Post 41

In an attempt to get my mind off the horrible events earlier this month, I have been working on responding to Sir's rather lengthy piece. First of all, let me make my position on guns clear. While I wish that the only privately-owned weapons in the United States were sporting pieces and antique collectibles (I myself would love to have a Civil War-vintage Springfield or Enfield, but WAY too expensive!), I know that will never happen. I support neither a ban nor confiscation. I believe in a reasonable regimen of background checks, identification and registration, import restrictions, limits on permissible types of weapons, sales limits and an end to gun show sales. However, my primary interest is that this issue should be debated within the policy arena rather than the constitutional one.

I will take on many (not all, thank God) of Sir's points directly. For example, statutory militia definitions are IRRELEVANT in determining rights. He has grossly misstated the law, has ignored relevant authority and never answered the question addressed to him. He often tries to excuse his failings by proclaiming over and over again that he is not a lawyer. Yet, in his piece, he cites legal materials and draws legal conclusions and is therefore fairly criticized on legal grounds.

But - a few preliminaries. I address this issue wearing two hats. I am a professionally trained historian and an attorney, and those two occupations view this matter very differently. As a historian, I would be pleased to discuss the revolutionary and constitutional framework involved in crafting the Bill of Rights. We can review the works of such exponents of republican theory as Bernard Bailyn and Gordon Wood, who portray our founders as committed to the establishment of a virtuous republic (as compared to European "corruption," a term the framers used to describe factionalism and self-interest).

According to such historians of republicanism, the framers saw a standing peacetime army as an instrument of mischief and desired to rely on the militia for most demands of the "common defense." This anti-standing army sentiment is a defining aspect of the American historic and political character, as this nation has always maintained a minimal permanent force and then rapidly demobilized after every campaign until WWII/the Cold War. There also is fascinating recent scholarship suggesting that southerners, including Madison, sought constitutional protection of state militias so that the slave states could protect themselves against uprisings. I think the historical record is far from clear. Sir will cite passages from the Federalist papers and other paeans to an armed America. However, those documents tend to reflect a republican (a historical term of art that has NO party connotations) predilections for the militia rather than a desire to elevate private ownership to a constitutional level. I know that the research of Michael Bellesiles, a historian from Emory University who argued that gun ownership among colonial and early national Americans was not widespread. Without getting into a methodological debate, suffice it to say that guns were handicraft items and were VERY expensive. Note also that the British movements that prompted Paul Revere and the initial battles in April 1775 were raids on MILITIA STORES held communally.

I'm wondering what the framers would have thought of Sir's argument, because the logical flipside is that individuals and individuals only and not the states and state militias could assert 2nd Amendment objections. Hmm - individuals in 1790 would have rusty fowling pieces while the state militias would have CANNON? Given that the constitution authorizes the feds to maintain the army and the navy and to implicitly provide for the common defense, the central government would have a much stronger argument for disarming state militias rather than individuals. Check out the import of artillery in late 18th and early 19th-century warfare.

But screw that - I'm a lawyer. We have debated whether the constitution gives rights or only protects them. As a lawyer - screw that. You have one concern - will a constitutional argument keep my client out of jail? Regardless of one's theories of rights, a right only has value if it is a viable defense to a charge that the actions under a claim of right were improper. Otherwise, you spend the next few days/weeks/years in a place where you can be Bubba's bitch or everybody's bitch.

Before getting there, there are two fundamental points I must explain. One is the concept of dicta and the other is the structure of the federal judiciary.

Dicta

The term comes from the Latin "obiter dictum." It refers to a passing remark or in the law, matters not essential to the decision. Such references are not binding as precedent. While such comments may be cited to persuade, no court is bound to follow them. When the opinion is rendered by a panel of judges (such as the US Supreme Court), any statements not necessary to the REASONING or the RESULT by the author of the opinion are attributed solely to the author. Therefore, to say that the Supreme Court has held, recognized, indicated, seductively hinted at etc etc etc is DOWNRIGHT WRONG. Such remarks are attributable ONLY to the individual justice stating such.

Federal Judiciary

Sir discounts a "9th Circuit opinion." As I tried to explain to him, that case was only an example. I used the 9th Circuit because he lives there, and since Hickock, the 9th has reached the same result in at least two other cases (U.S. v. Hancock, 231 F.3d 557 (9th Cir. 2000), cert. denied, 121 S. Ct. 1641 (2001) and U.S. v. Finitz, 234 F.3d 1278 (9th Cir. 2000), cert. denied, 121 S. Ct. 833 (2001). Not only the 9th, but EVERY appellate court to approach it has reached the same result.

Perhaps I should explain the nature of the federal judiciary. The trial courts in the federal system are known as district courts. Districts are defined geographically by population. Appeals from those courts go to the Circuit Courts of Appeals. There are 11 geographical circuits, a DC Circuit (which handles governmental/regulatory appeals, etc.) and at least one specialized Federal Circuit (tax matters, etc.) Most circuit court cases are heard by 3-judge panels. Dissatisfied litigants may ask ALL the circuit judges to hear the case (called an en banc review). That happens as often as Jay and Dobber agree. If still dissatisfied, litigants can ask the US Supreme Court to review the case. The Supremes take less than 1% of the cases presented to them. SO - the decision of a U.S. Circuit Court of Appeals is the end of 99% of all litigation - i.e., IN THAT CIRCUIT, that decision is THE LAW. All circuit courts are equal and they are free to reach a different result from their sister circuits. In fact, a "split" among the circuits may prompt the Supremes to take a case but to date - there is no split.

