Interesting 2d Amendment Court Decision

Below is a link to the decision in the Emerson case I mentioned in the gun control thread below. It was issued today. It is a long opinion and has some stuff nobody will be interested in. But it has a very good discussion by the majority on the history and meaning of the 2d Amendment. I am not sure of its legal significance yet. It appears to create a circuit split on the question of whether the 2d Amendment creates an individual right. Having a circuit split is a major factor in whether the Supreme Court will hear an issue on appeal. (Particularly this Court which hears very few cases.) On the other hand, the poorly-written dissent argues, with some basis, that the majority opinion on the individual right analysis was simply dicta, i.e. was not necessary to the holding so is only so much scholarly and lawyerly blather and has no value as precedent. I am not sure on this. I tend to think the decision was based on the nature of the 2d Amendment, but the decision could possibly have been made without deciding that issue. I think the question was properly at issue, though, and would have gone along with the majority. Besides, the dissent quoted an article by the guy who wrote Andy Fox's crappy anti-gun book. :-)


Also, it is not clear if either party will appeal to the Supreme Court based on how the 5th Circuit decided. (I suspect the pro-gun groups will bankroll litigation if they can) The case appears to be in a weird procedural posture now, particularly since the DOJ has changed hands and the head guy there has publicly said he thinks the 2d Amendment is an individual right. The DOJ would have to appeal and argue the Clinton-Reno position to really give the Supreme Court a case to decide. At least that's how it appears after my first reading of the opinion. So I don't know what will come of this case. Even if it isn't appealed to the Supreme Court it might open the door to future legal challenges to some of the gun laws out there.

You of course mean "the crappy anti-gun book about which Andy Fox posted" not "Andy Fox's crappy anti-gun book." :-)


To reiterate my position (not that you asked): I don't care what the 2nd amendment says. It is vague. It may well have created an individual right to own guns. It is an anachronism and should be repealed. It will never be repealed, at least in the foreseeable future. That being the case, let's let those who use guns responsibly keep their guns and punish those who use guns irresponsibly harshly: mandatory, non-reducible prison terms for those who commit crimes using guns. Since there aer some who say we shouldn't get rid of guns, and some, like me, who say we won't get rid of guns, let's try to get rid of those who use the guns to do bad things.


I'll take a look at your link now and, hopefully, be dazzled by the brilliance of the opinion and/or the dissent.

Well, I've just started to wade through the legalese. The best use I could possibly find for guns would be to shoot all the lawyers. Today. If not sooner.


What is a "palladium"?

First, I'll change the wording of my reference to the book you have to "the crappy anti-gun book Andy Fox paid hard-won money for; money that would have been better spent on a loose river call or a bottle of Scotch, or even playing K3o." [img]/images/smile.gif[/img]


Now you want to shoot all the lawyers with the dreaded guns. See why the HDPM insists on being armed, he's in an unpopular profession where people think it's OK to shoot him. [img]/images/smile.gif[/img]


You are right that one answer is to punish the misuse of guns more severely. In Idaho, if you commit a felony with a deadly weapon, 15 years is added to the potential sentence. The sentence is not a mandatory sentence (few sentences here are minimum-mandatory type sentences) so it gives judges wide latitude in sentencing and gives prosecutors flexibility in charging, which overall works pretty well. I am not a big fan of mandatory minimum sentences for all crimes with a weapon.

Sometimes defendants deserve much more than the minimum mandatory, but sometimes the potential for a minimum mandatory can be an injustice. I had a couple such cases in another state where there were some draconian provisions that didn't always make sense. There were ways around them though, so it wasn't too bad. I am not familiar with the details of the sentencing laws in the other 48 states to know how they handle the situation. The NRA is pushing a program to increase prosecution of federal gun laws. Its the "enforce the laws we have now argument." There are pros and cons to this, but its hard to argue with locking violent felons up and appears to be having some impact.

LOL!


I noticed an article in today's L.A. Times about the Emerson case. Didn't get a chance to read it (we're re-doing a bathroom in our house and simply finding the newspaper was an heroic act), but I will tonight and let you know the Times take on it.


I hadn't realized you were a lawyer, sorry about that. I was just trying to think of something useful that could be accomplished with guns.


I looked up Palladium. It is something believed to provide protection or safety, derived from the statue of Pallas Athene, believed to have provided such protection for Troy.

The L.A. Times article on the Emerson case is entitled, "Court Says That Individuals Have a Right to Own Guns." The sub-title says, "The appellate ruling holds that the 2nd Amendment goes beyond the issue of state militias."


The article says that 2 of the 3 judges say that "We find that the history of the 2nd Amendment reinforces the plain meaning of its test, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia." It says the third judge in the appeals case said his colleagues had no need to opine on the meaning of hte 2nd Amendments in a "partial dissent."


I assume the dissent was only partial in that all 3 judges apparently upheld the validity of the Violence Against Women Act, the law by which a pistol was taken away from a divorced Texas physician. So it seems they are saying that while the 2nd Amendment createse an individual right, it does not preclude reasonable regulation of firearms. Of course, the definition of "reasonable" is the crux of the issue, it would seem.


The article quotes your friend Eugene Volokh. He says that the decision makes it more likely that the Supreme Court will take on the issue soon.


