheNet: Civil rights are natural rights restrained by law. People are restrained by law over how and when they may defend themselves.
8.5.2008 2:42pm
GunShowOnTheNet (mail) (www):
J. Aldridge:

"The obligations of the law of nature cease not in society, but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to inforce their observation. Thus the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men's actions, must, as well as their own and other men's actions, be conformable to the law of nature, i.e. to the will of God, of which that is a declaration, and the fundamental law of nature being the preservation of mankind, no human sanction can be good, or valid against it."

- John Locke, "The Second Treatise of Government" - Chapter 11 - Of the Extent of the Legislative Power. (1690).

"Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature...."

"...When men enter into society, it is by voluntary consent; and they have a right to demand and insist upon the performance of such conditions and previous limitations as form an equitable original compact.

"Every natural right not expressly given up, or, from the nature of a social compact, necessarily ceded, remains...."

"...The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but only to have the law of nature for his rule...."

"...In short, it is the greatest absurdity to suppose it in the power of one, or any number of men, at the entering into society, to renounce their essential natural rights, or the means of preserving those rights; when the grand end of civil government, from the very nature of its institution, is for the support, protection, and defence of those very rights; the principal of which, as is before observed, are Life, Liberty, and Property. If men, through fear, fraud, or mistake, should in terms renounce or give up any essential natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being the gift of God Almighty, it is not in the power of man to alienate this gift and voluntarily become a slave..."

- Samuel Adams, in a collaborative work with Benjamin Franklin, titled 'The Rights of the Colonists', (actual title; 'The Report of the Committee of Correspondence to the Boston Town Meeting'), dated Nov. 20, 1772.

"Resistance to sudden violence, for the preservation not only of my person, my limbs, and life, but of my property, is an indisputable right of nature which I have never surrendered to the public by the compact of society, and which perhaps, I could not surrender if I would."

- John Adams, Boston Gazette, Sept. 5, 1763.
8.5.2008 2:54pm
John (mail):
I worry that the Heller emphasis on self defense will be interpreted as expressing the entire basis of a Second Amendment right, and that other bases (e.g., hunting, rising up against the government) will be disregarded.
8.5.2008 2:59pm
Steve:
Nothing persuades quite like spam.
8.5.2008 2:59pm
GunShowOnTheNet (mail) (www):
J. Aldridge:

"From among the rights retained by our policy, we have selected those of self defence or bearing arms, of conscience, and of free inquiry, for two purposes; one, to shew the vast superiority of our policy, in being able to keep natural rights necessary for liberty and happiness, out of the hands of governments; the other, to shew that this ability is the effect of its principles, and beyond the reach of Mr. Adams’s system, or of any other, unable to reserve to the people, and to withhold from governments, a variety of rights."

- John Taylor, Revolutionary Soldier and U.S. Senator, (1792 – 94, 1803, 1822 – 24). [An Inquiry into the Principles and Policy of the Government of the United States: Section the Sixth; THE GOOD MORAL PRINCIPLES OF THE GOVERNMENT OF THE UNITED STATES, (1814).]

"We appealed to those of nature, and found them engraved on our hearts. . . . We established however some, although not all its important principles. The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent . . . . that it is THEIR RIGHT and DUTY to be AT ALL TIMES ARMED; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press."

- Thomas Jefferson, June 5, 1824 letter to Major John Cartwright. [The Writings of Thomas Jefferson,(Memorial Edition) Lipscomb and Bergh, editors.]

"It was demanded by a great and overruling necessity...... This great law of necessity-of defence of self, of home, and of country-never was designed to be abrogated by any statute, or by any constitution."

