Today's message from 9th circuit to BHO

[Buzzard]

.....but I really feel that the Second will be upheld and "not be infringed" will prevail.

 

But, it will take awhile, and lots of money.

 

AB

It will mean absolutely NOTHING to me, if I'm in a nursing home by that time.

(I doubt institutionalised seniors will be allowed firearms in their "homes.")

[w00dc4ip]

Fed Farmer,

I don't follow your symbols, are you trying to illustrate how one trumps the other down the line?

 

And what do you mean by rights being used a bit loosely. Either something is a right or it isn't. For example the right of the people to keep and bear arms is obviously a right.

"Rights" is being used loosely because rights are entitlements.

 

States, nations, counties, cities, governments, groups, organizations, corporations, cultures, tribes, races, associations and classifications of people do not have rights. They can not have rights, only individuals can have rights.

 

"Rights" are those things to which we are entitled without precondition. For example, each human on the planet is born with the right to life. Every human is born with the right to liberty. Rights pre-exist individuals, we have them when we are born, and we have them until we die. It could be argued that we can not even give up our rights if we choose to. Only an individual can infringe on the rights of another individual. Government can't take your life or your liberty, but an individual or a group of individuals acting on behalf of the government can.

 

Governments have powers that we allow them to have in order to protect the balance of powers and rights among people.

 

What FF is saying is Civil Rights trump State Powers and State Powers trump Federal Powers.

 

It bothers me to no end when people talk about "state's" rights, "handicapped" rights, "police" rights, "gay" rights, "women's" rights, "tribal" rights, "corporate" rights, etc. People have natural rights that we are born with. All people have the same Civil rights that are extensions of those natural rights, and no individual has more rights or less rights than any other individual based on membership in some group or another. When it comes to legal structures, governments, corporations, etc. these are all just groups of people that again have no more or less rights than any other group of people.

[soundguy]

Fed Farmer,

I don't follow your symbols, are you trying to illustrate how one trumps the other down the line?

 

the symbol '>' is read as 'greater than'.

 

Translation:

Civil rights are 'greater than' states rights which are 'greater than' federal rights.

[Drylok]

What FF is saying is Civil Rights trump State Powers and State Powers trump Federal Powers.

 

If that's the case then the Illinois state law requiring FOID trumps the federal law which does not. Where does that get us? It's the other way around when refering to rights as you explained above.

 

BTW love your rant about groups who think they have rights, you are correct they do not!

[abolt243]

What FF is saying is Civil Rights trump State Powers and State Powers trump Federal Powers.

 

If that's the case then the Illinois state law requiring FOID trumps the federal law which does not. Where does that get us? It's the other way around when refering to rights as you explained above.

 

BTW love your rant about groups who think they have rights, you are correct they do not!

 

Think about it though, if civil rights trump state law, then the inalienable rights enumerated (listed, not granted) in the Bill of Rights trump the FOID law!!!!! But only if the limitations of the constitution are shown to affect the states also!!

 

The Constitution is not Federal Law!! It is the document that sets up the parameters in which the Federal government operates and enumerates those areas that the Fed can regulate. The Bill of Rights LIMITS the powers of the Federal government. Incorporation of the Bill of Rights EXTENDS that LIMITATION to the powers of the states. Incorporation of an amendment does not give the feds OR the states more power. It limits thier power and confirms and strengthens the constitution.

 

That's my take on it.

 

UAB

[Drylok]

I admit I tend to get in the wrong thinking that the consitution made laws to be followed. It did but they were laws FOR the federal government not for the people.

 

I see what you mean about civil rights trumping the states which makes states trumping fed moot point. So the final equation looks like this

 

Civil Rights > State Powers > Fed Powers

[Federal Farmer]

Fed Farmer,

I don't follow your symbols, are you trying to illustrate how one trumps the other down the line?

 

And what do you mean by rights being used a bit loosely. Either something is a right or it isn't. For example the right of the people to keep and bear arms is obviously a right.

 

Yep, ">" means 'greater than'. I meant loosely in the sense that govts dont really have rights, but often are ascribed such (ala states' rights).

[GWBH]

Fed Farmer,

I don't follow your symbols, are you trying to illustrate how one trumps the other down the line?

 

And what do you mean by rights being used a bit loosely. Either something is a right or it isn't. For example the right of the people to keep and bear arms is obviously a right.

