Well, folks, here we are again. We've been cut off at "Reasonable Regulation Pass" for the umpteenth time. Read the story here and tell me again what a great deal the Heller case was. The "law," people, is what THEY say it is. Get it?!?
DC tightens gun rules after landmark court ruling
WASHINGTON (AP) -- The District of Columbia Council passed more regulations for gun owners Tuesday, months after the U.S. Supreme Court struck down the city's 32-year-old handgun ban.
Among other things, the bill requires gun owners to register their weapons every three years and receive training by a certified firearms instructor.
"This bill will be, I think, one of the most progressive registration laws in the country," Council member Phil Mendelson said.
The National Rifle Association accused the city of forcing residents to jump through unnecessary hurdles, thereby undermining the intent of the Supreme Court's ruling in June that affirmed the right of Americans to keep guns in the home for self defense.
"The D.C. Council continues to try to make it harder and harder for law-abiding citizens to access this freedom," NRA Executive Vice President Wayne LaPierre said.
In September, the House passed an NRA-backed bill that would have essentially stripped the city of its ability to regulate firearms, but the measure died in the Senate.
D.C. leaders say they are trying to be respectful of the Supreme Court case while doing everything they can to enact strict gun control measures in a city where gun violence is common.
"No constitutional right is absolute, nor is this right to possess a gun in the home for self defense," said councilwoman Mary Cheh, a law professor at George Washington University.
Since the handgun ban was overturned, the council has passed legislation allowing residents to own most semiautomatic pistols while banning magazines capable of firing more than 10 rounds. Registration also is limited to one pistol a month, and gun owners face prosecution if they fail to keep loaded weapons away from children.
Tuesday's bill builds on those regulations. It requires gun owners to spend at least one hour at the firing range and four hours in the classroom with an instructor before registration. The bill also requires a criminal background check for gun owners every six years.
"No Constitutional right is absolute..."
Jon Roland of Constitution.org provides this comment to me via email:
Actually, the training and background check requirements are not unreasonable, provided they are required of every able-bodied person and not just as a requirement for possessing a firearm, and that they be provided at no cost to the person (other than general taxation). Militia training is for everyone, and part of the requirement for militia training should be that every able-bodied person be required to have a firearm. It is reasonable to require everyone to pay for his own weapon if he or she can afford it, and provided at a subsidized price if not.
The background check is tricky, because it should be checking only for court-ordered disablements, not things that have not been the result of judicial due process in which the defendant has the right to a jury verdict. If someone is a danger to himself or others, it is appropriate for someone to go to a court of competent jurisdiction and prove that to a jury, but not leave the issue to be decided by some administrative agent. It is an unconstitutional violation of the prohibitions of bills of attainder to treat one right as disabled because another right was disabled in a due process proceeding, and the need to disable the first right never argued or proved. See Public Safety or Bills of Attainder?, University of West Los Angeles Law Review, Vol. 34, 2002.
Keeping firearms away from children is not reasonable if that is interpreted as impeding the militia training of children, the training of whom should begin as soon as they are capable of aiming and firing a weapon.
Laws have to be for everyone, not just firearm owners. And the militia training is not complete unless or until the citizens are also organized into effective militia units and trained in defense, law enforcement, crowd control, and disaster response. It is unconstitutional to fail to do that, or to do it only for selected individuals or groups, even voluntarily self-selected groups.
Now we need to pressure or sue the DC Council to the above effect.
My good friend John Russell provides this comment via email:
What a grand victory Heller was. First the plaintiff demonstrated in his pleadings that he was only concerned with his own narrow issue and couldn't care less about the second ammendment. His attorney couldn't concede quickly enough that the government was right in restricting the ownership of firearms. As far as the NRA's complaint about the city ignoring the law, to hell with the NRA. The NRA was founded to teach the North's urban youth how to shoot, not to secure the second ammendment. Today's NRA is in the business of selling magazine subscriptions. There has never been a federal gun passed without the NRA's backing. As far as Wayne LaPierre is concerned. This is the same punk who threatened to quit the organization if they failed to back insta-check, you know the montrous federal intrusion into the lives of honest men that by the government's own addmission has had zero effect on crime.
Mike, as you are well aware, when professional jobholders use the word "progressive," it is one of the few times they mean exactly what they say. From the Merriam-Webster Collegiate Dictionary: 4a increasing in extent or severity.
No constitutional right is absolute eh?
How about taking away all of the Bill of Rights. The Bill of Rights is a PACKAGE DEAL. You take away one right, you might as well take away all.
As far as the NRA goes: I rather support a real, committed gun lobby, like JPFO or GOA. I heard that the NRA helped pass the Gun Control Act of 1935 (BARF)
The one significant fact of Heller was that it affirmed an common law individual right to armed self defence. True, I couldn't figure out how they were going to avoid doing that but were sure they would but, fact is, there was no way by anything resembling logic that they could have avoided that conclusion.