- Mr.[(Formerly Major-General), Benjamin Franklin] Butler, ON THE SIDE OF THE UNITED STATES, EX PARTE MILLIGAN, U.S. Supreme Court, Dec. Term, 1866.
8.5.2008 3:06pm
GunShowOnTheNet (mail) (www):
Steve:

Interesting how that you would call HISTORICAL FACTS "spam"....
8.5.2008 3:07pm
J. Aldridge:
GunShowOnTheNet: Yes, yes, I'm sure Adams said all of what you pasted. Since you love pasting quotes, here is one you missed from rights of the Colonists: "The natural liberty of man, by entering into society, is abridged or restrained, so far only as is necessary for the great end of society, the best good of the whole."
8.5.2008 3:10pm
krs:
GV, you may recall that the people who put the Heller lawsuit together were very careful to choose their plaintiff, their jurisdiction, and the nature of their challenge. This was not just so that the case would ultimately reach the Supreme Court, but so that certain policy considerations wouldn't influence the court's decision. Judges are not children, but they are human.

In Heller, the Supreme Court had a clean fact pattern and solid briefing on both sides of the issue and was thus better able to produced well-written opinions on both sides.

Heller left a lot of questions open, however. When lower courts are asked to fill the gap by unsympathetic defendants who don't brief the issue well and throw the Heller argument on top of a pile of other meritless arguments, the judges will be (1) tempted to rule against the defendant and (2) more likely to make broad, imprecise statements about the limits of Heller.

Judges aren't children, but they do have sympathies and instincts, and they do have limited amounts of time to get their work done.
8.5.2008 3:18pm
Paul Milligan (mail):
What I like about the decision is, it does not question Incorporation of Heller. It assumes Heller to be incorporated ( although not a support to the complaint in this case ).
8.5.2008 3:19pm
krs:
GunShow, if you cut and paste a chapter of a history book or a well-done wikipedia entry into the comments, it's still spam, regardless of its historical accuracy.
8.5.2008 3:19pm
GunShowOnTheNet (mail) (www):
krs:

No, if it was IRRELEVANT to the topic at hand then it would be considered "spam". EVERY single quotation, (you know, like the ones they use in COURTS OF LAW), has direct bearing on the subject. Links are posted merely for authentication/verification purposes.
8.5.2008 3:27pm
Tony Tutins (mail):

other bases [of the Second Amendment right] (e.g., hunting, rising up against the government) will be disregarded.


These are both very slender reeds to lean on.

First, hunting is not a right, but a privilege: In England, game belonged to the king or to nobility, in the US game belongs to the state. Any Brit who claimed a right to hunt would be considered a poacher. Here, states uniformly require that one must be licensed before one can take the state's game. Moreover, the means of take can be restricted to non-firearms means, such as archery or falconry. Hunting is so far from a fundamental right that out-of-staters can be charged much higher fees for hunting licenses, which would not be allowed for a more fundamental right such as the right to earn a living.

Second, the Constitution was created, partly, in response to Shays' Rebellion, indicating that the framers, by and large, did not believe that there was a fundamental human right to rise up against the government. Post-Constitution rebellions were swiftly put down, and not even the withdrawal of certain states from the Union was allowed to happen. There may be such a right to rise up against tyranny, but there are plenty of other checks and balances to prevent the government from becoming tyrannous.
8.5.2008 3:30pm
GunShowOnTheNet (mail) (www):
J. Aldridge: "The natural liberty of man, by entering into society, is abridged or restrained, so far only as is necessary for the great end of society, the best good of the whole."

How very astute of you. Now, just try to reconcile that with; "The Right of the People to Keep and Bear Arms shall NOT be infringed". You do know what the word "infringed" means, right?
8.5.2008 3:31pm
Crunchy Frog:
Oooh, capital letters!

They're persuasive too.
8.5.2008 3:35pm
GunShowOnTheNet (mail) (www):
Tony Tutins:

"If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government . . . The citizens must rush tumultuously to arms..."

- Alexander Hamilton, Federalist #28, Dec. 26, 1787.

"Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action."

- George Washington, in a speech of Jan. 7, 1790, in the Boston Independent Chronicle, Jan. 14, 1790.

“[Tyranny cannot be safe] without a standing army, an enslaved press, and a disarmed populace.”

