Friday, November 23, 2007

Part 3 - SCOTUS and the 2nd Amendment ruling (DC v Heller Preview)

Part I focuses on an overview. Part II focuses on the orignal intent by the founding fathers. Part 4 will focus on the US v Miller case, and Part 5 will focus on the DC v Heller (Parker v DC) case itself.

There's a lot of talk about what the courts said regarding the 2nd Amendment. The current precident, US v Miller is cited by both sides in the debate as to supporting (to a degree) their side in the matter. It's bad precident, largely because it is not clear precident. There's a reason why it is bad precident, and not because it may or may not be judicial activism. It's bad because one of the sides never showed up to court.

The three major circuit cases today are the US v Emerson Case (5th Circuit), Silveira v Lockyer (9th Circuit), and Parker v DC (Renamed DC v Heller). Those three I'll discuss after the Miller case.

One of the other problems is that oftentimes, there aren't good test cases. One of the differences between Heller and many other cases is the plaintiff. Being charged with a crime and then suing on 2nd Amendment grounds doesn't go over very well. Justice is supposed to be blind, but there's a big difference when the plaintiff is a cop or security guard, than when the plaintiff is accused of a crime or someone like Mark Koernke. The NAACP was a master of that during the civil rights days. James Meredith was a very good test case. One of the main lessons driven home to law abiding gun owners in CCW class and elsewhere is this "DON'T be a test case." Why? You may lose, that's why. In gun related cases, losing is a high cost, especially in the age of zero tolerance - fines, jail, right to keep and bear arms, and a felony or misdemeanor on your record. I'm not going to strap on an AKS, walk around Downtown Lansing with it, get myself arrested, and claim 2nd Amendment as a defense. Could I win? Maybe - with $100,000 to spare, the right judges, and top attorneys who would be willing to fight instead of a plea bargain. Everything would have to go right. Is that good enough odds for me to go for it? Nope - especially with state laws and a process that allowed Concealed carry. I did not even mention that I'd have to pray that SCOTUS hears the case, which rarely happens. When it comes to test cases, Bob Levy (Cato Institute) got DC v Heller right, and I'll get to that in part 4. Emerson on the other hand, was not a good test case.

The Second Amendment has been heard five times by SCOTUS directly, although it has been mentioned related to several other cases.

The earliest case I could find was a state case. Nunn vs Georgia, a criminal case from 1846. This was before the 14th Amendment, which is important regarding incorporation of the bill of rights to the states. Click here for the case. There were some splits even among the states, but the main factor here was carrying a concealed weapon.

The right of the people peaceably to assemble and petition the
government for a redress of grievances; to be secure in their
persons, houses, papers, and effects, against unreasonable searches
and seizures; in all criminal prosecutions, to be confronted with
the witness against them; to be publicly tried by an impartial
jury; and to have the assistance of counsel for their defence, is
as perfect under the State as the national legislature, and cannot
be violated by either.

Nor is the right involved in this discussion less
comprehensive or valuable: "The right of the people to bear arms
shall not be infringed;" The right of the whole people, old and
young, men, women and boys, and not militia only, to keep and hear
arms of every description, not merely as are used by the militia,
shall not be infringed, curtailed, or broken in upon, in the
smallest degree; and all this for the important end to be attained:
the rearing up and qualifying a well-regulated militia, so vitally
necessary to the security of a free State. Our opinion is, that
any law, State or Federal, is repugnant to the Constitution, and
void, which contravenes this right, originally belonging to our
forefathers, trampled under foot by Charles I. and his two wicked
sons and successors, reestablished by the revolution of 1688,
conveyed to this land of liberty by the colonists, and finally
incorporated conspicuously in our own Magna Charta! And Lexington,
Concord, Camden, River Raisin, Sandusky, and the laurel-crowned
field of New Orleans, plead eloquently for this interpretation!
And the acquisition of Texas may be considered the full fruits of
this great constitutional right.

We are of the opinion, then, that so far as the act of 1837
seeks to suppress the practice of carrying certain weapons
secretly, that it is valid, inasmuch as it does not deprive the
citizen of his natural right of self-defence, or of his
constitutional right to keep and bear arms. But that so much of
it, as contains a prohibition against bearing arms openly is in
conflict with the Constitution, and void; and that, as the
defendant has been indicted and convicted for carrying a pistol,
without charging that it was done in a concealed manner, under that
portion of the statute which entirely forbids its use, the judgment
of the court below must be reversed, and the proceeding quashed.


Keep in mind on that case that Georgia enacted the right to keep and bear arms in 1861, after State v Nunn.

In 1850 Louisiana, State v Chandler used the right to keep and bear arms as part of his defense, regarding Concealed weapons.


The counsel of the accused requested the court to charge the jury, “that to carry weapons, either concealed or openly, is not a crime in the State of Louisiana; that the Constitution which guarantees to the citizen the right to bear arms cannot be restricted by the action of the Legislature.”


