[ReelinRod]

Originally Posted by spence

My lexicon is not flawed. Judges interpret legislation to test adherence to the Constitution.

I was having a laugh at your expense, re: your exchange with Scott and the ungoogleability of the words you were using . . . LOL

Originally Posted by spence

People say the big deal about Heller was the validation of the individual right but I'm not so sure.

The reaffirming of the individual right was not new or remarkable nor did it upset any Supreme Court precedent. What it did do was invalidate the "militia right" and "state's right" interpretations established by U.S. v. Tot, 131 F.2d 261 (3 rd Cir. 1942) and Cases v. U.S, 131 F.2d 916 (1 st Cir. 1942) respectively. Those new interpretations forced gun rights / 2nd Amendment jurisprudence off the constitutional rail between 1942 and 2008. Every case decided between those dates that use the "militia right" or "state's right" (or as we have seen in Nordyke citing Hickman, the catch all "collective right") are now infirm which means the laws that they upheld on those grounds are now infirm.

Those decisions are like a group of drunks all leaning on one another leaning on the same lamppost. . . Heller knocked the lamp post down . . .

Originally Posted by spence

The individual right to own has always been there, it just hasn't been explicitly validated, what to own or for what purpose is still an open question.

Of course it has been established. Miller did that and Heller follows that lead. The hyperbolic explanation of what Miller set out was the justification for the Cases court to invent the "militia right" out of thin air.

" . . . if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,-- almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,-- is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result."

Cases v. U.S, 131 F.2d 916 (1 st Cir. 1942) (40K pdf)

Originally Posted by spence

You're spinning the footnote.

Not really. Circuit courts are still examining what should be unimpeachable felon dispossession statutes and Heller's "presumptively lawful" statement is why. Felon dispossession statutes do not rely on the "militia right" or "state's right" interpretations of the 2nd Amendment so they have passed constitutional muster but Heller does direct these Courts to hear argument that "presumptively lawful" restrictions fail constitutional muster:

"As the Government concedes, Heller’s statement regarding the presumptive validity of felon gun dispossession statutes does not foreclose Barton’s as-applied challenge. By describing the felon disarmament ban as “presumptively” lawful, the Supreme Court implied that the presumption may be rebutted."

U.S. v. Barton, 633 F.3d 168 (3d Cir. 2011) (58kb pdf) (internal citation removed)

Pretend all you want but when laws upheld with cites to Tot or Cases (or later cases Stevens or Warin etc, etc citing Tot or Cases) come before any court, they will fall.

Originally Posted by spence

That the research was not "exhaustive" is irrelevant as the opinion is very clear in it's support for Miller. To say they didn't contest because that was outside of the case would be wrong as the opinion appears to endorse previous judgements.

Previous Supreme Court decisions . . . I am talking about lower federal and state court decisions post Cases and Tot that used the "militia right" and "state's right" to sustain the constitutionality of gun control laws contested on 2nd Amendment grounds . . . The premise of those holdings has been invalidated by higher authority (and were in fact invalid when Cases and Tot inserted them into the federal court system but that's another discussion).

Originally Posted by spence

You're mixing cut and pastes together.

No, I'm not, but please, feel free to point out and explain my error . . .

Originally Posted by spence

What's significant about these cases is also what's not significant. Yes, by narrow margin they established that common firearms can't be totally banned and that States must adhere to the Second Amendment...but beyond that don't expand on what that really means in any new way.

If you don't appreciate the significance of having the 2nd Amendment applied to state action then I guess you will never 'get it'. What do you think the implications are for a state like NJ which has no right to arms provisions in its own Constitution and the state legislature has taken that to mean anything goes?

Especially given the fact that nearly all NJ's draconian gun control was affirmed in a single state supreme court case that relies totally on the "militia right" theory and that the 2nd is not an impediment to the NJ state legislature.

Originally Posted by spence

The idea that the potential is now there to invalidate all gun laws is pretty absurd and generally runs against public opinion.

In a constitutional republic, public opinion has absolutely no bearing on the rights of the citizen.

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943)

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