The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools
Old March 22, 2013, 09:55 PM   #26
elDiabloLoco
Member
 
Join Date: December 18, 2012
Location: USA
Posts: 77
Quote:
You want to use the militia clause to justify military weapons, but reject the training, order, and discipline that were historically militia obligations.
Only to the extent that the opposition rejects "shall not be infringed".

Currently, there seems to be little hesitation to accept the presumption that currently in-vogue "regulation" is reasonable. Just because our rights have been historically abused does not mean it is acceptable.

Otherwise I could still be rounded up and sold down the river.
elDiabloLoco is offline  
Old March 22, 2013, 10:07 PM   #27
Tom Servo
Staff
 
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 10,327
Quote:
You want to use the militia clause to justify military weapons, but reject the training, order, and discipline that were historically militia obligations.
I'd love to bring those back. Make it a one-semester thing in high school, and you would see change for the better, across society.

Of course, the mere suggestion of such a thing doesn't tend to go over well in PTA meetings.
__________________
Sometimes it’s nice not to destroy the world for a change.
--Randall Munroe
Tom Servo is offline  
Old March 22, 2013, 11:57 PM   #28
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,701
Quote:
Originally Posted by elDiabloLoco
...My actual implication is that the weapons are not the issue. Gun control is about people control...
And that is why pointing to Switzerland and Israel is not helpful. Guns are closely controlled in Switzerland and Israel.

The rules in Switzerland were discussed in the article (written by a Swiss gun owner) to which Aguila Blanca linked in post 22. Those rules include obtaining a licenses for all guns, a background check and registration. Additional rules, including specified military training, apply to keeping one's military service guns at home.

The rules are more strict in Israel. I outlined those rules, based on information obtained from the website of Jews for the Preservation of Firearms Ownership, in this post:
Quote:
See this:
Quote:
The Israel Dept. of the Interior makes notification to the general public the requirements necessary for the obtaining of a permit to possess a firearm:

1. Applicant must be a permanent resident of Israel for 3 consecutive years prior to making application for a firearms permit.

2. Applicant must be 21 years of age.

3. The permit request must be for personal use, not to engage in the business of firearms sales.

4. Applicant must fall into one of the following categories:

a. Part-time reservist (volunteer) for 3 years- may own 1 handgun
b. Such a reservist (volunteer) is a member of a gun club - may own 1 rifle
c. Professional, licensed public transportation driver, transporting a minimum of 5 passengers - may own 1 handgun
d. Licensed animal control officer- may own 2 hunting rifles, *not* full automatic weapons, or semi-automatic weapons with a limited capacity magazine.
e. Full-time dealer of jewelry or large sums of cash or valuables - may own 1 handgun

West Bank and Gaza Strip Settlers:

1. A resident in a militarily strategic buffer zone, essential to the security of the State of Israel - may own 1 handgun

2. A business owner in these geographic areas - may own 1 handgun

Veterans:

1. Veterans of the Regular Army honorably discharged with the rank of non-commissioned officer, and veterans of the Reserve Army with the rank of regimental commander- may own 1 handgun

2. Retired law enforcement officers with the rank of sergeant - may own 1 handgun

3. Retired prison guards with the rank of squadron commander- may own 1 handgun

Individuals:

Upon presenting documentation that one is about to receive a souvenir, a prize, an inheritance, or an award of appreciation from the Israel military.

People of the Gun by Larry Derfner (in the Jerusalem Post, May 19, 2002)
Quote:
Originally Posted by elDiabloLoco
...Nor do the Swiss and Israeli's have a societal collapse due to their citizens possession of battle implements...
Would it be acceptable to you if United States citizens were permitted to possess military weapons on the same terms and subject to the same conditions that apply to Swiss and Israeli citizens' possession of such weapons (see above)? Gun control advocates might well argue that the reason it works in Switzerland and Israel is the governmental control applied to such possession.

I don't think that's where you want to go.

Quote:
Originally Posted by elDiabloLoco
...Timidity is not a useful negotiation stratagem,...
Neither are specious arguments.