The devil is in the details though. It's why Scalia bent over backwards to invalidate Miller. Is it just me that thinks Miller should be defended because that, in the light of the arguments raised by Heller, would be what logically drives a coach and horses through Federal `gun control.' If Miller's attorney had bothered to argue, the court would have had to admit that a short-barrel shot gun is a weapon suitable for militia use - they're used as door breaching weapons nowadays anyway so even if they weren't then they certainly are now. Certainly, a new AWB couldn't possibly pass muster according to the logic of `weapons in common use' used in Miller - whether you're talking about foreign battlefields and M16s or `at home on the range' and AR15s the EBR is a weapon `in common use.'
As anonymous said, "No Constitutional right is absolute..."
I still think it is too bad that there is no law making it a crime for elected officials to violate the Constitution. If there were, not one single elected official, with the exception of possibly Ron Paul, could pass the background check. Therefore none of them could own a firearm.
Like I said, too bad...
Wow. Some points on law:
1. No Constitutional right is absolute. Felons can't vote. Speech is subject to strict scrutiny (a compelling state interest and the statute being no broader than necessary to achieve that interest) at best, and often less. You can't have a B-52 full of atomic bombs. Your natural rights may in some sense be absolute, but your constitutional rights aren't.
2. One thing about our legal system is that the only part of Heller that really counts is the part where it was held that the Second Amendment is an individual right. Anyone, including Heller's attorney, Alan Gura, is perfectly free to argue that everyone should have machine guns in a future case and will be taken seriously by whatever judge is sitting. Heller is grand because it lays a foundation, not because it's the end-all, be-all of RKBA protection.
Qi Ji Guang
You are correct, the Continental Congress voted on each Article of the Bill of Rights to decide which to present to the States for Ratification: it was shipped out as an "All or nothing" deal. Each State Ratified the "Bill of Rights' as 'an' Amendment to the Constitution, yet, We, the States and the Federal Government persist in 'calling' the Articles of the "Bill of Rights," the 'First Amendment' of the "First Amendment" to the "Articles of Conferation of the united States of America" (the Constitution) Amendments 1 through 10: the actual Second Amendment to the Constitution is labeled Amendment XI (eleven).
That sounds complicated, but, it is the reason that the "Articles of Confederation of the united States of America" have never been repealed or rescinded: you can't have a Washington Monument without a Foundation. It is 'the' document that grants legal power and status to the "Constitution."
I disagree with Antonin Scalia on most 'howevers' in his decision: throwing away of a decision that never was, "US vs Miller;" reasonable infringements; their decision not to consider the "14th Amendment" as it relates to States Rights and Powers, etc. The only thing (I believe) they got right is that Article II of the "Bill of Rights" is an 'Individual Right of the People' as individuals, "en personna propria," (that ...personal belief based on research... cannot be infringed by any law, rule, regulation, policy, procedure or Paper Shield, whether State or Federal).
One is allowed to be pragmatic, but, more than likely it'll splash in your face when it hits the fan.
The right of self-defense is a corollary to the right to life; to deny one is to deny the other. The purpose of government is to insure our rights, not to infringe on them.
Our constitution states that the right of the people to keep (possess) and bear (carry) arms shall not be infringed. Marbury v. Madison (1803) decided that the Constitution is the supreme law of the land, and that any law that contradicts the Constitution is null and void.
"The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed ... An unconstitutional law is void." (16 American Jurisprudence 2d, Sec. 178)
In Murdock v. Pennsylvania (1943) the Supreme Court stated that a constitutionally-protected right may not be licensed, nor a fee charged. The Right to Keep and Bear Arms is one of those protected natural rights.
In Shuttlesworth v. Birmingham, Alabama (1962) the Supreme Court decided that “If the state does convert a liberty into a privilege, the citizen can engage in the right with impunity.” (That means they can't punish you, folks!)
To paraphrase an oft-quoted movie line, "Permits? We don' need no steenking permits!"
"The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the high powers" delegated directly to the citizen, and `is excepted out of the general powers of government.' A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power." - Cockrum v. State, 24 Tex. 394, at 401-402 (1859)
One gets the impression, from reading this thread, that the militia has been and is in a permanent state of activation, but that service is also mandatory.
Upon the inclusion of the novel and unexpected hypothesis put forth in the infamous case from the 1930s, one could also conclude that all other powers are held by government by default, and that it need only choose the one that fits to reach its goal.
A felon certainly may vote, depending on the state in which the he resides. You have free speech, but that does not imply immunity from the consequences. And you certainly can own a B-52 full of atomic bombs (provided you can afford it), the same as you may own tanks and cannons. The government has to possess the power to make it contraband first, then the legislature has to make law punish the possession of the contraband.