The act of the 25th of March, 1813, makes it a misdemeanor to be “found with a concealed weapon, such as a dirk, dagger, knife, pistol, or any other deadly weapon concealed in his bosom, coat, or any other place about him, that does not appear in full open view.” This law became absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons. It interfered with no man's right to carry arms (to use its words) “in full open view,” which places men upon an equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations


This court seperated "concealed carry" and "open carry." Concealed carry by custom is much more openly accepted today (criminal defense) while open carry depends more on the area. There's some debate over open carry in Michigan, but I don't recommend it in a practical sense, particulary when there is shall issue CPL.

The infamous Dred Scott case was a piece of bad judicial activism. We all know that. But let's look at the rights specificly denied to black Americans at that time.

The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation; or, that when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens. It cannot be supposed that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police *417 regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.


It is impossible, it would seem, to believe that the great men of the slaveholding States, who took so large a share in framing the Constitution of the United States, and exercised so much influence in procuring its adoption, could have been so forgetful or regardless of their own safety and the safety of those who trusted and confided in them.


The good news is that the decision was overturned by constitutional amendment (13th, 14th). What's important about that case today besides being bad law is that it specifically mentiones constitutional rights then denied to black Americans.

The first time SCOTUS heard a case on the Second Amendment is in 1876. US v Cruikshank. Anti's like to site that this case says the 2nd amendment doesn't grant the right to keep and bear arms. The Entire Decision is here and the court says this. This case was before the 14th Amendment and due process or equal protection brought incorporation down to the states. Look at not only what is said about the 2nd Amendment, but the 1st amendment in this case, which is treated the same way.

The first and ninth counts state the intent of the defendants to have been to hinder and prevent the citizens named in the free exercise and enjoyment of their 'lawful right and privilege to peaceably assemble together with each other and with other citizens of the United States for a peaceful and lawful purpose.' The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It 'derives its source,' to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211, 'from those laws whose authority is acknowledged by civilized man throughout the world.' It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection. As no direct power over it was granted to Congress, it remains, according to the ruling in Gibbons v. Ogden, id. 203, subject to State jurisdiction. [92 U.S. 542, 552] Only such existing rights were committed by the people to the protection of Congress as came within the general scope of the authority granted to the national government.

The first amendment to the Constitution prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. Barron v. The City of Baltimore, 7 Pet. 250; Lessee of Livingston v. Moore, id. 551; Fox v. Ohio, 5 How. 434; Smith v. Maryland, 18 id. 76; Withers v. Buckley, 20 id. 90; Pervear v. The Commonwealth, 5 Wall. 479; Twitchell v. The Commonwealth, 7 id. 321; Edwards v. Elliott, 21 id. 557. It is now too late to question the correctness of this construction. As was said by the late Chief Justice, in Twitchell v. The Commonwealth, 7 Wall. 325, 'the scope and application of these amendments are no longer subjects of discussion here.' They left the authority of the States just where they found it, and added nothing to the already existing powers of the United States.

The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.

The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in [92 U.S. 542, 553] these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States. Such, however, is not the case. The offence, as stated in the indictment, will be made out, if it be shown that the object of the conspiracy was to prevent a meeting for any lawful purpose whatever.

The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States


Today, a law by a state restricting free speech would be overturned faster than you can say Jack Robinson. In today's world of equal protection, fundamental rights of due process, pnembras, and in some cases creating rights (Roe v Wade), I can not see how Cruikshank can still be considered good precident even in its real form and not misinterpreted form. It has not been directly overruled. Even if is applied in its 2nd amendment form today, it favors Heller in the Parker case, since it did not say that it did not apply nationally. If you keep Cruikshank (state's rights), all those other cases should then be overturned based on consistency.

The 8th Circuit used Cruikshank misinterpretation of the 2nd Amendment. The weapon involved there was a switchblade. This was in 1988, before Emerson and Parker.

We also decline to hold that the Act violates the second amendment. Nelsen claims to find a fundamental right to keep and bear arms in that amendment, but this has not been the law for at least 100 years. In United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876), the Supreme Court overturned criminal convictions based on interference with supposed second amendment rights. “The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution.” Id. at 553. Later cases have analyzed the second amendment purely in terms of protecting state militias, rather than individual rights. See, e.g., United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939); United States v. Oakes, 564 F.2d 384 (10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978); United States v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976). Nelsen has made no arguments that the Act would impair any state militia, and we do not see how such a claim could plausibly be made.


I'll get to Miller later. Oaks was an application to Miller, as is Warin (a very very poor misinterpretation).