I'm not trying to be critical. The goal here is to help us all be more effective advocates for the RKBA. It's important to our cause to develop the habit of rigorously investigating the facts we rely on and base our arguments on verifiable and well understood facts from solid, reputable sources -- not rumor or incomplete information.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old March 23, 2013, 08:22 AM   #29
Come and take it.
Senior Member
 
Join Date: May 16, 2009
Location: Kentucky
Posts: 999
Shall not be infringed is very important. Considering that Shall in any other place in the constitution is considered holy script.
Come and take it. is offline  
Old March 23, 2013, 08:47 AM   #30
elDiabloLoco
Member
 
Join Date: December 18, 2012
Location: USA
Posts: 77
Quote:
Neither are specious arguments.
Yet specious arguments are the stock in trade of the anti-gun Grabberz lobby.

Until recently, they have prevailed more often than seems reasonable in a system originally based on individual freedom. So apparently specious arguments ARE a useful stratagem. Otherwise penumbras would cease to emanate so profusely.

Quote:
Would it be acceptable to you if United States citizens were permitted to possess military weapons on the same terms and subject to the same conditions that apply to Swiss and Israeli citizens' possession of such weapons (see above)? Gun control advocates might well argue that the reason it works in Switzerland and Israel is the governmental control applied to such possession.
No. Their laws/rules/restrictions are not backed by a 2A right. So their rules/restrictions make no sense in our legal context.

That does nothing to undermine the observation of the rational behavior of their individual private citizens in relation to the legal systems they use.

This is where a legal education becomes an impediment. My point was that all of those swiss reservists who chose to keep their issued weapon after leaving service do not later go on to cause societal chaos. That's not a legal argument, it is a simple observation that completely undermines any public safety BS. Guns don't cause individuals to run amok. No firearms of any sort were used to bring down the twin towers - nor to defend against it.

If anyone were really concerned with safety, rather than be gun grabberz they would look to ban automobiles and abortions. Instead they choose to spend energy to infringe a constitutionally protected right.

Bogging down in irrelevant minutia is how 200 years of emanating penumbras has undermined public trust in the legal system.

Quote:
I'm not trying to be critical.
That's okay. I like arguing as much as any real lawyer. I am just not practiced nor formally educated with a state approved certification and license(i.e., fees not paid to guildmasters).

If I were practiced and educated and licensed I might have more swiftly directed the argument back to the more relevant point that I sought to make. The Peril of Scalia lies in defining "in common use at the time". That seems to be carefully unexplored brand-new territory. In common use BY WHOM? Granny at the retirement village in Florida? [I would expect that to be the position of the Grabberz.]

2A is not about hunting squirrels at my pappy's pecan grove. And it is obvious the founders had little trust in formal government, and much more trust in the private individual - so unlike today's gun grabberz would have us beleive.

"It is not that simple!" Well, yes. It is. We have rights. The grabberz want to take them via government. Kinda exactly opposite any plain understanding of original intent. And if the gun grabberz want the constitution to "live and breath" again when it serves them, then it needs to take into account that fully automatic weapons are now "in common use at the time". That is not "extreme", nor is it radical.

[I have used this conversation experimentally on several friends, who were at a complete loss to making a rational counter-argument. A couple reverted immediately into name calling, which is always a sign of success. The more thoughtful went silent. An even better indicator of success. ]

In reality there is little that can be done with a full auto AK or AR that cannot be done with a semi-auto variant. Full auto does excel at wasting ammo and missing the target[ in unskilled hands] - perhaps we might in reality improve public safety if full auto were legal.

But reality is often anathema to a useful legal argument, so apologies for digression down the rabbit hole. Wasckilly wabbits......
elDiabloLoco is offline  
Old March 23, 2013, 09:58 AM   #31
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,701
Quote:
Originally Posted by elDiabloLoco
Yet specious arguments are the stock in trade of the anti-gun Grabberz lobby....
So what? That helps us only when we can counter with solid, evidence based argument.

Quote:
Originally Posted by elDiabloLoco
...My point was that all of those swiss reservists who chose to keep their issued weapon after leaving service do not later go on to cause societal chaos. That's not a legal argument, it is a simple observation that completely undermines any public safety BS....
Nope. It is a faulty observation which doesn't undermine anything.

Perhaps, as gun control advocates might well point out, the Swiss experience illustrates, and proves, the importance of requiring certain training, oversight of gun owners as well as registration, licensing and universal background checks (as done by the Swiss) as a requirement for gun ownership.

If Swiss gun ownership is supposed to be a model, then all attributes of their process are material.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old March 23, 2013, 12:01 PM   #32
elDiabloLoco
Member
 
Join Date: December 18, 2012
Location: USA
Posts: 77
Quote:
Nope. It is a faulty observation which doesn't undermine anything.
A point on which we obviously will reach no agreement.

