RE: 2 Challenge Gun Cases, Citing Bush Policy
Ed wrote: > At 07:17 PM 6/2/02, Lucky Green wrote: > >In United States v. Cruikshank, 92 U.S. 542 (1876), the > Supreme Court > >held that: > > > >... > > > >"The right to bear arms is not granted by the Constitution; > neither is > >it in any manner dependent upon that instrument for its > existence. The > >second amendment means no more than that it shall not be > infringed by > >Congress, and has no other effect than to restrict the powers of the > >national government." > > > > the 2nd Amendment solely > >constrains Congress from infringing upon the right to keep and bear > >arms while leaving the Executive free to infringe upon this > right, or > >deny its exercise entirely, at will. > > The Executive is part of the "national government" that > Cruikshank says is > restricted by the 2nd amendment, yes? One might read the decision this way, if the Supreme Court had not specifically written that "The second amendment means no more than that it shall not be infringed by Congress". The national government is simply mentioned in the decision because the question at bar was if the 2nd applied to the States via the 14th. Under Cruikshank, the Supreme Court ruled that it does not. The Court held that the 2nd only constrained the national government, not the States, and of the national government, only Congress. [...] > >ten years later in Presser v. > >Illinois, 116 U.S. 252 (1886). > > > >"The provision in the Second Amendment to the Constitution, > that 'the > >right of the people to keep and bear arms shall not be > infringed,' is a > >limitation only on the power of Congress and the national > government, > >and not of the States. > > Again, Presser says the 2nd amendment restricts the president > from such an > executive order, yes? Under Presser, such an executive order by the President would likely be considered unconstitutional. FYI, the Supreme Court has since revisited, and overturned itself, in just about every aspect of Cruikshank, *except* that the 14th does not extend the 2nd to the States. Which was the issue that Steve Schear inquired about and to which I responded with my post. --Lucky
RE: 2 Challenge Gun Cases, Citing Bush Policy
And in 1908 in Twining, the USSC found that the 5th amendment was similarly a limitation upon the national government, not the state governments, i.e., the states are not required by the fifth amendment to abstain from requiring a defendant to incriminate himself in testimony. But the first 8 amendments have been progressively extended to the states by application of the 14th amendment. For example, the fifth circuit, just eight months ago, finds the invididual model prevails not only over the national government, but also the states, and it declares that Cruikshank fails to "establish any principle governing any of the issues.." regarding the 14th amendment's extension of the Bill of Rights to limit the power of the states. "13. In United States v. Cruikshank, 23 L.Ed. 588 (1875), the Court held that the Second Amendment "is one of the amendments that has no other effect than to restrict the powers of the National Government." Id. at 592. In Presser v. Illinois, 6 S.Ct. 580, 584 (1886), the Court, reaffirming Cruikshank and citing Barron v. Baltimore, 8 L.Ed. 672 (1833), held that the Second "amendment is a limitation only upon the power of congress and the national government, and not upon that of the state." And, in Miller v. Texas, 14 S.Ct. 874 (1894), the Court held, with respect to "the second and fourth amendments" that "the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts," citing Barron v. Baltimore and Cruikshank. As these holdings all came well before the Supreme Court began the process of incorporating certain provisions of the first eight amendments into the Due Process Clause of the Fourteenth Amendment, and as they ultimately rest on a rationale equally applicable to all those amendments, none of them establishes any principle governing any of the issues now before us." http://laws.lp.findlaw.com/5th/9910331cr0.html
RE: 2 Challenge Gun Cases, Citing Bush Policy
At 07:17 PM 6/2/02, Lucky Green wrote: >In United States v. Cruikshank, 92 U.S. 542 (1876), the Supreme Court >held that: > >... > >"The right to bear arms is not granted by the Constitution; neither is >it in any manner dependent upon that instrument for its existence. The >second amendment means no more than that it shall not be infringed by >Congress, and has no other effect than to restrict the powers of the >national government." > > the 2nd Amendment solely >constrains Congress from infringing upon the right to keep and bear arms >while leaving the Executive free to infringe upon this right, or deny >its exercise entirely, at will. The Executive is part of the "national government" that Cruikshank says is restricted by the 2nd amendment, yes? >Under Cruikshank, Congress may not pass a bill infringing on the right >of the citizens to keep and bear arms, but a Presidential Executive >Order that all private citizens are to turn in their guns tomorrow >passes Constitutional muster. Then Cruikshank didn't mean to include the President as part of the "national government" that it found to be restricted by the 2nd amendment? >ten years later in Presser v. >Illinois, 116 U.S. 252 (1886). > >"The provision in the Second Amendment to the Constitution, that 'the >right of the people to keep and bear arms shall not be infringed,' is a >limitation only on the power of Congress and the national government, >and not of the States. Again, Presser says the 2nd amendment restricts the president from such an executive order, yes?