"The "law," people, is what THEY say it is. Get it?!?".
If that's indeed the case, then why do you bother with advocacy?
Because it really ISN'T.
Although most people would like very much for it to be that way,(as long as they approved of the laws being made).
But when you accept what you postulated above as Gospel, then you've really lost, You then have a "slave mentality" and have condemned yourself to living under a tyranny.
"D.C. leaders say they are trying to be respectful of the Supreme Court case while doing everything they can to enact strict gun control measures in a city where gun violence is common."
I think this is a WONDERFUL development.
Let the District pile the cadavers of innocents even higher in the name, now, of "reasonableness" and "common sense".
Just like they piled 'em high in the name of their LAST orthodoxy.
And sooner or later, the stench overcomes their Statist bleating...again.
What you need to understand is that these politicians, steeped as they are in the DC Democratic Machine, DON'T KNOW ANY BETTER.
The idea that More Guns equals Less Crime simply has no "socket" in their minds where it can plug in.
So they react in essentially the same manner as they've always done.
Look, this is their legal smokescreen to cover their retreat from their earlier decades-long hardline position. And we should all recognize it for what it is.
I'd offer the legislative initiatives launched by the anti-abortion folks since Roe v. Wade as a parallel.
For all the efforts, they've changed essentially nothing...and this on a "Right to Privacy" derived from the 9th and 10th Amendments, not an affirmatively stated right the subject of it's own Amendment, as the RTKBA is.
If the legislation is meant to be a de facto prohibition, then it won't withstand the legal challenges...as long as someone has the stones and the money to challenge it.
"You then have a "slave mentality" and have condemned yourself to living under a tyranny."
The "slave mentality" is that you obey because its the "law." To recognize that we have moved into a period where the law and the Constitution are at variance is merely common sense.
Explain please to David Olofson how the law hasn't failed him. Explain how unanswered, unsupervised, unpunished ATF misconduct as in his case and a hundred other cases does not trump Heller and any other court decision.
How can you predict whether or not a confiscationist law will meet legal scurtiny if you cannot predict what the court will look like by the time the case reaches there. And if we have to wait until then, and confiscation is already an established fact, what then will we do when we discovered we've been "legally" snookered once more? Our property is GONE, our liberty is once again diminished, as is our ability to reclaim it. At what point do we quit gambling upon black robes getting up on the right side of the constitutional bed?
"To recognize that we have moved into a period where the law and the Constitution are at variance is merely common sense."
Can you think of a time when the law has NOT been at variance with the Constitution?
Common sense should tell us that nearly every law impacts the Constitution in some negative way, to one degree or another.
It's better now than it has been within the past ten to fifteen years, and if you're the same Mike Vanderboegh from USENET, as I'm the same Bilgeman, you should know that this is a fact.
"Explain how unanswered, unsupervised, unpunished ATF misconduct as in his case and a hundred other cases does not trump Heller and any other court decision."
I'm not familiar with the case, but I'd offer that whatever may have befallen him, your use of the word "misconduct" to characterize ATFE's behavior would indicate that it wasn't nearly as dire as their crimes against the Weavers and the Branch Davidian children.
That's progress, VdB. They still might be a pack of ass-kissing bastards ready to throw entire families under the bus in order to attain lofty GS-14 pay grades, but they've learned that there are limits.
Little baby steps for little baby feets...
"How can you predict whether or not a confiscationist law will meet legal scurtiny if you cannot predict what the court will look like by the time the case reaches there."
You should know better than to challenge me to prove a negative.
The answer, of course,is that you cannot predict ANYTHING with certainty.
That's why the Founders spoke of that "Eternal Vigilance" thing...
But here again is the waypoint that proves how vital Heller is.
We have a fairly definitive decision in favor of the RTKBA as meaning what it says.
In a courtroom, Heller should put the hoplophobic Statists on the defensive right from the git-go, and this gives the citizen defendant a great big advantage.
Once again, I'd offer Roe v. Wade, (also a 5-4 decision), and also Brown v. Topeka,( a 9-0 shutout).
Since the Courts made those rulings, the bars thrown up to try and stem those liberties affirmed were struck down...and in a fairly short order.
I can't speak for you, but I've never fooled myself that our true opponents have always been in favor of disarming every single American,(except for themselves or their hirelings, naturally).
Heller is the nail in the coffin of their dreams.
In their own way, they will echo George Wallace in the schoolhouse door:
"Segregation Yesterday, Segregation Today, Segregation Forever!"
and, God willing, be seen as clueless and hopelessly out of touch as he is viewed today.
They're trying to salvage something from the catastrophe that is Heller.
"At what point do we quit gambling upon black robes getting up on the right side of the constitutional bed?"
Never. Unless you get a hankerin' to be a slave.
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