 

Yep, ">" means 'greater than'. I meant loosely in the sense that govts dont really have rights, but often are ascribed such (ala states' rights).

 

I love a man who knows his Constitution!!

 

It is "WE the People" who retain rights. Since individual states are a collective of the people, the rights are reserved to the states, or we the people.

 

Well - that's the way it's SUPPOSED to be... things have become a bit turned around -

A number of things done by government are not Constitutional - like executive orders - it's not in the Constitution, but has become common place. There are so many that have been issued, we're just a breath away from tyranny.

[Ol'Coach]

Our friend MoHunter from missouri carry says this about incorporation. I'll ask him to come over here, cause I'd like to watch some of you folks discuss this with him.

 

Mohunter

"I've still got mixed emotions about it. Part of me wants to say it's a good ruling, and another part of me wants to say that I don't believe in incorporation of these amendments. I guess we shall see how this works out as time goes on.

 

The Constitution and our Bill Of Rights was written to limit the powers of Federal Government, not of the state. The 10th Amendment reserves all other powers to the state and the people of the state, respectively. Incorporation of these amendments is basically imposing the limitations of the Federal Government on the states by the Federal Government, even though no such authority has ever been given to them. Our founders envisioned a weak central government, and a government that grew stronger and stronger the closer it got to the level of "the people". Incorporation kinda takes that out of the equation. Are we to believe that the states are limited in their powers to that which the Federal Government is limited? That is certainly not how the 10th Amendment reads.

 

Furthermore, the Second Amendment is a right endowed to us by our "creator". It shouldn't be freely ignored by government at any level, period.

 

At the very least, I think the issue of incorporation is a slippery slope to go down and could come back to bite us at some point."

 

I'm an engineer (the type that DOESN'T drive trains) so the equation is very simple:

civil rights > states powers/rights* > federal powers/rights*

 

 

* rights used a bit loosely

"Civil rights are greater than states rights (defined sometimes as powers, which in reality, they aren't!), which are greater than federal rights (sometimes defined as powers, which in reality, they aren't).

* Yeah! Define, "rights"!

 

I believe, comes a point, we gotta distinguish between, "rights," and , "powers"!

[GarandFan]

Lou Dobbs did some coverage of Nordyke this evening. Commentators were pleased with the incorporation, but predicted the 9th's inclusion of much "public property" as prohibitable "sensitive places" was over-reaching. I agree.

 

The best thing was Paul Helmke was on ... saying the ruling was a big victory for reasonable gun control. But I got the sense that he was talking through his teeth ... or was it lying. In truth, the incorporation by the 9th was a crushing blow for his group, and he damned well knows it. The Brady campain's brief in Nordyke argued that the second amendment does not apply to the states.

[Jeff Watts]

I'm going to keep quiet until I see how big brother is going to twist it around in some way and use it against us.

[Drylok]

The Brady campain's brief in Nordyke argued that the second amendment does not apply to the states.

Good grief, so who the heck do they think it applies to? Residents in each state are still United States residents, who do they think "We The People" is?

[GarandFan]

The Brady campain's brief in Nordyke argued that the second amendment does not apply to the states.

Good grief, so who the heck do they think it applies to? Residents in each state are still United States residents, who do they think "We The People" is?

 

The second amendment does NOT apply to "residents" or to the people. It applies to government, by commanding them that they shall not infringe the right of the people.

 

The amendment does not establish or grant any right. The right is a natural, pre-existing one. The second amendment just declares that the right shall not be infringed (by federal government). If there was any doubt, the 14th amendment declares that the right shall also not be infringed by state or local government.

 

In essence, the second amendment does three things:

 

1) declares that the militia is necessary to the security of a free nation (specifically, our free nation)

2) affirms the right of the people to keep and bear arms (text implies that the right is simply assumed)

3) commands that the government shall not infringe that right (infringe means to violate or encroach ... encroach means "intrude gradually")

 

It's a little semantic, really. So the command applies to governments, but the guarantee protects people's rights. Understand?

 

As an aside ... the second amendment has two parts. "A well regulated militia, being necessary to the security of a free state" is one part, while "the right of the people to keep and bear arms shall not be infringed" is another part. OK. The first part is usually termed the prefatory clause, which describes a purpose. The second part is usually termed the operative clause, which makes a command.

 

But some people seem to think that the command is "the right of the people to keep and bear arms." That is patently incorrect, because that right is simply assumed ... it simply "is." The command is actually the second part of the second clause ... "shall not be infringed." THAT is the operative part of the amendment. Shall not be infringed.

