Debate on gun control should ask whether Congress has power to regulate

[jimnyc]

Interesting read. I think we'll see a lot of this before the supreme court down the road. The anti-gun nutters will have to be satisfied with a few small changes, to appease them, but not much more. I don't even think they should get that much. And just as stated once again in this article, it won't change anything anyway, like it hasn't before.


President Obama called for more gun control in his State of the Union address last night. The effectiveness of his proposals have been the subject of heated debate. But both sides are missing the larger question: Does Congress even have the right to regulate or ban guns?

Gun control has become one of the preeminent battles of 2013. During a press conference last month, in which he was surrounded by children, President Obama urged Congress to ban “assault” (automatic) weapons, limit magazines to 10 bullets, and introduce universal background checks for all firearm buyers. And last night, Mr. Obama again called for this regulation in his State of the Union address. Naming those affected by gun violence, he asserted to a cheering, standing crowd: "They deserve a vote."

Across the country, Americans are debating the effectiveness of Obama's gun-control proposals. Commentators on the left argue that automatic weapons and high-capacity magazines aren’t necessary for home defense or hunting. On the right, the president’s critics say limiting guns won’t end violence and point out that no matter what laws Congress passes, criminals will still find ways to be well armed. The proposed legislation, they contend, simply would put law-abiding citizens at a disadvantage.

Both sides are missing the larger question in this debate: Does Congress even have the right to regulate or ban guns? Where does Congress derive the power to prohibit ownership or manufacture of certain weapons or magazines? It seems that many gun-rights advocates and opponents have forgotten their basic civics in assuming that Congress can act as long as 51 percent of the members agree.

The Second Amendment of the Constitution clearly states: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” And as James Madison wrote in Federalist Paper No. 45, “The powers delegated...to the Federal Government are few and defined.” Those essays were written to promote ratification of the Constitution and assure states of its limits on federal power.

Madison further explained that these powers would “be exercised principally on external objects such as war, peace, negotiation, and foreign commerce.” The states, he assured his readers, retained “numerous and indefinite” powers extending to “the lives, liberties, and properties of the people,” including “internal order.” The Supreme Court has consistently upheld the individual’s right to bear arms over several decades and court cases.

Such history lessons are usually dismissed by modern politicians.

Of course, Congress has passed laws that ban guns in the past, and many experts feel the courts have upheld the legality of some regulation and restriction of gun ownership. The 1994 “assault weapon ban,” which expired in 2004, is a prime example. But the fact that the federal government has taken an action in the past does not itself answer the question about the authority for, or legitimacy of, the action. In 1942, more than 100,000 Japanese Americans were placed in internment camps. Few would argue that this was constitutional or sets a valid precedent for a similar measure today.

In the landmark case District of Columbia v. Heller (2008), the Supreme Court recognized an individual right to bear arms, but also opined in dicta that certain “longstanding prohibitions” and regulations remained good law. The Court specifically mentioned laws prohibiting felons or the mentally ill from carrying weapons.

The Heller majority, however, failed to explain the fount of federal authority for these prohibitions. Undoubtedly, the common law as received from Britain at the time of the ratification of the US Constitution recognized and permitted such reasonable restrictions on the right to bear arms. Such a historical understanding could support some modern circumscribing of the right to bear arms as constitutionally valid.

http://news.yahoo.com/debate-gun-control-ask-whether-congress-power-regulate-165053730--politics.html

[jimnyc]

Just like the fine gentleman from Newtown said - we have a thing called due process. Legislation is not the due process. If they want to take away guns, rights and/or make changes - take me to court. But I suppose we'll have to wait for the dolts to make/change law before it can be brought to SCOTUS.

[Surf Fishing Guru]

Interesting read. I think we'll see a lot of this before the supreme court down the road.

Recently I have had some frustrating discussions on other boards with some very ardent gun control supporters and they, like many of our elected officials believe it is still 1994.

The left has always been ignorant or dismissive of the Constitution and the current crop of anti-gunners are even more so. It is the usual emotional argument on steroids now . . .

I have always (since 1993) debated from the philosophical / legal / Constitution supported side and have never met with so much resistance to even discussing the topic of legislative legitimacy and how Congress is restricted from writing what's being advocated now . . . The statement from your article, "It seems that many gun-rights advocates and opponents have forgotten their basic civics in assuming that Congress can act as long as 51 percent of the members agree" really struck a chord with me.

