NRA

[ReelinRod]

Originally Posted by detbuch

I believe that the second quote: "Governments can only claim power to restrict "dangerous or unusual arms" is referring mostly to state governments since the Federal Gvt is already presumed, via the Second Ammendment and the Constitution's silence, to have no interest in private ownership of arms.

I was referring to the federal government primarily.

Even though no express power was granted via the Constitution the feds can argue that a compelling government interest to restrict any right exists. If government's arguments are convincing and supported it could be afforded the unenumerated power being claimed.

I could see this happening if anyone ever brings action for Title II arms; even though, as Heller recognizes machineguns meet the usefulness protection criteria, the feds could argue that NFA-34 is a legitimate exercise of power even under strict scrutiny* . . .

This after all was what Miller was all about . . . no evidence was offered to show that a "shotgun having a barrel of less than eighteen inches in length . . . is any part of the ordinary military equipment, or that its use could contribute to the common defense".

No evidence presented and the Court not looking on their own = the Court finding that the arm is -dangerous and unusual- thus government's claim of power to restrict private, individual, civilian possession and use is sustained. Had such evidence been presented the right to own would have been upheld and that part of NFA-34 would have been struck down.

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* The strict scrutiny standard is the most thorough analysis. The purpose, objective, or interest being pursued by the government must be "compelling". Also, the means to achieve the purpose, objective, or interest is reviewed to determine if it is "narrowly tailored" to the accomplishment of the governmental purpose, objective, or interest. There must not be any less restrictive means that would accomplish the government’s objective just as well.

Strict scrutiny is applied in cases where there is a real and appreciable impact on, or a significant interference with the exercise of a fundamental right. The language of the court's opinion indicates the level of scrutiny applied. If the analysis discusses a compelling interest that is narrowly tailored to achieve its goals, it is a strict scrutiny analysis. Strict scrutiny is at the opposite end of the spectrum for the rational basis test used. Under the rational basis standard, the court determines whether there is any rational justification for the classifications created by a challenged rule, which must further a “legitimate governmental interest". Under intermediate scrutiny, the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.


US Legal

[detbuch]

Originally Posted by ReelinRod

I was referring to the federal government primarily.

Even though no express power was granted via the Constitution the feds can argue that a compelling government interest to restrict any right exists. If government's arguments are convincing and supported it could be afforded the unenumerated power being claimed.

I could see this happening if anyone ever brings action for Title II arms; even though, as Heller recognizes machineguns meet the usefulness protection criteria, the feds could argue that NFA-34 is a legitimate exercise of power even under strict scrutiny* . . .

This after all was what Miller was all about . . . no evidence was offered to show that a "shotgun having a barrel of less than eighteen inches in length . . . is any part of the ordinary military equipment, or that its use could contribute to the common defense".

No evidence presented and the Court not looking on their own = the Court finding that the arm is -dangerous and unusual- thus government's claim of power to restrict private, individual, civilian possession and use is sustained. Had such evidence been presented the right to own would have been upheld and that part of NFA-34 would have been struck down.

---------------------

* The strict scrutiny standard is the most thorough analysis. The purpose, objective, or interest being pursued by the government must be "compelling". Also, the means to achieve the purpose, objective, or interest is reviewed to determine if it is "narrowly tailored" to the accomplishment of the governmental purpose, objective, or interest. There must not be any less restrictive means that would accomplish the government’s objective just as well.

Strict scrutiny is applied in cases where there is a real and appreciable impact on, or a significant interference with the exercise of a fundamental right. The language of the court's opinion indicates the level of scrutiny applied. If the analysis discusses a compelling interest that is narrowly tailored to achieve its goals, it is a strict scrutiny analysis. Strict scrutiny is at the opposite end of the spectrum for the rational basis test used. Under the rational basis standard, the court determines whether there is any rational justification for the classifications created by a challenged rule, which must further a “legitimate governmental interest". Under intermediate scrutiny, the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.


US Legal

In 1996, Justice Scalia provided an explanation of the Court's application of its standards of scrutiny. He said

“I shall devote most of my analysis to evaluating the Court's opinion on the basis of our current equal protection jurisprudence, which regards this Court as free to evaluate everything under the sun by applying one of three tests: 'rational basis' scrutiny, intermediate scrutiny, or strict scrutiny. These tests are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case. Strict scrutiny, we have said, is reserved for state 'classifications based on race or national origin and classifications affecting fundamental rights,' Clark v. Jeter, 486 U.S. 456, 461 (1988) (citation omitted). It is my position that the term 'fundamental rights' should be limited to 'interest[s] traditionally protected by our society,' Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality opinion of Scalia, J.); but the Court has not accepted that view, so that strict scrutiny will be applied to the deprivation of whatever sort of right we consider 'fundamental.' We have no established criterion for 'intermediate scrutiny' either, but essentially apply it when it seems like a good idea to load the dice. So far it has been applied to content neutral restrictions that place an incidental burden on speech, to disabilities attendant to illegitimacy, and to discrimination on the basis of sex.