 

We have a long way to go on getting this issue corrected.

[w00dc4ip]

Garand,

Judging simply by the fact that you can articulate the US Constitution, natural and civil rights, and US and Illinois law better than anyone I've spoken to or read before, I have one question I'd like you to answer.

 

When are you going to run for office?

 

I'd like to work on your campaign.

w00dc4ip

- a fellow Cook resident...

[bob]

Slowly but surely, the 2a is going to be upheld. It is just a matter of laying a solid groundwork first. that takes time for good cases to work their way through the court system.

 

I am 51, and I have said elsewhere I do not expect to live to see the day when I can walk into WalMart, go to the machine gun aisle, and put an MP5 in my shopping cart. I do expect to live to see the bearing of arms become a protected right in all 50 states. I am not sure how it will be expressed, but I believe it will be. Its hard to see just how this kind of thing will play out, or how fast.

 

I think if we are smart about it, we might well have a shot at CC next legislative session. The legal environment will have changed enough by then that some kind of legally protected carry will be seen as inevitable. The legislature may well want to control their own destiny rather than have the courts make the rules up for them.

[lockman]

Garand,

Judging simply by the fact that you can articulate the US Constitution, natural and civil rights, and US and Illinois law better than anyone I've spoken to or read before, I have one question I'd like you to answer.

 

When are you going to run for office?

 

I'd like to work on your campaign.

w00dc4ip

- a fellow Cook resident...

 

He probably won't, he has to earn an honest living to support his family.

[GarandFan]

I am flattered, Woodchip. Thanks for your sentiments.

 

Perhaps if I had another lifetime ...

[Drylok]

The Brady campain's brief in Nordyke argued that the second amendment does not apply to the states.

Good grief, so who the heck do they think it applies to? Residents in each state are still United States residents, who do they think "We The People" is?

 

The second amendment does NOT apply to "residents" or to the people. It applies to government, by commanding them that they shall not infringe the right of the people.

 

The amendment does not establish or grant any right. The right is a natural, pre-existing one. The second amendment just declares that the right shall not be infringed (by federal government). If there was any doubt, the 14th amendment declares that the right shall also not be infringed by state or local government.

 

In essence, the second amendment does three things:

 

1) declares that the militia is necessary to the security of a free nation (specifically, our free nation)

2) affirms the right of the people to keep and bear arms (text implies that the right is simply assumed)

3) commands that the government shall not infringe that right (infringe means to violate or encroach ... encroach means "intrude gradually")

 

It's a little semantic, really. So the command applies to governments, but the guarantee protects people's rights. Understand?

 

As an aside ... the second amendment has two parts. "A well regulated militia, being necessary to the security of a free state" is one part, while "the right of the people to keep and bear arms shall not be infringed" is another part. OK. The first part is usually termed the prefatory clause, which describes a purpose. The second part is usually termed the operative clause, which makes a command.

 

But some people seem to think that the command is "the right of the people to keep and bear arms." That is patently incorrect, because that right is simply assumed ... it simply "is." The command is actually the second part of the second clause ... "shall not be infringed." THAT is the operative part of the amendment. Shall not be infringed.

 

We have a long way to go on getting this issue corrected.

The right of the people to keep and bear arms shall not be infringed. "the right" meaning natural right "of the people" meaning We The People "shall not" meaning government is prohibited from "be infringed" meaning not one single law restricting the right in any way.

 

which is why I don't understand how D.C. vs Miller was lost. And why I don't understand why the law makers who makes the gun laws from one state to the next or the congress persons who introduce such a law are not charged and hauled off.

[w00dc4ip]

I am flattered, Woodchip. Thanks for your sentiments.

 

Perhaps if I had another lifetime ...

In case you don't remember, I have met you in person. You're not so old that running for office would require a whole other lifetime.

 

I've believed for a long time that the people best suited to serve in public office wouldn't want the job. Like most people here (I assume), I have a family that comes first in all things. I work to provide for them and to earn and save enough money so that at some point in the future, I will no longer need to work in order to provide for my family. When that day comes, you will see my name on a ballot somewhere.

 

Anyway, enough of my off-topic, back to the discussion at hand.

w00dc4ip

[Ashrak]

I think that what it is most important here is that the Heller decision forced the ruling hand of the 9th circuit. If the Heller decision is strong enough to force the ruling hand of the most liberal court in the land, then it will prove strong enough to do so in other courts as well.