Quote:
If Swiss gun ownership is supposed to be a model, then all attributes of their process are material.
If material, their framework is in far more conflict with the RKBA than our own already over zealous codified infringements.

These foreign systems make great examples of laws that go far beyond the pale of a reasonable layman's interpretation of what is permissible under 2A. By all means go there. Our system of government is meant to be different, erring on the side of protecting freedom and liberty.

The constitution was written in a way that is easily understandable by laymen. 2A was crafted from the position of trust in the individual over trust in governmental tyranny/largess/permission. If RKBA is a right, why do I need a permit? "Because the court said so". Well, yeah, but were they correct when they said so? [me: NO]

I have a permit for a "privilege" of driving an automobile....but can drive on my own personal private property without it. I have a "right" to keep a firearm, but without the permit I am possibly a felon(varies by state/local code), even on my own property. Statistically, the auto is more dangerous. If I need a permit, it is no longer a right.

Your premise rejects the possibility that citizens might be able to manage their own affairs locally and that current law, rather than being a travesty, is in fact an acceptable starting point for future erosion.

The starting point for argument should be to make no accommodation to any people control advocates whose rationalizations historically are used to support current codified 2A infringements. The appearance is that we are always in defense against limitations to our rights, and there are petty tyrants in every jurisdiction eager to limit them. The burden should be upon those seeking to limit our rights, not upon those seeking to save them. Freedom does not come with a guarantee of 100% safety.

O'course, Juris Doctors may feel differently. Thar's beaucoup money in them thar infringements and associated petty tyrant whispering.
elDiabloLoco is offline  
Old March 23, 2013, 01:06 PM   #33
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,701
Quote:
Originally Posted by elDiabloLoco
Quote:
If Swiss gun ownership is supposed to be a model, then all attributes of their process are material.
If material, their framework is in far more conflict with the RKBA than our own already over zealous codified infringements. ...
Yes indeed. It is. And by proposing your argument you have demonstrated that you apparently don't understand argument, evidence, or proof.

You claim that the results in Switzerland demonstrate that possession by citizens of military weapons:
Quote:
...Doesn't seem to be the cause problems for the Swiss...
But those results can only demonstrate that under the circumstances that exist in Switzerland, i. e., Swiss culture, required military training, gun licenses, background checks, registration, etc., those results occur. The results in Switzerland can not demonstrate that similar results may be expected under different circumstances.

Quote:
Originally Posted by elDiabloLoco
...Your premise rejects the possibility that citizens might be able to manage their own affairs locally and that current law,...
But you don't understand my premise. My premise is simply that your use of Switzerland and Israel to support your advocacy of the RKBA is specious and useless. If you really want to effectively advocate for the RKBA, you need to understand the facts better.

Quote:
Originally Posted by elDiabloLoco
...If RKBA is a right, why do I need a permit? "Because the court said so". Well, yeah, but were they correct when they said so? [me: NO]...
But here you miss the point that in the real world what the courts say on matters of law, including the Constitution, trumps your opinion. Why? Because the Founding Fathers said so (Constitution of the United States, Article III, Sections 1 and 2):
Quote:
Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,...
The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.

Quote:
Originally Posted by elDiabloLoco
...O'course, Juris Doctors may feel differently. Thar's beaucoup money in them thar infringements and associated petty tyrant whispering....
Nonetheless, in the real world things are as they are.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper

Last edited by Frank Ettin; March 23, 2013 at 01:26 PM. Reason: clarify
Frank Ettin is offline  
Old March 23, 2013, 02:43 PM   #34
elDiabloLoco
Member
 
Join Date: December 18, 2012
Location: USA
Posts: 77
Quote:
But here you miss the point that in the real world what the courts say on matters of law, including the Constitution, trumps your opinion. Why? Because the Founding Fathers said so (Constitution of the United States, Article III, Sections 1 and 2):
No, don't miss that point at all. Just because I am required to abide by an unjust legal decision does not mean I need agree that it was a correct resolution, or that it was indeed decided correctly for society at large.

Judges/courts are often forced by these dances in conflicting precedent into technically correct although obviously unjust decisions. Though they seldom care to correct their contortions in a clear manner, hope springs eternal. If it never happened I might still be tied to a wagon scrapping sugar cane on some hellhole plantation, being flogged for my insolence.

