JS-Kit/Echo comments for article at http://smallestminority.blogspot.com/2007/09/parker-goes-to-scotus.html (16 comments)

  Tentative mapping of comments to original article, corrections solicited.

jsid-1188998675-579650  Matt at Wed, 05 Sep 2007 13:24:35 +0000


Aren't situations like Heller exactly the reason the Supreme Court needs to rule? Just because it might and likely will be difficult doesn't mean it isn't necessary. So instead of doing the right thing, making the ruling and living with the consequences, the Court will avoid the whole issue out of fear of what might happen?!?

A Court ruling is necessary either way. Their failure to hear any 2A case for over 70 years isn't our fault. The fact that it is so significant and important almost demands they grant cert and rule. Of course, we the People can't force them to do so but I think the People want a ruling no matter which way it goes. I do.

I want the ruling because once we can define the boundaries of the 2A, good or bad, they we can define how the Right will apply in common American life with whatever protections or lack thereof it covers. This is important. Yes, we have a mindset in this country deep down that the 2A grants an individual right to bear arms but we would like confirmation. And if we don't get it, then perhaps that will start a very important debate in this country and perhaps wake folks up and cause them to stand up and do their duty as citizens. The outcome of this debate might do more to light a fire under the apathetic and disinterested with regard to civics unlike anything we've ever seen. That would be a good thing.

And if the ruling went really bad for us (collective right, militia service, no individual right, "reasonable" restrictions, etc), that sets limits too. We may lose a battle but win the war. If the Court dumps the issue off onto the States in such terms, we may well see legislative solutions to preserve an eviscerated Right. Or the rise of State militia rosters at the demand of their citizens in order to preserve a Right lost. It would be awkward, there would be problems but in the end we might wind up more free in the long run. A true "armed citizenry" and motivated to be such and bearing true military arms bought and paid for from their own pocket and trained by the State. If that is the limitation I must endure under to bear individual arms, it might be worth it given the pause it will give our Government. Not what the average person may think about what their 2A rights mean but it may be the outcome.

And it could be worse than that. A lot worse. I think it could divide the Republic and force a great deal of introspection and debate as to the nature of American and our duties and responsibilities as its citizens. It would be unpleasant to watch, lots of gnashing of teeth and wailing, but it would be necessary.

I don't care about the short term impacts on the political arena. I care about seeing where the battle lines are going to be drawn for the next generation. For my children and grandchildren. To know whether I need to bury an AK in the backyard I hope they'll never need or whether the lines will be demarcated for us and we can find a proper equilibrium with regard to our 2A rights that have been ignored or twisted out of all recognition from the intent of the Founding Fathers for far too long.

jsid-1189000309-579652  Kevin Baker at Wed, 05 Sep 2007 13:51:49 +0000


Everything you say is correct.

I still think they'll deny cert.

jsid-1189007699-579658  Kevin S. at Wed, 05 Sep 2007 15:54:59 +0000

How soon can we expect to hear one way or the other?

jsid-1189008430-579661  Kevin Baker at Wed, 05 Sep 2007 16:07:10 +0000

Early October, I believe.

jsid-1189018698-579669  ben at Wed, 05 Sep 2007 18:58:18 +0000

The only reason to deny cert is that they are a bunch of gutless pansies. Which is what you're saying anyway, isn't it Kevin?

jsid-1189018718-579670  Ed at Wed, 05 Sep 2007 18:58:38 +0000

I understand the arguments in regards to the merits of the case, but...

On what basis would they grant or deny cert?

jsid-1189019038-579673  Kevin Baker at Wed, 05 Sep 2007 19:03:58 +0000

That's the beauty of it, Ed. They don't have to give a reason to deny cert. One merit for granting it is the circuit split between the D.C./5th circuit individual interpretation, and the collective interpretation of the 9th and most other Circuit courts.


It's worked for them for the last seventy years. Why change tactics now? Congress can do it with entitlement spending, SCOTUS can do it with the Right to Arms.

jsid-1189019876-579674  ben at Wed, 05 Sep 2007 19:17:56 +0000

Here's the thing: shouldn't they be DYING to grant cert so they can address this issue? Isn't this one of those rare situations that a Supreme Court Justice lives for? Seems to me they'd walk over dead bodies to be able to decide something as important as this. What gives?

It's like someone offering me the job of designing the flight control systems for the F22. Not only could I not turn it down, but I'd face starving lions for the job.

jsid-1189022179-579678  Ed at Wed, 05 Sep 2007 19:56:19 +0000

The ramifications are HUGE for a ruling either way. There is little room to "thread the needle" if they try to keep the scope limited. I don't see how they can avoid the issue of the applicability of the 14th to the 2nd amendment for instance.