 

I think it is also a good thing that they ruled against the plaintiffs. Doing so this puts the decision to appeal in the hands of the good guys. I think this convoluted decision is ripe for appeal on several fronts and I have to believe that SCOTUS will be willing to further clarify things in Heller with cases that would afford them the latitude to do so.

 

I noticed in the discussion that it was brought up that Heller was limited to 'in the home'. I would agree, as Scalia noted, that the substance of the Heller case was focused on 'in the home' directly but that Scalia tap danced on that subject carefully citing an example, while not limiting it to that specific example alone. This was the spirit with which he explained that military service was an example, but not limited only to that example.

 

When Scalia stated outright in Heller that the Second amendment is no different than the first, I think that incorporation of the second amendment itself, on its own merits, is not only implied but stated openly. That it is so ruled that the second amendment is an individual right not tied to military service and that there exists a due right to defense of self, family and property with a firearm supports this position, imho.

 

A civil right is a civil right no matter where we are within this country and they are to be observed and respected - and most importantly not violated - by any entity whether it be any government policy, another person or a private business.

 

I agree with the equation civil rights > state government's rights > Federal government's rights.

Civil rights are specific Liberties that cannot be undone, legislatively removed or dismissed by elected or appointed robed ones who simply disagree. Scalia spoke to this issue in Heller as well, a right is not a right at all if courts or legislatures can remove them by decision or bill at their discretion.

 

Individual Liberty > everything. Personal responsibility is the check that balances it's exercise.

 

I believe the house of cards known as "gun control" is falling apart. I believe Scalia's majority opinion is the trebuchet responsible for the initiation of it's demise and I believe each case that comes forward will further cement a new path that this country should have been on all along.

 

Abuses of firearms, as opposed to possessing and carrying them, is what should be rightfully regulated. What constitutes abuse? Only those things which demonstrably violate the civil rights of others.

 

I hope this is not out of line, I only aim to join the conversation with this, my first comment.

 

Mike

[GarandFan]

I hope this is not out of line, I only aim to join the conversation with this, my first comment.

 

Mike

 

Out of line? Not in the least. We welcome you here, Mike.

 

Thanks for your thoughtful comments.

[Drylok]

So good to be seeing this many unfamiliar faces lately. Mike welcome to the fight and thank you for that insightful 1st post.

 

Scott,

[1957Human]

There is already conflict. The 7th circuit ruled that the 2A did not apply to states in Quilici. The 2nd circuit recently also ruled against incorporation. Now the 9th has come out in favor. Circuit splits mean Supreme Court certs.

 

 

 

That certainly helps but it's not conclusive. (Not that you meant it was, but just to clarify.)

 

As noted HERE:

The fact that the lower courts are in conflict is not enough by itself.

You also have to show that the issue is one where uniformity counts — that the conflict is going to be difficult to live with. For example, one of us recently filed a petition on behalf of a pre-trial detainee who contended that his constitutional privacy rights were violated in Cook County Jail when he was routinely observed undressed and showering by female prison guards. The Seventh Circuit, in an opinion by Judge Easterbrook, held that prisoners lack any right to bodily privacy. Judge Posner dissented, so the case was immediately arresting because of this sharp division of opinion between two respected jurists. Seven other circuits have held that prisoners do have bodily privacy rights that in a particular case must be weighed against the needs of prison officials, so there was also a clear circuit split. By all objective indicators, the case was certworthy. The court nevertheless denied certiorari. Though the petition argued that the issue was important both because it involved human dignity and, more practically, because prisoner privacy suits are very common, take up a lot of resources, and could more efficiently be handled under a settled rule of law, we suspect that most Justices thought the issue was not quite important enough to warrant review.

Such denials of certiorari in the face of a circuit split are not unusual. Justice White counted 56 during the 1989 Term

(and thought this far too many). Beaulieu v. United States, 497 U.S. 1038, 1039 (1990).

[GarandFan]

I see what you are saying. I should have said "Circuit splits GENERALLY mean Supreme Court certs."

 

The fact that the lower courts are in conflict is not enough by itself. You also have to show that the issue is one where uniformity counts — that the conflict is going to be difficult to live with.

 

Your clarification is well-taken, and it's good to know all these factors.

 

But let me put it another way.