Presser v Illinois (1886) (I couldn't link it, but it is at Findlaw)

This case is about a man who paraded with a group of armed men. He was found guilty and it was affirmed. Regarding the 2nd Amendment, it affirmed Cruikshank:

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. It was so held by this court in the case of U. S. v. Cruikshank, 92 U.S. 542 , 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms 'is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. [116 U.S. 252, 102] 139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the constitution of the United States.' See, also, Barron v. Baltimore, 7 Pet. 243; Fox v. State, 5 How. 410; Twitchell v. Com., 7 Wall. 321, 327; Jackson v. Wood, 2 Cow. 819;Com. v. Purchase, 2 Pick. 521; U. S. v. Cruikshank, 1 Woods, 308; North Carolina v. Newsom, 5 Ired. 250; Andrews v. State, 3 Heisk. 165; Fife v. State, 31 Ark. 455.

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think [116 U.S. 252, 266] it clear that the sections under consideration do not have this effect.


The same thing said about Cruikshank can be said here, but there is no doubt who the militia is here. The three "major" circuit cases conflicting today all cited this case as well, even though they all contradict one another.

1894 - Miller v Texas (Found at Findlaw, couldn't link it here)

Miller was a bad test case as well, and his attorney blundered in a bad way.


He didn't make a 14th Amendment claim at trial court, and appeals courts are only authorized to look at what happened in lower courts. Cruikshank was affirmed.

Without, however, expressing a decided opinion upon the invalidity of the writ as it now stands, we think there is no federal question properly presented by the record in this [153 U.S. 535, 538] case, and that the writ of error must be dismissed upon that ground. The record exhibits nothing of what took place in the court of original jurisdiction, and begins with the assignment of errors in the court of criminal appeals. In this assignment no claim was made of any ruling of the court below adverse to any constitutional right claimed by the defendant, nor does any such appear in the opinion of the court, which deals only with certain alleged errors relating to the impaneling of the jury, the denial of a continuance, the admission of certain testimony, and certain exceptions taken to the charge of the court. In his motion for a rehearing, however, defendant claimed that the law of the state of Texas forbidding the carrying of weapons, and authorizing the arrest, without warrant, of any person violating such law, under which certain questions arose upon the trial of the case, was in conflict with the second and fourth amendments to the constitution of the United States, one of which provides that the right of the people to keep and bear arms shall not be infringed, and the other of which protects the people against unreasonable searches and seizures. We have examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions, and, even if he were, it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts. Barron v. Baltimore, 7 Pet. 243; Fox v. Ohio, 5 How. 410; Twitchell v. Com., 7 Wall. 321; The Justices v. Murray, 9 Wall. 274; U. S. v. Cruikshank, 92 U.S. 542 , 552; Spies v. Illinois, 123 U.S. 131 , 8 Sup. Ct. 21.

And if the fourteenth amendment limited the power of the states as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court. In Spies v. Illinois, 123 U.S. 131, 180 , 8 S. Sup. Ct. 21, objection was made that a certain letter was obtained from the defendant by an unlawful seizure, and the constitutional immunity was set up in the supreme court of Illinois, as well as in this court, but it was not made on the trial in the court of original jurisdiction. It was held, both [153 U.S. 535, 539] by the supreme court of Illinois and by this court, that the defense should have proven that the letter was unlawfully seized by the police, and should then have opposed its admission upon the ground that it was obtained by such unlawful seizure. Said the chief justice: 'As the supreme court of the state was reviewing the decision of the trial court, it must appear that the claim was made in that court, because the supreme court was only authorized to review the judgment for errors committed there; and we can do no more. ... If the right was not set up or claimed in the proper court below, the judgment of the highest court of the state in the action is conclusive, so far as the right of reviews here is concerned.' So in Texas & P. Ry. Co. v. Southern Pac. Co., 137 U.S. 48 , 11 Sup. Ct. 10, it was held directly that a privilege or immunity under the constitution of the United States cannot be set up here under Rev. St. 709, when suggested for the first time in a petition for rehearing after judgment. See, also, Caldwell v. Texas, 137 U.S. 692, 698 , 11 S. Sup. Ct. 224.


On that, the Court was right. If you don't make the claim when you are supposed to in trial court, you can't win at appeals. Basic procedure 101.

Those three pre-Miller cases were all in the 1800's, and long before incorporation became used, starting to some extent in the Lochner era, but more common during the Warren Court, and especially during the Burger Court. The Burger court era however was probably the most hostile to the 2nd Amendment, largely with the influx of LBJ and some Nixon and especially Jimmy Carter appointees to the courts as they became a lot more politicized with judicial activism. This gives birth to the "Individual" vs "Collective" right appoach you hear with the 2nd Amendment.

Today, there seems to be some set of a throwback, at least on 2nd Amendment issues. Even some liberal juticial scholars such as Lawrence Tribe and Sanford Levinson are mentioning the individual rights approach. Most of the chattering class, in particular the media, especially the goons at the NY Times are pushing the leftist "collectivist" rights appoach.

The Miller interpretations have been argued for almost 70 years. Part 4 will cover that.

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