I'm going to start to wade my way through the decision tonight.


One question: if the 2nd Amendment guarantees individuals the right to have weapons "whether or not they are a member of a select militia," why does the 2nd Amendment say, "A well regulated militia, being necessary to the security of a free State, the right of the people. . ."?

Here is how Garwood answered my question:


We conclude that the Second Amendment's substantive guarantee, read as guaranteeing individual rights, may as so read reasonably be understood as being a guarantee which tends to enable, promote or further the existence, continuation or effectiveness of that "well-regulated Militia" which is "necessary to the security of a free State."


The way I read this (and I reiterate my previous statement that lawyers should be shot, or at least threatened with shooting until they learn to write in easily understood English) is that Garwood is turning the amendment on its head. He is taking the first clause about the militia and making it dependent on the second clause about keeping and bearing arms. This is the opposite of the way I read the amendment. It begins with the phrase, "A well regulated militia, being necessary. . ." and then says what right cannot be infringed because the militia is necessary. Garwood is saying the right to bear arms is the essential clause, and a well regulated militia then results from the right to bear arms.


In other words, people have a right to have weapons. This will tend to create a well-regulated militia. I read the amendment as saying a well-regulated militia is necessary for our security, and thus the people should have the right to have weapons for the purpose of assuring that well-regulated militia.


Since the only militia we now have is the national guard, the amenment has become an anachronism. It appears (as I browsed through the rest of his reasoning) Garwood is countering this by saying that the founders considered the body politic in general to be the "militia" and this is what the amendment refers to rather than to any "select" militia.


What do you think, HDPM?


By the way, I am still folding K-3 against a button raise.


:-)

The Emerson opinion deals at some length with the language of purpose in the 2d Amendment. There are some very good and well-reasoned arguments why that language is not a limitation. Also see a Volokh article in the link I posted previously. He quotes various state constitutional provisions from the same era that had such language, and shows that the language was not meant as a limitation.


The dissent was only partial, but was about whether the RKBA is an individual right. The dissent was not a good example of legal reasoning. It was transparent that the judge had strong emotional and political feelings against the majority opinion. He didn't support his positions nearly as well as the majority.


You are correct, the court held that the RKBA was individual but not unlimited. If the Supreme Court decided similarly, there would be a whole lot of litigation to see what laws were OK and which ones weren't. Laws prohibiting felons from having weapons will be upheld. Half of California's gun laws will be challenged and overturned under such analysis I would think.(The various "assault weapons" laws particularly.) I think under the majority opinion, citizens have the right to own and carry military weapons. This may startle the soccer moms, but might be interesting. I just want the handy HK MP-5k in the briefcase concealment holster thing. Full-auto firepower at the press of a button in an easy-to-carry professional looking briefcase. Wouldn't even scare the soccer moms in their mini vans. [img]/images/smile.gif[/img]

You posted the answering your question when I was writing the one above. Good or bad timing I suppose. Actually there are still militias under many states' laws. I don't mean the crackpot ones who are white supremacists or the people who file liens on judges' houses. But to this day in Idaho, a lot of citizens are members of the unorganized militia by state statute. (I don't have it handy to quote.) Other states have similar laws. The National Guard is not the militia.


Garwood's sentence makes perfect sense. :-) I agree with him, but to highlight the reasoning, let's add some language of purpose to another amendment and see how we interpret it. What if the 1st Amendment said, "Well-reasoned public debate being necessary to the protection of liberty in a free society, Congress shall make no law..." Would that mean that only well-reasoned public debate would enjoy 1st Amendment protection? No. All forms of speech set forth in the 1st Amendment would enjoy protection. Also, the 2nd Amd says "the right of the people." It does not say the right of the militia or the states. "People" means individuals under every decision on the Constitution.


Or try this, chop the 2d Amendment into two pieces, one the clause dealing with well regulated militias and one the clause dealing with the right of the people. Have each as a stand-alone amendment. Which one articulates a right?


I am going to start playing K-3o headsup so I can win enough money to buy all the cool military weapons I just know I have a right to now.

Well, I'm not HDPM, but the United States Code is explicit as to who makes up the Militia.


USC-10:

Section 311. Militia: composition and classes


(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.


(b) The classes of the militia are -


(1) the organized militia, which consists of the National Guard and the Naval Militia; and


(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.


Explicit in the code is the fact that everyone who's NOT in the National Guard is a member of the unorganized militia. The text of the Second Amendment speaks of "Regulation", not "Organization." Both terms are very specific and have definite meanings within the linguistic contexts of the time of the authoring of the Constitution and it's Amendments. "Regulation", is a term used to describe adequacy or precision of function. A well regulated clock is one that keeps accurate time, as an example.


Given the means of assembling the Militia when the Constitution was drafted, it follows that the Militiamen are required to be able to perform their functions when so assembled. While there is some debate as to the actual effectiveness of the various Militiae employed during the Revolutionary War, the fact remained that they were assembled from the citizenry who brought their own arms and kit to duty. The fledgling Nation simply didn't have the industrial base to provide arms for each and every person called upon to fight, as such, the right to keep and bear those arms was guaranteed so that when called, the Militiamen could at least put on the show of providing for the security of the Nation.


Jeff