- James Madison, autobiography

"...Self defence is a primary law of nature, which no subsequent law of society can abolish; this primæval principle, the immediate gift of the Creator, obliges every one to remonstrate against the strides of ambition, and a wanton lust of domination, and to resist the first approaches of tyranny, which at this day threaten to sweep away the rights for which the brave sons of America have fought with an heroism scarcely paralleled even in ancient republicks...."

- Elbridge Gerry, Observations On the new Constitution, and on the Federal and State Conventions. By a Columbian Patriot. Sic transit gloria Americana. [Boston: 1788.]

"...If their ideas should succeed, a principle of mortality will be infused into a government which the lovers of mankind have wished might last to the end of the world. With a mixture of the executive and legislative powers in one body, no government can long remain uncorrupt. With a corrupt executive, liberty may long retain a trembling existence. With a corrupt legislature, it is impossible: the vitals of the Constitution would be mortified, and death must follow in every step. A government thus formed would be the most formidable curse that could befall this country. Perhaps an enlightened people might timely foresee and correct the error; but if a season was allowed for such a compound to grow and produce its natural fruit, it would either banish liberty, or the people would he driven to exercise their unalienable right, the right of uncivilized nature, and destroy a monster whose voracious and capacious jaws could crush and swallow up themselves and their posterity.

- Fisher Ames, House of Representatives, June 16, 1789.The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Elliot's Debates, Volume 4]

The American Principle of Revolution, By [Congressman and U.S. Supreme Court Justice] James Wilson

"If, by the mere force of numbers, a majority should deprive a minority of any clearly written constitutional right, it might, in a moral point of view, justify revolution--certainly would, if such right were a vital one."

- Abraham Lincoln, First Inaugural Address, 4 March 1861. [Journal of the Senate of the United States of America]

There is substantially more evidence if needed....
8.5.2008 3:39pm
loki13 (mail):
GunShowOnTheNet-

"He who trains his tongue to quote the learned sages, will be known far and wide as a smart ass."
-- Howard Kandel
8.5.2008 3:48pm
Happyshooter:
“refers to the arms of the militia or soldier and does not authorize the carrying of weapons not adapted to use for military purposes.”

I didn't find this quote. Where is it from?
8.5.2008 3:49pm
GV:
krs, that's likely all true, but not at all the point I was responding to -- the point I was responding to being that making meritless arguments "distracts" courts from addressing arguments with merit in other cases.
8.5.2008 3:50pm
loki13 (mail):
"Quoting: the act of repeating erroneously the words of another."
-- Ambrose Bierce

pls- some substance. Long lists of quotes prove nothing, and make you look like an idea-less boor.
8.5.2008 3:51pm
Steve:
What's ironic is that I'm quite sympathetic to the argument that self-defense is a human right, and as such, even felons can make a good case that they shouldn't be deprived of it. But I just don't see how long strings of quotes that have surely been recycled in one gun argument after another help the cause.

Maybe my next brief should be one long string cite. "What's the problem, Your Honor, do you not want me to cite historical facts?"
8.5.2008 4:14pm
GunShowOnTheNet (mail) (www):
"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

"The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors performed in framing the constitution, put it very much in their power to explain the views with which it was framed..."

- Chief Justice John Marshall, U.S. Supreme Court, Cohens v. Virginia (1821).
8.5.2008 4:33pm
GunShowOnTheNet (mail) (www):
"Undoubtedly what went before the adoption of the Constitution may be resorted to for the purpose of throwing light on its provisions."

- Mr. Chief Justice [Edward Douglass] White, deliver[ing] the opinion of the court, U.S. Supreme Court, MARSHALL v. GORDON , 243 U.S. 521 (1917).

"It is a rule of law that, in order to ascertain the import of a contract, the evident intention of the parties, at the time of forming it, is principally to be regarded. Previous to the formation of this Constitution, there existed certain principles of the law of nature and nations, consecrated by time and experience, in conformity to which the Constitution was formed."