RE: 2 Challenge Gun Cases, Citing Bush Policy
Steve Schear wrote: > I think whether the 2nd is enforceable against states and > municipalities > will depend upon the SC deciding to apply the 14th Amendment. > The Supreme > Court has long held that the 14th Amendment does not make all > of the Bill > of Rights applicable to the States. Only those rights the > Court finds to be > "fundamental" apply. To this day, several portions of the > Bill of Rights, > including the right to indictment by grand jury, to a jury > trial in any > common-law suit over $20, and to the rules of the common law > in judicial > review of jury fact-finding, have not been held to be > fundamental and to > this day are not applicable to the states. Steve is correct that the question if the 2nd Amendment imposes limits on the ability of the States to regulate arms closely relates to whether the Supreme Court holds that the 14th Amendment extends 2nd Amendment's reach to the States. However, the answer to this question is not one that will need to be decided in the future. It has been decided over 125 years ago in one of the first test cases of the then new 14th Amendment In United States v. Cruikshank, 92 U.S. 542 (1876), the Supreme Court held that: "The government of the United States, although it is, within the scope of its powers, supreme and beyond the States, can neither grant nor secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction. All that cannot be so granted or secured are left to the exclusive protection of the States." "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The second amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government." As you can see by reading the entire case, the Court held not only that the 14th Amendment does not extend the 2nd Amendment to the States, but also held that the States are free to regulate firearms at their leisure, in effect, the Court held that the 2nd Amendment solely constrains Congress from infringing upon the right to keep and bear arms while leaving the Executive free to infringe upon this right, or deny its exercise entirely, at will. In their ruling, the Supreme Court of course utterly ignored the legislative history of the 14th Amendment that shows that the 14th Amendment was put in place precisely to ensure, amongst other civil rights, that the newly freed blacks would be able to arm themselves as a protection from their militarily beaten, but no less racist, white neighbors. Under Cruikshank, Congress may not pass a bill infringing on the right of the citizens to keep and bear arms, but a Presidential Executive Order that all private citizens are to turn in their guns tomorrow passes Constitutional muster. The Supreme Court slightly soften their contention that the 2nd Amendment was not worth the parchment it is written on (at least when it comes to, horrors, blacks with guns) ten years later in Presser v. Illinois, 116 U.S. 252 (1886). "The provision in the Second Amendment to the Constitution, that 'the right of the people to keep and bear arms shall not be infringed,' is a limitation only on the power of Congress and the national government, and not of the States. But in view of the fact that all citizens capable of bearing arms constitute the reserved military force of the national government as well as in view of its general powers, the States cannot prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security." Unfortunately, while at first glance being rather favorable to the right to keep and bear arms, Court in Presser did not overturn the Court's earlier determination in Cruikshank that the 14th Amendment does not extend the 2nd Amendment to the States. While the Court has in the well over 100 years that have since passed extended virtually the entire Bill of Rights to the States via the 14th Amendment, it has failed to so with the 2nd Amendment. The decision in Cruikshank that the 14th Amendment does not extend the 2nd Amendment to the States stands has not only been made by the Supreme Court, the decision stands to this day. --Lucky (IANAL)
Re: 2 Challenge Gun Cases, Citing Bush Policy
At 07:36 PM 6/1/2002 -0400, Ed Stone wrote: >At 07:36 PM 5/31/02, you wrote: >>http://www.nytimes.com/2002/05/31/politics/31GUNS.html >> >>WASHINGTON, May 30 Two men charged with carrying pistols without a >>license in the District of Columbia have invoked the Bush >>administration's position on guns to seek the dismissal of their cases. >> >>Reversing decades of Justice Department policy, the Bush administration >>told the Supreme Court this month that it believes the Second Amendment >>protects an individual's right to possess firearms. >> >>Lawyers for the two men, Michael Freeman and Manuel Brown, say the >>position is inconsistent with a ruling in the United States Court of >>Appeals for the District of Columbia Circuit. >> >>Today, the Justice Department urged the continued prosecution of the men. >>The controlling precedent upholds the city's firearm statutes, "even >>though it contains reasoning that is inconsistent with the position of >>the United States," the department said in court papers > >Looks like it is the position of the Department of Justice of the United >States of America that the 2nd Amendment to the Constitution conveys >rights, as against potential Government powers to the contrary, for an >Individual not in the military to keep and bear arms, albeit subject to >reasonable regulation thereof. > >The Justice Department's urging of continued prosecution of the men looks >like DOJ views a blanket proscription of an individual's possessing or >bearing a firearm to be a reasonable regulation of firearms. > >Assuming that the current position of the DOJ is that it believes the >Second Amendment protects an individual's right to possess firearms, then >if a municipality can prevail in requiring that only police officers may >posses guns, and pass Constitutional muster, can that municipality prevail >in requiring that only police officers may enjoy free speech? Or petition >the Government for redress of grievances? Or refuse to testify against >themselves? Why not? > >Cases in which the United States Governmnent has found an individual's >rights found in the United States Constitution essentially voidable by a >city council are rare, I hope? Unusual? So pre-9/11 I think whether the 2nd is enforceable against states and municipalities will depend upon the SC deciding to apply the 14th Amendment. The Supreme Court has long held that the 14th Amendment does not make all of the Bill of Rights applicable to the States. Only those rights the Court finds to be "fundamental" apply. To this day, several portions of the Bill of Rights, including the right to indictment by grand jury, to a jury trial in any common-law suit over $20, and to the rules of the common law in judicial review of jury fact-finding, have not been held to be fundamental and to this day are not applicable to the states. Is the right to keep and bear arms a fundamental right? Obviously the NRA would argue that it is. But the Supreme Court would be well within precedent if it were to hold that given modern conditions, a right to keep and bear arms, like a right to a jury trial for a 20-dollar dispute, can no longer be said to be so implicit in the concept of ordered liberty as to be fundamental. If it so held, the 2nd Amendment would remain applicable to the Federal Government, but would not apply to the States, which would be free to use their militia regulatory powers to regulate guns as they see fit. steve
Re: 2 Challenge Gun Cases, Citing Bush Policy
>and being able to kill each and every one from behind. >Don't expose yourselves -- always shoot from behind. But know this one thing Aim for the head, and use fragmenting/hydrashock ammo. Exploded heads seem to disturb others the most.