 

We have here a constitutionally-enumerated and fundamental individual right to keep and to carry the implements of lethal force. This is no small issue, and one in which federal circuit splits are absolutely going to be "difficult to live with." I gurarandamntee you that those living in the 2nd federal circuit (or any other circuit that denies the 2A applies to state and local goverments) will demand that the SCOTUS settles this. I guarantee you that there are those living in the 7th circuit (ours) who will make such demands should this circuit rule against incorporation (or defer the problem upward). There is only one upward from the circuit courts ... the Supreme Court. You're damned right they will rule on an incorporation case. It's just a matter of time (but not too much time).

[burningspear]

Another crystal ball prediction: The 7th Circuit will incorporate.............

[GarandFan]

Another crystal ball prediction: The 7th Circuit will incorporate.............

 

What's the likelihood of doing something similar to the 9th circuit ... incorporating the second and yet finding the issue driving the question (Chicago handgun ban) constitutional?

 

Maybe something you'd expect out of the ninth ...

 

 

PS: I think the above is HIGHLY unlikely ... but it's clear that the 9th painted an overly-broad justification for allowing infringment of gun possession on public property. I preduct that will be challenged, and I predict that strict scrutiny will be the rule.

[bob]

Another crystal ball prediction: The 7th Circuit will incorporate.............

 

What's the likelihood of doing something similar to the 9th circuit ... incorporating the second and yet finding the issue driving the question (Chicago handgun ban) constitutional?

 

Do you guys even read the Nordyke decision?

 

[15] To summarize: the Ordinance does not meaningfully

impede the ability of individuals to defend themselves in their

homes with usable firearms, the core of the right as Heller

analyzed it. The Ordinance falls on the lawful side of the divi-

sion, familiar from other areas of substantive due process doctrine,

between unconstitutional interference with individual

rights and permissible government non facilitation of their

exercise. Finally, prohibiting firearm possession on municipal

property fits within the exception from the Second Amendment

for “sensitive places” that Heller recognized. These considerations

compel us to conclude that the Second

Amendment does not invalidate the specific Ordinance before

us.

The Nordykes made a claim that the 2A should be incorporated and the court agreed. They also claimed that Heller protected their right to have a gun show on county property. The court did not agree since Heller was fundamentally about keeping guns in the home and having guns on county property is a big stretch.

 

The Chicago handgun ban is close enough to the DC ban that if the court incorporates, it will find the ban unconstitutional. Likely, Chicago will just open up the handgun registration process to new guns if that happens and then we will have to sue over that. There are a bazillion sides of this issue that have to be addressed and the way the legal system works is that each little issue usually gets addressed in a seperate court case.

[GarandFan]

Another crystal ball prediction: The 7th Circuit will incorporate.............

 

What's the likelihood of doing something similar to the 9th circuit ... incorporating the second and yet finding the issue driving the question (Chicago handgun ban) constitutional?

 

Do you guys even read the Nordyke decision?

 

the court ruled the 2a was incorporated but that it did not require the county to provide a venue for commerce in arms.

 

 

No, we don't read the Nordyke decision ...

 

Nordyke ruled far more broadly than you suggest. They ruled against the possession of firearms on county property (it being a "sensitive place"), and even used the terms "public places" (elsewhere, not in the quote below). Most certainly, the 9th is being too narrow, because if one has a fundamental right to self defense, that right to defense applies outside the home as well as inside. This will take time.

 

[15] To summarize: the Ordinance does not meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it. The Ordinance falls on the lawful side of the division, familiar from other areas of substantive due process doctrine, between unconstitutional interference with individual rights and permissible government nonfacilitation of their exercise. Finally, prohibiting firearm possession on municipal property fits within the exception from the Second Amendment for “sensitive places” that Heller recognized. These considerations compel us to conclude that the Second Amendment does not invalidate the specific Ordinance before us. Therefore, the district court did not abuse its discretion in denying the Nordykes leave to amend their complaint to add a Second Amendment claim that would have been futile.

 

 

EDITED TO ADD: It seems you've clarified your previous post while I was typing.

[bob]

you were typing while I was editing.

 

Sensitive places in Heller was dicta, IIRC.

[GarandFan]

That's cool. I know what you are saying, and agree that it's impossible for the 7th to incorporate without also overturning Chicago's ban.

 

My argument is that the Nordyke decision to uphold gun bans on public property is WAY out of line regarding a fundamental right.