- Mr. Elliot, Debate in U.S. House of Representatives, Oct. 25, 1803. (The Debates in the Several State Conventions on the Adoption of the Federal Constitution), [Elliot's Debates, Volume 4]
8.5.2008 4:35pm
GunShowOnTheNet (mail) (www):
"Two propositions in our constitutional jurisprudence are no longer debatable. One is that the national government is one of enumerated powers; and the other, that a power enumerated and delegated by the Constitution to Congress is comprehensive and complete, without other limitations than those found in the Constitution itself.

"The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now. Being a grant of powers to a government, its language is general; and, as changes come in social and political life, it embraces in its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, [Page 199 U.S. 437, 449] while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This in no manner abridges the fact of its changeless nature and meaning. Those things which are within its grants of power, as those grants were understood when made, are still within them; and those things not within them remain still excluded. As said by Mr. Chief Justice Taney in Scott v. Sandford, 19 How. 393, 426, 15 L. ed. 691, 709:

"'It is not only the same in words, but the same in meaning, and delegates the same powers to the government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.'

"It must also be remembered that the framers of the Constitution were not mere visionaries, toying with speculations or theories, but practical men, dealing with the facts of political life as they understood them; putting into form the government they were creating, and prescribing, in language clear and intelligible, the powers that government was to take. Mr. Chief Justice Marshall, in Gobbons v. Ogden, 9 Wheat. 1, 188, 6 L. ed. 23, 68, well declared:

"'As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.'"

- Mr. Justice Brewer deliver[ing] the opinion of the court, U.S. Supreme Court, [South Carolina v. US, 199 U.S. 437 (1905)]
8.5.2008 4:39pm
GunShowOnTheNet (mail) (www):
"Those who do not study history are doomed to repeat it."

- George Santayana
8.5.2008 4:45pm
J. Aldridge:
Happyshooter states: "I didn't find this quote. Where is it from?"

It is cited as (Judge Advocate General of the Army (C. 1169, May 27, 1910)) in Madison's D.C. v. Heller: Was Scalia Honest with the Facts?
8.5.2008 4:46pm
GunShowOnTheNet (mail) (www):
loki13:

"pls- some substance. Long lists of quotes prove nothing, and make you look like an idea-less boor."

Do you even have the slightest idea of the whole purpose of a written Constitution?
8.5.2008 4:47pm
J. Aldridge:
GunShowOnTheNet said to loki13: "Do you even have the slightest idea of the whole purpose of a written Constitution?"

Lemme guess you do and it has nothing to do with a political compact, right?
8.5.2008 4:57pm
zippypinhead:
Challenges to §922(g) and equivalent state prohibitions (post-incorporation) are going to be very difficult to sustain in light of the language in Heller, as the District Court here recognized. The Lautenberg Amendment may be one exception, as others have noted. Of course the Supreme Court already granted cert. on a §922(g)(9) case, but not on the ultimate question here - although depending who writes the majority opinion there may be some illuminating dicta.

Outside the misdemeanor domestic violence area, I suspect the only defendants likely to get a sympathetic hearing on §922(g) challenges are either:

(a) someone with a totally clean record except for a very old non-violent conviction or disability, especially one that today wouldn't generally be viewed the same way, such as a 40-year old marijuana possession conviction or a dishonorable discharge stemming from refusal to deploy to Vietnam, or

(b) someone who attempts to petition BATF for rights restoration and facially complies with §925(c), but is bounced because Congress explicitly prohibited the expenditure of appropriated funds to process relief from disability petitions. The statute permits court appeal of a relief from disabilities "denial," so it may not be a terrible stretch to argue that a refusal to accept the application at all also raises a justiciable civil cause of action - one can argue this is directly analogous to what happened to Dick Heller when he tried to register his handgun in D.C. The justification for ruling for the plaintiff in such a suit is probably a bit complex, but a hook here may be that a procedure for rights restoration exists, and Congress cannot arbitrarily use its appropriations power to violate the peoples' Constitutional rights?