Quote:
specious and useless
No point going further with it then, eh? O'course, if such argument really favored the people-control grabberz position, it might be worth considering a rebuttal.
elDiabloLoco is offline  
Old March 23, 2013, 02:58 PM   #35
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,701
Quote:
Originally Posted by elDiabloLoco
Quote:
But here you miss the point that in the real world what the courts say on matters of law, including the Constitution, trumps your opinion. Why? Because the Founding Fathers said so (Constitution of the United States, Article III, Sections 1 and 2):
No, don't miss that point at all. Just because I am required to abide by an unjust legal decision does not mean I need agree that it was a correct resolution, or that it was indeed decided correctly for society at large. ...
No, you don't have to agree, but it doesn't matter whether or not you agree. Nor does it matter whether you think it's correct for society at large. The opinions of courts on matters of law, including the Constitution, affect the lives and property of real people in the real world. Your opinions on such things do not.

And if we want to further the RKBA in the real world we need to understand how things work in the world. We need to be able to effectively function in the political system. We also need to be able to effectively function in the legal system.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old March 23, 2013, 04:45 PM   #36
Aguila Blanca
Senior Member
 
Join Date: September 25, 2008
Location: CONUS
Posts: 6,400
Quote:
Originally Posted by elDiabloLoco
If I were practiced and educated and licensed I might have more swiftly directed the argument back to the more relevant point that I sought to make. The Peril of Scalia lies in defining "in common use at the time". That seems to be carefully unexplored brand-new territory. In common use BY WHOM? Granny at the retirement village in Florida? [I would expect that to be the position of the Grabberz.]
If you read the majority opinion in Heller carefully, it pretty much appears that Mr. Scalia bent over backwards to separate the RKBA from service in a/the militia. He wrote in more than one place that the core right protected by the 2A is the right to keep and bear arms for self-defense.

If the right is individual self-defense, then analysis of what firearms are in common use would have to take into account the firearms chosen by individuals for self-defense. And those are overwhelmingly semi-automatic pistols with "high" capacity feeding devices, and AR-15 pattern rifles with 30-round magazines.
Aguila Blanca is offline  
Old March 23, 2013, 06:37 PM   #37
elDiabloLoco
Member
 
Join Date: December 18, 2012
Location: USA
Posts: 77
Quote:
If you read the majority opinion in Heller carefully, it pretty much appears that Mr. Scalia bent over backwards to separate the RKBA from service in a/the militia. He wrote in more than one place that the core right protected by the 2A is the right to keep and bear arms for self-defense.

If the right is individual self-defense, then analysis of what firearms are in common use would have to take into account the firearms chosen by individuals for self-defense. And those are overwhelmingly semi-automatic pistols with "high" capacity feeding devices, and AR-15 pattern rifles with 30-round magazines.
Yes. The majority opinion just doesn't seem to get there. "Dangerous and unusual" remains fairly ambiguous. Any less than what you suggest would/will put a lot of people at risk of becoming overnight felons.

The problem I see with accepting that standard is they cannot ever be in common use if they are already illegal. Catch 22. No accommodation for future technological advances, we are legally frozen into current weapon technology. [advancement not possible? ha.]

That would be a huge concession to the people control lobby. I'd rather live with the pitfalls of the "front-line-grunt" standard of "in common use". Full auto rifles are a lot less dangerous than tyranny by bureaucracy.
elDiabloLoco is offline  
Old March 23, 2013, 06:39 PM   #38
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 5,084
Quote:
Originally Posted by elDiabloLoco
. . . . No accommodation for future technological advances, we are legally frozen into current weapon technology. [advancement not possible? ha.]
Read Heller more carefully. The majority opinion dismisses that line of thinking as "bordering on frivolous," if I remember the wording correctly.
__________________
A gunfight is not the time to learn new skills.

If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
Spats McGee is offline  
Old March 24, 2013, 01:23 PM   #39
elDiabloLoco
Member
 
Join Date: December 18, 2012
Location: USA
Posts: 77
Thanks.

Quote:
Some have made the argument, bordering on the frivolous,
that only those arms in existence in the 18th century
are protected by the Second Amendment. We do not interpret
constitutional rights that way. Just as the First
Amendment protects modern forms of communications,
e.g., Reno v. American Civil Liberties Union, 521 U. S. 844,
849 (1997), and the Fourth Amendment applies to modern
forms of search, e.g., Kyllo v. United States, 533 U. S. 27,
35–36 (2001), the Second Amendment extends, prima
facie, to all instruments that constitute bearable arms,
even those that were not in existence at the time of the
founding.
This snippet was what caused me to foolishly make my original post to this thread(#13).