The only nit I have to pick with your article is the statement that Heller said "that certain “longstanding prohibitions” and regulations remained good law. The Court specifically mentioned laws prohibiting felons or the mentally ill from carrying weapons." Actually Heller made all those restrictions suspect and lower federal courts have not taken Heller's "list" as any type of examples of what restrictions are allowed. That passage which anti's have glommed on can not be read and understood divorced from its footnote (#26): "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive."

The Court characterizing those regulatory measures as "presumptively lawful" has opened them to challenge, even restrictions that pretty much everyone accepts as reasonable if not desirable restrictions like the disablement of gun rights for felons. Since Heller, lower federal courts are now reassessing the constitutionality of all gun laws that come before them, even "long-standing prohibitions on the possession of firearms by felons":




"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) (internal citation removed)




Of course felon disablement of gun rights were/are sustained because they are founded on legitimate exercises of government authority which have been upheld many times using a wide range of legal reasoning under constitutional and common law.

Now, here's where Heller's effects will be seen; gun control laws that were upheld by citing the "militia right' or reasoned upon the theories that the 2nd does not secure an individual right but only guarantees the right of states to organize its own militias, WILL BE STRUCK DOWN.

Heller ripped the support out from under thousands of federal, state and local gun control laws by invalidating the legal reasoning of the hundreds of lower federal and state court decisions that have sustained them.

Things are going to get interesting but I, like the article writer, wish the conservatives would begin arguing the "legitimate legislative authority" points . . .

BUT!

The problem is the anti-abortion and anti-gay rights segment of the conservative side will squash that because it harms them. They can't allow political conservatives (focused on the Constitution) to frame the argument because when it comes down to it and the beliefs about what government's impact should be in the lives of Americans, the social / cultural religious right is as dangerous to liberty as the dismissive of the Constitution leftist gun grabber . . .

[Little-Acorn]

Now, here's where Heller's effects will be seen; gun control laws that were upheld by citing the "militia right' or reasoned upon the theories that the 2nd does not secure an individual right but only guarantees the right of states to organize its own militias, WILL BE STRUCK DOWN.

Heller ripped the support out from under thousands of federal, state and local gun control laws by invalidating the legal reasoning of the hundreds of lower federal and state court decisions that have sustained them.


Most of the gun decisions and laws I have seen, don't mention militias. The ones that mention any precedent at all, usually say that since US v. Miller (1939) showed the National Firearms Act (1934) constitutional, then this newer law or decision (whatever it is) is also constitutional.

No support has been ripped out from any of these laws or decisions. And won't be, until US v. Miller has been overturned.

Note that the paranoid gun-haters have bent over backwards to avoid EVER bringing US v. Miller's tenets before the Supremes. Ever.

If it ever is, overturning shouldn't be difficult. It was decided when no one showed up for the defense at all for the Supreme Court case in 1939. The anti-gun prosecution took advantage of this windfall, and recited a number of lies into the record (the 2nd protects only military-style weapons, etc.) which the Justices rubber-stamped into an Opinion.

Trust that the gun-haters will do everything they possibly can, to keep US v. Miller as far from the Supreme Court as they can, forever.

[Surf Fishing Guru]

No support has been ripped out from any of these laws or decisions. And won't be, until US v. Miller has been overturned.

Miller does not need to be overturned, it does no harm to the individual rights interpretation.

Heller's reaffirming of the individual right was not novel 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 Cases v. U.S, 131 F.2d 916 (1 st Cir. 1942) and U.S. v. Tot, 131 F.2d 261 (3 rd Cir. 1942) respectively . . . Cases especially dismissed and ignored Miller to arrive at the "militia right" interpretation.

Nearly every gun control law challenged since then, including all the late 60's BS, federally and in the states, has been upheld citing Cases or Tot or their progeny (Warin, Stevens, Oakes, Hale, Johnson, etc.). The "state's right" and "militia right" and general "collective right" was the law of the land until 2001 when Emerson was decided. All that "reasoning" was in contradiction of SCOTUS (including Miller) and the Court's reluctance in granting cert to 2nd Amendment cases let that persist (although I would not have liked the Warren Court to hear a gun case). SCOTUS has never embraced any part of these mutated interpretations.