Just a non-cut-and-paste thought or two from this pinhead.
8.5.2008 5:13pm
PatHMV (mail) (www):
We deprive felons of all sorts of freedoms... voting, speech, personal liberty itself. I have a "natural right" to personal freedom to walk around as I please, as well, but that's taken away from me when I'm convicted of a crime. From the perspective of the Constitution, the 2nd Amendment rights are no more nor less than the 1st Amendment rights, and the 4th Amendment rights to be free from unreasonable searches and seizures.
8.5.2008 5:21pm
TomH (mail):
The real problem with the string cites is not their content or correctness, but the fact that I stopped reading them waaaay up at paragraph 6 of 1:09 pm.

(I spent more time looking up the posting time of the first Gun Show message than I have spent reading his posts)
8.5.2008 5:22pm
TomH (mail):
BTW Mr. Show, to a large extent (but not universally) you are preaching to the converted. I think that many people who frequent this blog see things your way, in spirit, if not in detail.
8.5.2008 5:25pm
cboldt (mail):
-- the framers, by and large, did not believe that there was a fundamental human right to rise up against the government. --
.
So, that "Declaration of Independence" thing was rendered obsolete as a statement of principle, via the adoption of the Constitution.
8.5.2008 5:33pm
GunShowOnTheNet (mail) (www):
J. Aldridge: "Lemme guess you do and it has nothing to do with a political compact, right?"

Yes indeed I do, and I can back it up:

Right to Keep and Bear Arms -

Historical Directories:

Origins

Precedent

After The Fact

Amendment II and the Law
8.5.2008 5:39pm
GunShowOnTheNet (mail) (www):
PatHMV:

"We deprive felons of all sorts of freedoms... voting, speech, personal liberty itself. I have a "natural right" to personal freedom to walk around as I please, as well, but that's taken away from me when I'm convicted of a crime. From the perspective of the Constitution, the 2nd Amendment rights are no more nor less than the 1st Amendment rights, and the 4th Amendment rights to be free from unreasonable searches and seizures."

Yeah, but those pesky little words "shall NOT be infringed" come immediately to mind....

"No freeman shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government."

- Thomas Jefferson, recommendation for the Bill of Rights in the Virginia Constitution, [1776] (Also quoted by the usurpremes in the recent D.C. v. Heller decision).

Tell me, how can lawmakers enact a law which they were Constitutionally FORBIDDEN from enacting? And, what does that state about our judicial branch if they uphold "infringements"? Perhaps this might give a clue as to the TRUE intent of the amendment:

A CHARGE to the GRAND JURIES, "Thus the will of individuals is still left free; the abuse only of that free will is the subject of legal punishment", 1799
8.5.2008 5:57pm
Jim at FSU (mail):
WRITING IN CAPSLOCK IS MORE PERSUASIVE.

BUT WHAT ABOUT BOLD CAPSLOCK?

OH SHI-
8.5.2008 6:04pm
GunShowOnTheNet (mail) (www):
Jim at FSU:

"WRITING IN CAPSLOCK IS MORE PERSUASIVE.

"BUT WHAT ABOUT BOLD CAPSLOCK?

"OH SHI-"

Yeah, it's particularly effective when our servants in government and the people themselves have LOST sight of the whole reason the government was instituted to begin with....
8.5.2008 6:22pm
zippypinhead:
Sheesh... One last attempt to get this thread back on track:

Note that Doug Berman has had several posts on the effect of Heller on felon-in-possession laws and sentencing enhancements over at Sentencing Law and Policy.

For example, here's one interesting post where Prof. Berman tweaks Prof. Volokh. More importantly, his other posts on the general topic are linked.
8.5.2008 7:26pm
NickM (mail) (www):
Gun Show - congratulations. You're trying to render part of the Fifth Amendment meaningless. With due process of law, people can be deprived of property, liberty, and even life. But in your world, that does not inform the meaning of what is an infringement.

Nick
8.5.2008 7:42pm
GunShowOnTheNet (mail) (www):
NickM:

"Gun Show - congratulations. You're trying to render part of the Fifth Amendment meaningless. With due process of law, people can be deprived of property, liberty, and even life. But in your world, that does not inform the meaning of what is an infringement."