Taken along with your third excerpt in post #10, it seems like applying a common use test to only the civilian market sets up a framework for implementing a technology freeze their opinion dismisses as an argument "bordering on the frivolous". Legislation that prevents new invention from reaching the civilian market would effectively freeze us to current technology.

O'course, I'll probably have assumed room temperature before that matters. Seems like an invitation for future additional mischief.
elDiabloLoco is offline  
Old April 13, 2013, 11:05 AM   #40
Charles Mosteller
Junior Member
 
Join Date: April 13, 2013
Posts: 10
Quote:
Originally Posted by Spats McGee
The 1A doesn't say "Congress shall pass no law respecting the establishment of religion, except by popular vote." The BoR, in large part, protects the individual from mob rule.
Quote:
Originally Posted by zukiphile
Until and unless someone figures out how to clone Clarence Thomas eight times and get all eight clones nominated and confirmed, I do not see Second Amendment jurisprudence clarifying into "what part of "shall not be infringed" do you not understand?".
Quote:
Originally Posted by Come and take it.
Shall not be infringed is very important. Considering that Shall in any other place in the constitution is considered holy script.
I couldn't find a quote button (and it could be because I am newly registered here), so trying to quote specific comments is more tedious and time-consuming than is typical in online forums these days, but I wanted to inject a few words into one thing that several different individuals seem to be centering on - namely, on the word "shall," by virtue of its inclusion into the Second Amendment.

Before I do elaborate a bit, however, there's one more quote from this particular discussion thread that I want to quote, since I think that it makes a distinction that is worthy of always keeping in mind.

Quote:
Originally Posted by Frank Ettin
And if we want to further the RKBA in the real world we need to understand how things work in the world. We need to be able to effectively function in the political system. We also need to be able to effectively function in the legal system.
There is the political system, and there is the legal system. There is politics, and there is law. The distinction is an important one. It's relevance is omnipresent.

It was the title of this thread that caught my eye, last night, as I was casually browsing the Internet for first one thing and then another. The Perils of Scalia. It was a subject heading that I thought was amusing. So, I decided to check it out.

My curiosity was met by Glenn E. Meyer's concerns. Glenn was wondering aloud about whether the Heller decision by the United States Supreme Court was what he, in his own words, termed "a definitive game changer," and about whether Justice Scalia and company realize they cannot dance around what Glenn characterized as "the issue" this time.

Ah. . .The perils of Scalia.

My own view on it is that Justice Scalia likely chose his words carefully. He is well-versed in the art of framing a legal argument. With an eye toward something known as judicial restraint, he did not try to resolve every concern related to the right to keep and bear arms. Rather, there was a case before the Court, and he authored an opinion for the Court that addressed that particular case. Certainly, the Court's holding has ramifications that will continue to ripple into the future. But, and this is just me speaking with my opinion of one, I think that "The Pearls of Scalia" would be a more accurate way to describe Scalia's contributions in the Heller decision, or its aftermath, than "The Perils of Scalia."

Scalia hand-delivered the golden egg from the goose of judicial power. It might be wise to ponder anew how best to now obtain more golden eggs from this very same goose.

If the desire is to frame legal arguments more narrowly, and to figure out how to build a better Second Amendment mousetrap by weaving a more precise pattern with legal nuance, then what better place to start than with the word "shall" that appears in the wording of the Second Amendment.

In legal parlance, shall is what is known as a "word of command." If you juxtapose shall as a word of command with shall as discretionary in nature, the question begs to be asked, if the word shall is not indicative of a word of command, then what word is?

Laws are comprised of words. A fight over what a law means, then, ultimately boils down to a fight over words - and what they mean, but not just and only what they mean. How they apply, for instance. In which instances do they apply, or in which instances does a certain word apply. Also, the extent to which they apply, and the limits to which they extend. All this without even getting into the realm of legal principles, that also apply.

Framing shall as being indicative of a word of command is all fine and dandy, but while persuasive as a standalone item, it does not, of itself, comprise the whole cloth on larger issues. There is, after all, more to the Second Amendment than just the words "shall not."