Re: 2 Challenge Gun Cases, Citing Bush Policy
Is there any other possible interpretation other than that we have no other choice than to take up arms against the police, the FBI, or any other TLA, that seeks to deprive us of our rights? Ask yourselves -- what would Jefferson or Washington do at this moment? Ask yourselves -- what is your personal responsibility? For myself -- I can think of nothing personaly more fulfiliing than to come upon a cop or a SWAT team arresting someone for drug or gun violation, and being able to kill each and every one from behind. Don't expose yourselves -- always shoot from behind. But know this one thing -- you are morally upright, and the more cops you kill, the more holy you are!
Re: 2 Challenge Gun Cases, Citing Bush Policy
At 07:36 PM 5/31/02, you wrote: >http://www.nytimes.com/2002/05/31/politics/31GUNS.html > >WASHINGTON, May 30 Two men charged with carrying pistols without a license >in the District of Columbia have invoked the Bush administration's >position on guns to seek the dismissal of their cases. > >Reversing decades of Justice Department policy, the Bush administration >told the Supreme Court this month that it believes the Second Amendment >protects an individual's right to possess firearms. > >Lawyers for the two men, Michael Freeman and Manuel Brown, say the >position is inconsistent with a ruling in the United States Court of >Appeals for the District of Columbia Circuit. > >Today, the Justice Department urged the continued prosecution of the men. >The controlling precedent upholds the city's firearm statutes, "even >though it contains reasoning that is inconsistent with the position of the >United States," the department said in court papers Looks like it is the position of the Department of Justice of the United States of America that the 2nd Amendment to the Constitution conveys rights, as against potential Government powers to the contrary, for an Individual not in the military to keep and bear arms, albeit subject to reasonable regulation thereof. The Justice Department's urging of continued prosecution of the men looks like DOJ views a blanket proscription of an individual's possessing or bearing a firearm to be a reasonable regulation of firearms. Assuming that the current position of the DOJ is that it believes the Second Amendment protects an individual's right to possess firearms, then if a municipality can prevail in requiring that only police officers may posses guns, and pass Constitutional muster, can that municipality prevail in requiring that only police officers may enjoy free speech? Or petition the Government for redress of grievances? Or refuse to testify against themselves? Why not? Cases in which the United States Governmnent has found an individual's rights found in the United States Constitution essentially voidable by a city council are rare, I hope? Unusual? So pre-9/11?
2 Challenge Gun Cases, Citing Bush Policy
http://www.nytimes.com/2002/05/31/politics/31GUNS.html WASHINGTON, May 30 Two men charged with carrying pistols without a license in the District of Columbia have invoked the Bush administration's position on guns to seek the dismissal of their cases. Reversing decades of Justice Department policy, the Bush administration told the Supreme Court this month that it believes the Second Amendment protects an individual's right to possess firearms. Lawyers for the two men, Michael Freeman and Manuel Brown, say the position is inconsistent with a ruling in the United States Court of Appeals for the District of Columbia Circuit. Today, the Justice Department urged the continued prosecution of the men. The controlling precedent upholds the city's firearm statutes, "even though it contains reasoning that is inconsistent with the position of the United States," the department said in court papers [What bullshit! Do not pay any attention to the man behind the curtain.] Hush provide the worlds most secure, easy to use online applications - which solution is right for you? HushMail Secure Email http://www.hushmail.com/ HushDrive Secure Online Storage http://www.hushmail.com/hushdrive/ Hush Business - security for your Business http://www.hush.com/ Hush Enterprise - Secure Solutions for your Enterprise http://www.hush.com/ Looking for a good deal on a domain name? http://www.hush.com/partners/offers.cgi?id=domainpeople