Care to look up the meaning of the word "infringed"? My world? How about you take a look at the words of the men that FRAMED the amendment? Did you even bother to read all of the materials linked in the post "8.5.2008 1:09pm"? No, of course you didn't.

No, it's more like >you< are trying to play the role of the sycophant:

"Let it be remembered finally, that it has ever been the pride and boast of America, that the rights for which she contended, were the rights of human nature. By the blessing of the author of these rights, on the means exerted for their defence, they have prevailed against all opposition, and form at this time the basis of thirteen independent states. No instance has heretofore occurred, nor can any instance be expected hereafter to occur, in which the unadulterated forms of Republican government can pretend to so fair an opportunity of justifying themselves by their fruits. In this view the citizens of the United States are responsible for the greatest trust ever confided to a political society. If justice, good faith, honor, gratitude and all the other virtues qualities which ennoble the character of a nation, and fulfil the ends of government, be the fruits of our establishments, the cause of liberty will acquire a dignity and lustre which it has never yet enjoyed; and an example will be set which cannot fail to but have the most favourable influence on the rights of mankind. If on the other side, our governments should be unfortunately blotted with the reverse of these cardinal and essential qualities virtues, the great cause which we have engaged to vindicate will be dishonored and betrayed; the last and fairest experiment in favour of the rights of human nature will be turned against them, and their patrons and friends exposed to be insulted and silenced by the sycophants votaries of tyranny and usurpation."

- James Madison, Journals of the Continental Congress, Address to the States, by the United States Congress Assembled. April 26, 1783.

What you are contending, is that the framers INTENDED to step up the SAME EXACT SYSTEM as the one they had just thrown off....

Tell me something. If what you contend were true, then why wasn't a law passed that removed the right from felons UNTIL 1934? Please do elaborate....
8.5.2008 8:29pm
NickM (mail) (www):
You write, but you do not understand. You merely grab phrases that you have seen before and think they are applicable.

I realize asking you to follow the logical implications of your arguments is rather like asking a chimpanzee to do calculus, but your position is that the Framers of the Constitution said that felons always retain the right following conviction to possess firearms. That would make keeping them in prison rather interesting. Oh, and federal laws prohibiting the possession of firearms by prisoners far predate 1934. 1934 is just when they decided to make the forfeiture of rights as part of punishment permanent.

Now go back to your logically challenged ranting.

Nick
8.5.2008 9:29pm
cboldt (mail):
-- federal laws prohibiting the possession of firearms by prisoners far predate 1934. 1934 is just when they decided to make the forfeiture of rights as part of punishment permanent. --
.
The question is whether or not that statutory forfeiture is constitutional.
.
The statutory tax on possession/transfer of short barrel rifles and shotguns, as handled in the Miller case, is likewise of questionable constitutionality. That part of the NFA would have been found unconstitutional in light of the 2nd amendment, on a judicial finding that short barrel shotguns are any part of the ordinary military equipment or that their use could contribute to the common defense.
.
The point of "possession of firearms by prisoners" is a joke, right?
8.5.2008 9:40pm
GunShowOnTheNet (mail) (www):
NickM:

"Gun Show - congratulations. You're trying to render part of the Fifth Amendment meaningless. With due process of law, people can be deprived of property, liberty, and even life. But in your world, that does not inform the meaning of what is an infringement."

Now, let us broach this from a different angle shall we?
When does punishment for a crime cease? That's right! When the lawfully imposed sentence has been served, CORRECT? And, since Self-Defense/Preservation is the First Law of Nature and an INALIENABLE right that "NEVER ceases" [See: "The right of self-defence never ceases. It is among the most sacred, and alike necessary to nations and to individuals." -- President James Monroe, Nov. 16, 1818 message to the U.S. House and Senate. Journal of the Senate of the United States of America, November 17th, 1818]. (Mr. Monroe was AT the debates concerning the Constitution and Bill of Rights). Then, since our government has NO delegated authority to interfere with it in ANY fashion. All that they can do, in a Constitutionally legal manner, is provide punishment for abuse or misuse. (Because they are EXPRESSLY RESTRICTED from interfering with ANY free citizen "keeping and bearing arms"). When a person is in "custody" they are under the supervision, and are to be defended by government. When released, the [INALIENABLE] right and duty of Self-Defense/Preservation is resumed. Unless of course, the government wants to provide 24 hour protection while they are disarmed. To contend anything different could very well be construed as being in support of "cruel and unusual punishment".
8.5.2008 10:10pm
GunShowOnTheNet (mail) (www):
NickM:

"You write, but you do not understand. You merely grab phrases that you have seen before and think they are applicable.