The right to keep and bear arms, whatever else may be said about it, is either a right that is absolute in nature, or it is not. If you frame your legal arguments in support of, or based upon, the proposition that the right to keep and bear arms is an absolute right (or plural absolute rights, as in two of them - two absolute rights, if you prefer to distinguish the right to keep arms from the right to bear arms), then you will, I believe, run the peril (to borrow from Glenn) of doing the legal equivalent of what's known as "flailing against the wind."

If the world gives you lemons, then make lemonade, the old adage goes.

The "wind" to which I refer, above, is the judicial power. Attempting to frame the right to keep and bear arms as an absolute right is akin, not to climbing Mount Everest, but rather, to climbing Mons Olympus.

Rights as absolute in nature share something in common with government powers as being plenary in nature - they both prove to be problematic for something called "the concept of ordered liberty upon which our constitutional system was founded."

Not so much problematic for us, as individuals engaged in casual and informal discussions of such matters. Rather, problematic for the judicial power guided by judicial restraint, when it seeks to adjudicate complex issues put before it - complex issues with competing principles than animate each, respectively, and which clash with one another within the sphere of the judicial power. At least, that's a quick attempt at characterizing it off-the-cuff.

From my perspective, it's not just a matter of which individual lines of argument that you want to advance before the Court. The order in which you attempt to argue each of them can, I believe, have bearing upon how your entire presentation fairs.

That which you cede, you do not have to persuade the Court on. That may strike some as a rather counter-productive or counter-intuitive way to advance one's cause, but before you toss the baby out with the bathwater, one might be well served to more fully grasp how the art of ceding can be utilized to one's advantage. In a sword fight, it can be akin to something known as parrying. It can also be a path to crafting one's core argument in a more efficient manner, thereby yielding greater impact on narrow questions.

The independent judiciary has a natural predisposition to ruling narrowly. Judicial restraint is the judiciary's bread and butter. So, why exhaust one's self trying to feed the judiciary the legal equivalent of sand, when you already know what it likes to eat?

Rather than eat sand, what the judiciary is far more likely to do is to eat you alive - by rejecting legal arguments that are sloppy or which seek to accomplish something contrary to the concept of ordered liberty.

When you do cede in a line of argument, it is important to understand what it is that you are ceding, and where you do cede, you want to make certain that you cede narrowly, rather than broadly, and you want to do so in conjunction with a broader purpose.

To advance the right to keep and bear arms as an absolute right before the United States Supreme Court over two hundred years after the Constitution became supreme law of the land is a sizable challenge, to say the least. To cede that the right to keep and bear arms is not an absolute right is not the same thing as ceding that it is not a right that is fundamental in nature, or that it is not a right that is very broad in nature.

The Second Amendment has a lot of landscape, from a verbal or word perspective. If you want to seize the equivalent of the judicial high ground, it is not likely to be found in the swamps and morass of absolutism.

If you frame your lines of reasoning with shall being indicative of a word of command, while saddling it with the notion that the right to keep and bear arms is a right that is absolute in nature, you damage the first part of your argument more than you strengthen the second part of your argument.

In any nation, a body of law on a given subject is something that transpires with the passage of time. It is said that patience is a virtue.

It is understandable that what the Heller and McDonald cases did not say give many a case of apprehension. But, that is one of the prices to be paid for judicial restraint.

Make no mistake about it - Heller was a seminal event. It was the origin of a legal tsunami. Its effect and impact will become only greater with the passage of time. While it may not be equivalent to a total solution, no case would be.

Scalia was no fool. He knew exactly what he was saying in the opinion that he authored. He knew what he was saying, and he knew how to say it, to achieve maximum possible effect. He made no effort to try and resolve all outstanding questions pertaining to the right to keep and bear arms. That would be both premature and over-reaching, from a judicial perspective.

Justice Scalia knows full well how to kill the legal equivalent of a vampire. But a single stake through the heart would be a quick and tidy way to slay the beast, of course. Yet, that's just not the way that things are properly done.

Even if life were truly that simple, then you're still going to need more than one stake (one case), if for no other reason than because there's more than one vampire to kill.

Scalia also knows that there's more than one way to slay a vampire, just as there's more than one way to skin the proverbial cat.

Heller wasn't the end of gun control vampirism. Scalia did demonstrate, however, that it is more than possible to slay this kind of legal vermin.