The only way to maintain the (unhappy) status quo is deny cert. I'd be suprised if the court grew enough balls to take it. (I'd love to know what kinds of pressure are exerted behind the scenes - yes, I know that judges are supposed to be above all that!)

jsid-1189022507-579679  Kevin Baker at Wed, 05 Sep 2007 20:01:47 +0000


They can avoid applicability of the 14th to the 2nd because, as Judge Henderson pointed out, D.C. isn't a State. It's a federal district. The 14th was not raised in the original suit and thus is not at question. No State law is involved - federal only.


Normally I'd agree with you, but how else can you explain the denial of cert. for all gun-rights related cases since 1939? Emerson? Stewart? (Just to name a couple?)

jsid-1189024083-579682  Paul from Texas at Wed, 05 Sep 2007 20:28:03 +0000

Matt-one nit to pick: the 2nd **grants** nothing, it protects a pre-existing right of individuals (i.e. "the People") against government infringment.

On the issue of the 14th needing to be incorporated to apply the 2nd to the states: Why? Neither "the states" nor "the government" is mentioned in the text. It simply says "...shall not be infringed." The authors were certainly capable of writing in those limiting words, as they did elsewhere in the Constitution and the BOR, so they MUST have meant to leave them out.

Regarding Cert.: Let's say it is denied. OK, this still means that there can be no ban on entire classes of arms (specifically, post-1976 handgun transfers to civilians). Guess what: the fed.gov lives in DC. It has a law, in Title 18, Section 922(o), that prohibits post-1986 transfers of full auto guns to civilians. Sound familiar, REAL familiar? I think that this means that some DC resident could file a Form 4 (I think that's the form) for an M-16 or an M-4 (current issue weapons for our individual soldiers, a nice tie-in to the "Miller" case), wait to be denied, and then file suit in DC. Precedent would be on his/her side, wouldn't it?

jsid-1189025169-579683  Paul from Texas at Wed, 05 Sep 2007 20:46:09 +0000

Ed said:

"They can avoid applicability of the 14th to the 2nd because, as Judge Henderson pointed out, D.C. isn't a State. It's a federal district. The 14th was not raised in the original suit and thus is not at question. No State law is involved - federal only."

Can DC establish the Church of the District of Columbia and require every resident to join, pray at particular times and contribute funds to the Church? After all, the 1st Amendment can't be applied to DC since it isn't a state, right?

jsid-1189026363-579684  Kevin Baker at Wed, 05 Sep 2007 21:06:03 +0000


Where did you study law? And the quote you take in your second comment is mine, not Ed's.

The 14th needs to be applied to the 2nd because of two previous Supreme Court cases, U.S. v. Cruikshank and Presser v. Illinois wherein it was decided by that august body that the Second Amendment only protected citizens against FEDERAL infringement (which D.C.'s gun ban is) and not against STATE infringement (which almost all state, county, and municipal gun laws are.)

It's settled law. Precedent. That needs to be overturned.

As to your question, "Can DC establish the Church of the District of Columbia and require every resident to join, pray at particular times and contribute funds to the Church? After all, the 1st Amendment can't be applied to DC since it isn't a state, right?" - that was essentially the argument that Judge Henderson made in her dissent in Parker, though I think afterward she realzed it, which is why she voted against hearing an en banc appeal.

And in answer, specifically, to that question, the First Amendment begins "Congress shall make no law...." The District of Columbia is under direct control of Congress, so the answer is "No." Had the First Amendment not been "incorporated" under the 14th against state infringement, the answer would still be "No," but the answer for, say, North Carolina might be "yes." That's essentially what Cruikshank said about the Second.

jsid-1189029683-579687  Paul from Texas at Wed, 05 Sep 2007 22:01:23 +0000


OK, I'll agree that Cruikshank says that the 14th doesn't apply to the states (it really says that the BOR doesn't, but the 14th had already been ratified by then). Take a look at http://www.guncite.com/gc2ndsup.html

This is Guncite's summary analysis (more appears below the summary on the site) of Cruikshank and Presser:

"U.S. v. Cruikshank involved members of the Ku Klux Klan depriving black victims of their basic rights such as freedom of assembly and to bear arms. The court decided that neither the First nor Second Amendments applied to the states, but were limitations on Congress. Thus the federal government had no power to correct these violations, rather the citizens had to rely on the police power of the states for their protection from private individuals.