"I realize asking you to follow the logical implications of your arguments is rather like asking a chimpanzee to do calculus, but your position is that the Framers of the Constitution said that felons always retain the right following conviction to possess firearms. That would make keeping them in prison rather interesting. Oh, and federal laws prohibiting the possession of firearms by prisoners far predate 1934. 1934 is just when they decided to make the forfeiture of rights as part of punishment permanent.

"Now go back to your logically challenged ranting."

Understand FAR more than you [apparently] >ever< will, chump. To Wit:

GunShowOnTheNet.com

You [erroneously] stated:

"and federal laws prohibiting the possession of firearms by prisoners far predate 1934".

Please provide PROOF that backs that [errant] statement....
8.5.2008 10:16pm
cboldt (mail):
-- Please provide PROOF that backs that [errant] statement.... --
.
I think it's a reference to literally prisoners. Convicts in prison cells. Similarly, people who are jailed for lesser offenses typically are forbidden to possess firearms while they are in jail.
.
I'm not sure that's codified as a law anywhere, but I'm pretty sure that's the "argument" being advanced. The argument rings of, "If prisoners can't have guns while they are in prison, then you are wrong."
8.5.2008 10:23pm
GunShowOnTheNet (mail) (www):
cboldt - That, I thought, would be a natural assumption. Of course you realize that I am referring to people that had formerly offended. However, even in prison/jail the right to Self-Defense is still in full force. Even though the right to ARMED Self-Defense is of course temporarily removed.
8.5.2008 10:42pm
cboldt (mail):
-- Even though the right to ARMED Self-Defense is of course temporarily removed. --
.
At which point, your opponent in argument will claim victory, supposedly on account of your error in assigning "shall not be infringed" to be absolute, even reaching to prisoners in prisons.
.
At any rate, I understand your argument. Just felt like sticking my nose into the argument between you and NickM.
8.5.2008 10:59pm
Jim at FSU (mail):
This is a great argument, except for how it is pretty much divorced from any actual discussion of the law.

Oh wait, the other weakness is that it is just a collection of quotes with excessive use of CAPSLOCK and BOLD (emphasis added, lol), bereft of actual argument to tie the quotes together into some sort of cohesive whole.

Upon further reflection, this thread pretty much fails it.
8.6.2008 12:12am
GunShowOnTheNet (mail) (www):
Apparently "Jim at FSU" doesn't comprehend the whole subject of "law" in a Constitutional Republic. Nor does it appear that he realizes just how much the U.S. Supreme court relies on historical quotes to justify their opinions. How sad, really it is....
8.6.2008 12:39am
Highlander:
For all of those whom would argue that the Federal Government may regulate the exercise of individual rights, I ask just this: Find =where= in the USC, i.e. Article, Section, paragraph and/or clause where the power is granted.

Since I already KNOW that you will neither find that power so enumerated, nor even hinted at, then the Heller decision —insofar as regulation is concerned— is faulted extremely.

Ergo, the 1934 NFA, the 1968 GCA, and all other enacted laws are without legal standing, inasmuch that there is no legal authority for those Acts to exist.

The problem here, arrises from the fact that virtually all of the sitting justices at the USSC were at one point jurists of their respective states.

A state judge deals with powers which are very much different from those delineated in the Federal Constitution.

State Constitutions concern themselves with purely state matters, and the laws which issue in the name of those Constitutions connote the authority to determine ~reasonable~ limitations, such as not discharging a firearm irresponsibly, or disturbing of the peace, etc.