If you want to kill all of the vampires (gun control laws), then they have to be hunted down, one by one. Scalia only kills them, if you bring them to him.

My apologies for the intrusion, and I hope that you will all continue on with your discussion.

Take care.

Last edited by Charles Mosteller; April 14, 2013 at 12:09 AM. Reason: To correct typos.
Charles Mosteller is offline  
Old April 13, 2013, 11:11 AM   #41
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 5,084
Welcome to TFL, Charles Mosteller!

That's quite a first post you've put together there, and I'll have to read it in more depth when I get back from the groc store.

As for the quote button, you have to hit "Post Reply," and look above the box that you type in. It's not out there on the forum page, and has nothing to do with being a new member.
__________________
A gunfight is not the time to learn new skills.

If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
Spats McGee is offline  
Old April 13, 2013, 12:18 PM   #42
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,701
Welcome, Charles Mosteller.

More detailed information on posting a quote can be found here.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old April 13, 2013, 01:08 PM   #43
Salmoneye
Senior Member
 
Join Date: December 31, 2011
Location: Vermont
Posts: 1,346
Welcome, and thanks for that post...

I have long felt that Justice Scalia indeed knew very well what he was saying, but could never put it into words the way you have...

Bring on the next Vampire, please...
Salmoneye is offline  
Old April 13, 2013, 02:07 PM   #44
Glenn E. Meyer
Staff
 
Join Date: November 17, 2000
Posts: 15,686
The results count. Tell me how long it will take for the NY, CT and CO (and others in pipeline) laws are found to be unconstitutional under Heller, etc.

Otherwise strings of electrons are just that.

I'm an empiricist - I'm waiting for results.

I'd ask our legal eagles - what is the estimated time before the SAFE act gets to the SCOTUS - assuming they take the case?

PS - since the two recent SCOTUS decisions did not discourage those state actions - can we say that they were so decisive in squelching legislative attacks on the 2nd Amend. I doubt a state would try a law to re-segregative its schools. Certainly, attacks on Roe are popping up all over and that was said to be very clear.

If in close proximity to their passing, laws like those in NY, etc. overturned then I'd be wrong in my worries.

Also, a change in the court might easily use the carefully crafted language of reasonble restrictions to do quite a bit of restriction. It's an empirical question to see how it plays out.
__________________
NRA, TSRA, IDPA, NTI, Polite Soc.
http://www.teddytactical.com/archive...05_Feature.htm
Being an Academic Shooter
http://www.teddytactical.com/archive...11_Feature.htm
Being an Active Shooter

Last edited by Glenn E. Meyer; April 13, 2013 at 02:14 PM.
Glenn E. Meyer is offline  
Old April 13, 2013, 04:53 PM   #45
maestro pistolero
Senior Member
 
Join Date: August 16, 2007
Posts: 2,088
Glenn, I'm confused why you think the amount of time it takes for the watershed opinion of Heller versus DC to have its effect is a significant measure of its importance or efficacy. If we are successful, it will be because the wide net that was first cast is gradually drawn in until the least possible degree of infringement remains. We didn't get here overnight. What a legislature can do in a few weeks or months inevitably takes years to untangle in the courts.

The fact that the death knell for unlimited second amendment infringement is about 50 years behind the curve hasn't helped, but here we are. Kachalsky and it's ilk is only about carry outside the home. We still have to deal with assault weapons, sensitive places, scrutiny, so-called safe rosters, interstate travel and reciprocity (or equal protection, if you will), and, no doubt, a few other pithy issues that aren't coming to mind at the moment.

But as each case is decided, the noose tightens; broad principles will be settled, and infringement will be more and more difficult for states so inclined. It's going to take time, possibly decades to unravel this mess.
maestro pistolero is offline  
Old April 13, 2013, 05:02 PM   #46
Aguila Blanca
Senior Member
 
Join Date: September 25, 2008
Location: CONUS
Posts: 6,400
Quote:
Originally Posted by Maestro P
Glenn, I'm confused why you think the amount of time it takes for the watershed opinion of Heller versus DC to have its effect is a significant measure of its importance or efficacy. If we are successful, it will be because the wide net that was first cast is gradually drawn in until the least possible degree of infringement remains. We didn't get here overnight. What a legislature can do in a few weeks or months inevitably takes years to untangle in the courts.
But isn't that the problem? It didn't, but let's say the current trend started with the NY "SAFE" act. It's being challenged in court on (among other things) constitutional grounds. But while that process is on-going, Connecticut stepped up to the plate with their 139-page smorgasbord of new and amended gun laws, Colorado enacted their own version, and I believe New Jersey is poised to pass more draconian gun laws.