This case is often misunderstood or quoted out of context by claiming Cruikshank held the Second Amendment does not grant a right to keep and bear arms. However, the court also said this about the First Amendment. The court explained that these rights weren't granted or created by the Constitution, they existed prior to the Constitution.

Presser v. Illinois ruled that the states had the right to strictly regulate private military groups and associations. It also reaffirmed the Cruikshank decision that the Second Amendment acts as a limitation upon the federal government and not the states. However Presser also stated that setting the Second Amendment aside, the states could not prohibit the "people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security..." "

Cruikshank may have eliminated the applicability of the BOR (sp. the 2nd) to the states, but 2 things about that: 1) this is a 19th century case that was decided pre-civil rights and pre-14th Amendment incorporation. It would almost certainly be decided the other way now. 2) It says that the 2nd is a pre-existing right.

Presser, which relied upon Cruikshank, states that the states cannot limit the RKBA, since this would deprive the Feds of resources to protect, etc. (i.e. it would render the militia a useless fiction).

I don't think that these cases would be difficult to overturn, not in view of either a Cert.-denied Heller, or a win in the Supreme Court - which would necessarily mean that the Court ruled that the 2nd protects individual rights.

As an aside, can you see the reaction if the Court says, "Yeah, well, because of this pre-civil rights, late 19th Century case (Cruikshank) which denied blacks the protections of the 1st and 2nd Amendments, even when the 14th had already been ratified, we are denying people in the US their RKBA?" Me, I don't see that flying - I can see GOA running ads and creating YouTube pieces targetted at black audiences, saying that gun control = Jim Crow. That'd make for some incredibly delicious ironies.

Oh, BTW, I'm no trial lawyer or Constitutional expert. I write wills, trusts, etc. and form businesses for my clients. However, the Constitution is not the sole province of lawyers and judges - it is a document in which We The People created the government. Average members of We The People should be able to interpret the document without legal counsel - and the 2nd is worded very clearly under the rules, law, history and culture of the late 18th century.

Regarding the Church of DC - yeah, I know that such is the logical outcome of Henderson's idiotic opinion, even if DC is ultimately ruled by Congress. Maybe I should have picked a better Amendment as an example, say the 8th. Can a DC court, or a North Carolina court, execute someone for jaywalking (and nothing else)? The 8th makes no mention of Congress. Again, it illustrates the absurdity of saying that this part of the BOR doesn't apply to DC, when other portions of it so clearly do - after all, citizens of DC are citizens of the US as well. That's the whole reason for the ratification of the 14th.

jsid-1189037608-579690  Kevin Baker at Thu, 06 Sep 2007 00:13:28 +0000


That's a succinct explanation of the problems with Cruikshank and Presser. I am no lawyer of any type, but since I started studying the topic of the right to arms and the rest of the Bill of Rights about 1995, I have read enough opinions and legal analysis to make me want to gouge my eyes out.

The problem is that the Supreme Court is made of not of logical robots, but of illogical humans. Logical robots could fairly and consistently apply the law. Humans cannot. We have example after example of this in judicial history. In Dred Scott the court said that blacks - free or not - could not be citizens because if they were recognized as citizens they would enjoy all the "privileges and immunities" of all other citizens, among which was the right to "keep and carry arms" wherever they went. The 13th Amendment made blacks citizens, and the 14th Amendment promised them the "privileges or immunities" that all other citizens enjoyed.

So the Cruikshank decision vacated that, and Presser backed it up.

And to date, neither decision has been overturned.

If SCOTUS does grant cert., I expect them to rule as absolutely narrowly as possible in order to minimize the outrage. But there will be outrage. And because this case is about the right to arms, not "separate but equal," not the availability of abortion, but the right of individual citizens to possess the tools of resistance, I really don't expect much out of the Court.

Read my "The Courts Will Not Save Us" series linked on the left sidebar of this blog.

jsid-1189089938-579720  Stephen Rider at Thu, 06 Sep 2007 14:45:38 +0000

I was kind of partial to this quote:

"Considering that Americans' plenary right to own items of personal property has never been questioned, the fact that guns are explicitly protected by the constitutional text makes the prohibitionist case here harder than, say, if the government were to ban automobiles or toaster ovens."

 Note: All avatars and any images or other media embedded in comments were hosted on the JS-Kit website and have been lost; references to haloscan comments have been partially automatically remapped, but accuracy is not guaranteed and corrections are solicited.
 If you notice any problems with this page or wish to have your home page link updated, please contact John Hardin <jhardin@impsec.org>