But in no case of that, may said laws transgress the rights of the People otherwise, such as to inhibit, limit, or otherwise reduce a right to a mere privilege.

Now, those USSC justices have it in mind that the Federal Government may proceed to enact legislation in the same vein as the state laws which they were formerly familiar.

But NO SUCH POWER exists.

At best, all they are really left with —if they are intellectually honest— are the words of the Art. of Amend. in question: The right of the People to keep and bear arms =SHALL NOT= be infringed.
8.6.2008 5:14am
Highlander:
For all of those whom would argue that the Federal Government may regulate the exercise of individual rights, I ask just this: Find =where= in the USC, i.e. Article, Section, paragraph and/or clause where the power is granted.

Since I already KNOW that you will neither find that power so enumerated, nor even hinted at, then the Heller decision —insofar as regulation is concerned— is faulted extremely.

Ergo, the 1934 NFA, the 1968 GCA, and all other enacted laws are without legal standing, inasmuch that there is no legal authority for those Acts to exist.

The problem here, arrises from the fact that virtually all of the sitting justices at the USSC were at one point jurists of their respective states.

A state judge deals with powers which are very much different from those delineated in the Federal Constitution.

State Constitutions concern themselves with purely state matters, and the laws which issue in the name of those Constitutions connote the authority to determine ~reasonable~ limitations, such as not discharging a firearm irresponsibly, or disturbing of the peace, etc.

But in no case of that, may said laws transgress the rights of the People otherwise, such as to inhibit, limit, or otherwise reduce a right to a mere privilege.

Now, those USSC justices have it in mind that the Federal Government may proceed to enact legislation in the same vein as the state laws which they were formerly familiar.

But NO SUCH POWER exists.

At best, all they are really left with —if they are intellectually honest— are the words of the Art. of Amend. in question: The right of the People to keep and bear arms =SHALL NOT= be infringed.
8.6.2008 5:15am
Highlander:
For all of those whom would argue that the Federal Government may regulate the exercise of individual rights, I ask just this: Find =where= in the USC, i.e. Article, Section, paragraph and/or clause where the power is granted.

Since I already KNOW that you will neither find that power so enumerated, nor even hinted at, then the Heller decision —insofar as regulation is concerned— is faulted extremely.

Ergo, the 1934 NFA, the 1968 GCA, and all other enacted laws are without legal standing, inasmuch that there is no legal authority for those Acts to exist.

The problem here, arrises from the fact that virtually all of the sitting justices at the USSC were at one point jurists of their respective states.

A state judge deals with powers which are very much different from those delineated in the Federal Constitution.

State Constitutions concern themselves with purely state matters, and the laws which issue in the name of those Constitutions connote the authority to determine ~reasonable~ limitations, such as not discharging a firearm irresponsibly, or disturbing of the peace, etc.

But in no case of that, may said laws transgress the rights of the People otherwise, such as to inhibit, limit, or otherwise reduce a right to a mere privilege.

Now, those USSC justices have it in mind that the Federal Government may proceed to enact legislation in the same vein as the state laws which they were formerly familiar.

But NO SUCH POWER exists.

At best, all they are really left with —if they are intellectually honest— are the words of the Art. of Amend. in question: The right of the People to keep and bear arms =SHALL NOT= be infringed.
8.6.2008 5:15am
Tony Tutins (mail):

-- the framers, by and large, did not believe that there was a fundamental human right to rise up against the government. --
.
So, that "Declaration of Independence" thing was rendered obsolete as a statement of principle, via the adoption of the Constitution.

The Constitution disfavors rebellion. I guess they believed one Revolution was sufficient:

Art. I Section 8: Congress has power to call forth the Militia to suppress Insurrections

Art. I Section 9: The privilege of the Writ of Habeas Corpus may be suspended in Case of Rebellion.

A later Congress punished those who had rebelled against the United States:

Amendment 14: The right to vote for electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, may be denied to male citizens who participated in rebellion.

Persons who had taken an oath to support the Constitution but then engaged in insurrection or rebellion cannot become a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State.
8.6.2008 1:46pm