In states, especially ones like California and NJ with no RKBA provisions in their own constitutions who lazily relied on these 1942 federal "collective right" holdings to uphold their own state gun control schemes are very infirm. In NJ, their entire gun control purchase permit system and a boatload of other restrictions are upheld by Burton v Sills (1968) which sustains those laws citing Tot, that the 2nd only protects a right of the states and that even if the 2nd protects a right possessed by an individual citizen, the 2nd has no impact on state legislation . . . Well, BOTH of those foundations for upholding the law are knocked away; the entirety of NJ's gun laws are resting on sand.

The same condition exists in California. as I said, the state courts of California and the 9th Circuit have just lazily relied on those 1942 decisions to dismiss claims of individuals and the 9th's decision in Hickman v. Block, 81 F.3d 98 (9th Cir. 1996) was the controlling law propping up California's gun control schemes against all challenges.

After Heller the 9th held:


". . . we must first decide whether Heller abrogated Hickman. It did. Hickman rested on our conclusion that the Second Amendment protects only a collective right; Heller squarely overruled such conclusion. . . . Thus the basis for Hickman’s holding has evaporated, and the opinion is clearly irreconcilable with Heller. In such circumstances, we consider our prior decision abrogated by higher authority."

Nordyke v King, (April 20, 2009)




This decision above was immediately set aside for an en banc hearing, postponed till after McDonald (with the need to wait for the decision on incorporation offered as the reason why). The case was re-heard but petered out and was more or less settled out of court with no real guiding legal determination so this ruling nor its reasoning has not been applied to Hickman v Block by the 9th.

The government recognizes it is on the losing side of this entire argument. As shown in US v Barton, (quoted in my previous post) Heller DOES call everything into question and if I were a hair-on-fire conspiracy theorist I would say that all these current hysterical gun control demands are really intended to divert attention and funds from gun rights group's attacks on existing law.

[Surf Fishing Guru]

The anti-gun prosecution took advantage of this windfall, and recited a number of lies into the record (the 2nd protects only military-style weapons, etc.) which the Justices rubber-stamped into an Opinion.

That's not exactly true. McReynolds wrote a poorly crafted opinion but it wasn't a rubber stamp that the government wanted. In the eyes of the feds, Miller had more to do with propping up FFA-38 and the desired restrictions on handguns than NFA-34 and sawed-off shotguns and they wanted a much different holding. READ THIS (http://www.kc3.com/pdf/PECULIAR_STORY_US_V_MILLER.pdf) (221kb pdf) Which is why they so quickly worked to get Cases and Tot to friendly Circuits and get the "collective right" holdings they didn't get in Miller. The first round of that constitution destroying court packing was done in the New Deal era and it is being attempted again now, shortly after a hostile to them decision was handed down in Heller (and McDonald).

Miller's multi-pronged protection criteria works fine I think for this day and age and the realities that there is no legal structure to organize, train and deploy the citizens as militia.

Now I'm not saying that the right itself is dependent upon the militia in any way, but like it or not we are forced to appeal to the 2nd Amendment for the protection of the entire fundamental right and along with that comes the "baggage" of the object of the Amendment and how that has influenced the protection of the right.

That object, as maintained in Aymette and reiterated in Miller, was to preserve the general militia concept and that was used to establish the protection envelope to those arms that are useful to a militia force in the types of engagements they would be expected to face. Arms that fail that "test" then can be claimed to be "dangerous and unusual" and government can argue that a power should be afforded to restrict those arms.

Everything is determined by the type of arm. According to Miller, to be protected by the 2nd Amendment the arm must be of the type:





that constitute the ordinary military equipment and/or
that can be employed advantageously in the common defense of the citizens. and/or
in common use at the time



If the type of arm meets any one of these criteria the right to keep and bear that weapon must be preserved and the authority claimed by government to restrict its possession must be repelled.

If the arm fails ALL of that criteria then it could be deemed dangerous and unusual and be restricted.



Trust that the gun-haters will do everything they possibly can, to keep US v. Miller as far from the Supreme Court as they can, forever.