I have no problem with a system of abstract tests such as rational basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it)." (United States v. Virginia et al. (94-1941), 518 U.S. 515 (1996))


I agree with Scalia that "strict scrutiny" as well as the other standards of scrutiny are unscientific and random. I believe they can also, as revealed in the dissents in Heller, be politically inspired in their "interpretation." And if not politically inspired, certainly bias or, simply, a different point of view can result in differing opinions and results. Which is why I don't think the Second Ammendment is "safe" from being transformed from original interpretation to some progressive, "Living Constitution" creature. If the Second Ammendment will in the future be more thoroughly reviewed, it may well depend on who sits on the court whether original interpretations will stand. And whether the idea that government's purpose, objective, or interest must be "compelling" again will ultimately be decided by the makeup of the Court. These are the kinds of judicial mechanisms that have been used to overcome originalism and textualism, and which have evolved to a great extent to do so. They are samples of evolved jurisprudence methodology that has created the "Living Constitution" and enabled progressive rule by men rather than by law.

[ReelinRod]

I believe that the test to determine what a "fundamental right" is, is well established and now that fundamental status has been declared for the right to arms for self defense it can't be undone.

That all that judicial invention of standard of scrutiny exists, (along with selective incorporation), is why many people were so excited when SCOTUS granted cert to McDonald v Chicago and not NRA v Chicago (although they were joined later).

Conservatives and Liberals hoped that McDonald's primary argument that the right to arms is enforceable on the states by way of the 14th Amendment's "privileges or immunities" clause, meant the Court would revisit Slaughterhouse.

Slaughterhouse gutted the "privileges or immunities" clause which only left "due process' as the vehicle to apply the Bill of Rights to the states under the 14th Amendment. This also left unenumerated rights out in the cold, hence the "invention" of prenumbral rights including the right to privacy / Roe v Wade.

"Due process" demands a case by case, fact by fact inspection which of course leaves politically agenda driven judges and Justices plenty of parchment to add to the Constitution.

Thomas' concurrence in McDonald is a history lesson and an explanation and indictment of the "legal fiction" described above.

Thomas's concurrence is a blueprint of where we should be and I recommend everyone read it.

Liberals would be happy because the unenumerated rights they embrace would be secure without questionable reasoning and conservatives (at least those who cherish the Constitution, as opposed to "social' and "cultural" conservatives) would be happy because the Constitution would finally be enforced.

[detbuch]

Originally Posted by ReelinRod

I believe that the test to determine what a "fundamental right" is, is well established and now that fundamental status has been declared for the right to arms for self defense it can't be undone.

It is telling that we have to "test" to determine what are fundamental rights. Would that "great residuum of everythng not conferred to government" be comprised of fundamental rights? Isn't that why the Federalists didn't want to create a Bill of Rights? And isn't what they warned against that which has happened? Haven't the Bill of Rights implied exceptions to powers not granted and afforded colorable pretext for the Federal Gvt. to claim more rights than were granted to it. And by doing so, has not that Federal Gvt. suppressed, usurped, or gained power over the vast residuum of individual rights, leaving only a violation of the Bill of Rights worthy of "Strict Scrutiny?"

And aren't even those rights in The Bill of Rights under assault?:

First Ammendment: Contraceptive insurance required even by certain religious orgs. The rather newly "found" Doctrine of Government Speech that can override individual speech.

2nd: The constant attempts by the Federal Gvt. to regulate, restrict, or ban arms.

4th: The Patriot Act.

5th: Kelo v. New London.

9th and 10th: Progressive judicial "interpretation" especially from FDR Court to the present have allowed the Federal Gvt. to wrest powers beyond the enumerated powers or have twisted the meaning of clauses which has debilitated or denied much of that "greate residuum" of rights that were to be retained by the people.

Thomas's concurrence is a blueprint of where we should be and I recommend everyone read it.

I followed your advice and did read it. I agree. Thomas is my favorite SCOTUS Judge. I think he is more faithful to the Constitution even than Scalia.

But Heller and McDonald were both 5 to 4 decisions. Kagan and Sotomayor didn't even bother to write a dissent in McDonald. I think that elections DO matter, and "fundamental rights" can be restricted or denied depending on who legislates and which judges have been appointed by those elected. Thomas and Scalia may not be sitting on the Court in the near future, and if progressive judges take their place, the assault on individual, "fundamental" rights will continue. And even if the Second Ammendment is now unassailable, which I don't think is true, given how that "great residuum" of rights has been gutted or put under the largesse of government, what use would the 2nd be if all others were taken? Are we worthy, as a people, of the Second Ammendment? Would we, under duress of losing our rights, actually put that Ammendment to the use for which it was ultimately intended?

I don't think so.

[TheSpecialist]

Looks like the Dems may not have enough votes to pass the ban... Some Dems are bailing because they know this will do nothing...

[spence]

Originally Posted by TheSpecialist

Looks like the Dems may not have enough votes to pass the ban... Some Dems are bailing because they know this will do nothing...

I think the real goal is to toughen up background checks more than anything else. There shouldn't be much opposition to closing the gun show loopholes etc...

-spence

[scottw]

Originally Posted by spence

I think the real goal is to toughen up background checks more than anything else. There shouldn't be much opposition to closing the gun show loopholes etc...

-spence

I thought the "real goal" was to stop the kind of recent violence that has prompted the latest call for action, how would what you mention as the "real goal" have stopped that violence? And if it wouldn't, how can we believe anything that you state? Pretty shameless and offensive if your "real goal" has nothing to do with your stated motivation, particularly when it involves little children....makes you really wonder about the "real goal" and "real motivation"

[TheSpecialist]

Originally Posted by spence

I think the real goal is to toughen up background checks more than anything else. There shouldn't be much opposition to closing the gun show loopholes etc...

-spence

You wont get any argument here, but down south , they will have a problem with that.

Did I tell you that my grandfather was a cobbler?