In other words, when Sir says in response to my PIC post, quoted in full "Good morning, and a polite question. You have been presented with overwhelming evidence that the courts of this country find no individual right in the 2nd Amendment. You live in the 9th Circuit, which has been perhaps the most demonstrative of the circuits on this issue, If you raise a constitutional defense to a state or federal gun charge in a 9th Circuit court you will lose. Period. How then, as you are being taken to jail or stare up at a large fine can you claim that you were exercising a protected right?" that ``this would imply an impasse. On the one hand, most lawyers, liberal legal scholars, lower courts, and bureaucrats seem united in their conviction that U.S. citizens have no right to keep and bear arms. While, on the other hand, most Americans insist they do have such a right. Where does this leave us?" IMPASSE??? It leaves us that the United States Circuit Court of Appeals has rejected your position!! You lose, you go to jail! Quote the Federalist Papers all you want, you have, in your circuit, SETTLED LAW.

Sir: In situations where a dispute arises over the meaning of the Constitution, scholars generally turn to the writings of the framers to discern their original intent.

First of all, we left scholarship behind, this is the law.

Sir: Not only did the Framers have a clear intent in mind, but they also left an unmistakable paper trail, in the form of letters, pamphlets, and articles, stating those intentions. Any HONEST scholar, who takes the trouble to READ the available documents will come to the obvious conclusion that the 2nd Amendment is an individual right.

So therefore anyone who disagrees with you has not read the material or is DISHONEST?? And the key question - an individual right TO DO WHAT???

[Deleting much unnecessary SirCrap]

Sir then delights in cutting and pasting much of the Federalist Papers. Have at it. Please cite anywhere in ANY writing of the founders that THE SECOND AMENDMENT was intended to protect a right of PRIVATE OWNERSHIP.

Sir: I can't say this enough, when one reads for content, and does not parse every word apart, it can't be made much clearer what the 2nd Amendment means, was to be intended, and how it specifically and consistently supports rights of the individual.

Hmmm……….. evidence???

Sir: Before touting the statements made by the Supreme Court

STATEMENTS - not made by the U.S. Supreme Court, but by individual justices. DICTA. The Supreme Court has made only ONE holding of record on the 2nd, and as bad an opinion writer McReynolds is, he states one thing - that somehow and we don't know how, is it the weapon, the individual or the circumstances but there must be a connection with the militia.

ALL of the cases cited by Sir involve dicta - the 2nd was NEVER a question. Funny though how he cherrypicks (because the gun cites don't mention this case) because even though it is not a holding, the U.S. Supreme Court spoke in 1980 ON A GUN CASE:

These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 818, 83 L.Ed. 1206 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia"); United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290, n. 5 (CA7 1974); United States v. Johnson, 497 F.2d 548 (CA4 1974); Cody v. United States, 460 F.2d 34 (CA8), cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 303 (1972) (the latter three cases holding, respectively, that § 1202(a)(1), § 922(g), and § 922(a)(6) do not violate the Second Amendment).

Sir: As we delve into the "legal argument", we will bypass the lower courts, (State, District, Circuit, etc.) and focus on the ultimate arbiter of legal conclusions and interpretations, the United States Supreme Court.

What a crock. Disregard courts of record DIRECTLY ON POINT and play with dicta.

Sir: Despite liberal legal pundits claims that the current 9th Circuit Court decision states that no individual right exists, the U.S. Supreme Court has recognized it as an individual right in several cases.NEVER, NEVER, NEVER. Such an assertion is either ignorance or a lie - take your pick. Also -- it is not "a" 9th Circuit decision. It is the UNANIMOUS result of EVERY circuit court to address the question. Sir: Not only does the "Collective Rights" theory run counter to overwhelming textual and historical evidence, but the Supreme Court has NEVER held such a theory applicable to the 2nd Amendment.

That is because they have only decided ONE case on the issue. You disregard the numerous Circuit Court opinions holding such.

I will not address Sir's dicta further. I find it comical that he would cite the Dred Scott decision to support anything but…(consider the source). Sir: In closing, I answer the original question posed, with this retort, that given the overwhelming examples of Supreme Court case studies

Overwhelming evidence of dicta and nonsense!

Sir: Let me also again remind all of you, that I'm not a lawyer.

I don't think anyone needed that lil' reminder……

Does such a right of individual ownership exist? Every federal circuit to consider the question says no. My friends Domer and Carlos suggest that such a right may be found in the historical tradition and the basic constitutional scheme but that is a matter for the Supremes. Until then, Sir, all I can say is:

Kids, don't try this at home!

Sir: That would be far from the truth apparently, given the position and conclusions of the United States Supreme Court.

[rothflmfao!!!!!!!]