As more states pass more laws, the process of weeding them out and shooting them down becomes exponentially longer, more difficult, and more costly (for both sides). It would be nice (albeit not possible) if something like the NY SAFE act could have been zapped within days of passage, thereby sending a message to other states contemplating similar legislation.
Aguila Blanca is offline  
Old April 13, 2013, 05:30 PM   #47
L2R
Senior Member
 
Join Date: November 5, 2010
Location: North Carolina
Posts: 231
to: the most educated in law at FTL

from: the least educated in law.

I am color blind. I see black and white.

I have known that for many years, those in high places, both in business, law and government, see gray as well. In fact, the 80/20 rule seems to apply here.

I have watched for years our laws be tweaked, interpreted and seemingly inverted.

I do believe the above poster when they say it may take decades to tighten the noose but while the clock ticks, they are finding ways to cut the rope.

We were 1 SCOTUS vote away from a much different world in 2013. The UN treaty vote could nail the shut the platform from which they are perched.


It's only a pearl of Scalia if there is time for it to grow.
__________________
L2R


Evil cannot be reduced thru Legislation!

Last edited by L2R; April 13, 2013 at 08:08 PM.
L2R is offline  
Old April 13, 2013, 07:54 PM   #48
Glenn E. Meyer
Staff
 
Join Date: November 17, 2000
Posts: 15,686
Decades - I rest my case on the sound of Scalia's Celestial Chorus signaling the end to gun control attempts. Where is the Angelic Smilie?

Unless there is a sea change that moves major parts of the antigun demographics or (I don't see how), the SCOTUS comes forward with a more decisive opinion that clearly states common usage isn't a double barrel and reasonable restrictions don't include ARs, mags, carry in church, etc. - we have not really won.

One recalls that folks didn't want a SCOTUS case as we might have lost (5/4). Who is to say that SAFE might not be affirmed. Justices vote their politics as the best predictor.

Look at Roe - that isn't over and folks hope this court will overturn.

We might end up with the right across all states to have reasonable double barrel shotguns with birdshot loads. The 2nd protects the right to shoot them into the air (or through the door).

We are going to see a state by state polarization but depending on the next court appointment and elections - Heller and M. may mean very little.

Look, how many times did we state that you can defend yourself with shotgun and SW Model 10? That could be reasonable.
__________________
NRA, TSRA, IDPA, NTI, Polite Soc.
http://www.teddytactical.com/archive...05_Feature.htm
Being an Academic Shooter
http://www.teddytactical.com/archive...11_Feature.htm
Being an Active Shooter
Glenn E. Meyer is offline  
Old April 13, 2013, 08:01 PM   #49
Brian Pfleuger
Staff
 
Join Date: June 25, 2008
Location: Central, Southern NY, USA
Posts: 18,789
Quote:
Originally Posted by Glenn E Meyer
I'd ask our legal eagles - what is the estimated time before the SAFE act gets to the SCOTUS - assuming they take the case?
No legal eagle here, but from talking to Jim Tresmond, and if memory serves me correctly, he thought it would be next spring.
__________________
Still happily answering to the call-sign Peetza.
---
The problem, as you so eloquently put it, is choice.
-The Architect
-----
He is no fool who gives what he can not keep to gain what he can not lose.
-Jim Eliott, paraphrasing Philip Henry.
Brian Pfleuger is offline  
Old April 13, 2013, 08:15 PM   #50
Glenn E. Meyer
Staff
 
Join Date: November 17, 2000
Posts: 15,686
What does legal research indicate in similar situations on modern social issues?

Affirmative action, Roe, etc. I remember desegration was a slow road till a definitive decision.

We can be overly optimistic that Scalia and company will leap forward in admitting that they were not as clear as desired to truly support the 2nd. Amend.
__________________
NRA, TSRA, IDPA, NTI, Polite Soc.
http://www.teddytactical.com/archive...05_Feature.htm
Being an Academic Shooter
http://www.teddytactical.com/archive...11_Feature.htm
Being an Active Shooter
Glenn E. Meyer is offline  
Reply

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 05:36 PM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2014 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.15474 seconds with 7 queries