Miller has been placed in suspended animation. The misreadings of it have been invalidated and whatever pitfalls for our side that can be found in Miller (and I never saw any significant ones) have been defused by Heller. Heller endorsed Miller's protection criterias and also showed the Court is willing to focus on just one non-military test and render a right affirming decision with its focus on "common use" for the handgun question before it in Heller. They all remain ready to be used to defeat an assault weapons ban . . .

If you want to expand gun rights beyond what is protected under the 2nd Amendment's baggage, you shouldn't look to overrule Miller, you should look to overturn Slaughterhouse and re-invigorate the privileges or immunities clause of the 14th . . . Which was the hope when SCOTUS granted cert to McDonald v Chicago over NRA v Chicago and why everybody (liberals and conservatives) got so excited.

I don't see another bite at that apple anytime soon.

[Tyr-Ziu Saxnot]

Miller has been placed in suspended animation. The misreadings of it have been invalidated and whatever pitfalls for our side that can be found in Miller (and I never saw any significant ones) have been defused by Heller. Heller endorsed Miller's protection criterias and also showed the Court is willing to focus on just one non-military test and render a right affirming decision with its focus on "common use" for the handgun question before it in Heller. They all remain ready to be used to defeat an assault weapons ban . . .

If you want to expand gun rights beyond what is protected under the 2nd Amendment's baggage, you shouldn't look to overrule Miller, you should look to overturn Slaughterhouse and re-invigorate the privileges or immunities clause of the 14th . . . Which was the hope when SCOTUS granted cert to McDonald v Chicago over NRA v Chicago and why everybody (liberals and conservatives) got so excited.

I don't see another bite at that apple anytime soon.

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I can easily see a 3rd or even 4th year second term Executive Orders massive attack by Obama upon our gun rights. At that point what does he have to lose and why wouldn't he attempt a last chance at severely limiting our gun rights and/or even outright gun confiscation?-Tyr

[cadet]

Interesting read. I think we'll see a lot of this before the supreme court down the road. The anti-gun nutters will have to be satisfied with a few small changes, to appease them, but not much more. I don't even think they should get that much. And just as stated once again in this article, it won't change anything anyway, like it hasn't before.



http://news.yahoo.com/debate-gun-control-ask-whether-congress-power-regulate-165053730--politics.html

This would go over like a fart in church.

"Hey, it's us, the people. You know, the ones that are in charge of you. We made a few small rules for you to follow, and yeah, you're breaking them. Get out."

[Surf Fishing Guru]

I can easily see a 3rd or even 4th year second term Executive Orders massive attack by Obama upon our gun rights. At that point what does he have to lose and why wouldn't he attempt a last chance at severely limiting our gun rights and/or even outright gun confiscation?-Tyr

The apple comment was about getting another case before SCOTUS predicated on protecting a right under the "privileges or immunities" clause of the 14th Amendment. The NRA case was strictly a typical "due process" appeal. McDonald was predicated on SCOTUS revisiting the Slaughterhouse Cases which for all intents and purposes stomped out the "privileges or immunities" clause of the 14th, leaving only "due process" which then requires a case by case examination and begot us "selective incorporation".

A re-invigoration of the "privileges or immunities" clause would restore the concept of fundamental rights existing without recognition in law and a general respect for the principle of liberty . . . This is why liberals were excited too about McDonald because they saw that protections of unenumerated rights (especially abortion and gay rights) would rest on a principle of liberty rather than an "invention" in law (penumbral rights).

[Tyr-Ziu Saxnot]

The apple comment was about getting another case before SCOTUS predicated on protecting a right under the "privileges or immunities" clause of the 14th Amendment. The NRA case was strictly a typical "due process" appeal. McDonald was predicated on SCOTUS revisiting the Slaughterhouse Cases which for all intents and purposes stomped out the "privileges or immunities" clause of the 14th, leaving only "due process" which then requires a case by case examination and begot us "selective incorporation".

A re-invigoration of the "privileges or immunities" clause would restore the concept of fundamental rights existing without recognition in law and a general respect for the principle of liberty . . . This is why liberals were excited too about McDonald because they saw that protections of unenumerated rights (especially abortion and gay rights) would rest on a principle of liberty rather than an "invention" in law (penumbral rights).



The playing off of rights while interesting does not address my specific question about obama's new found "increased" powers of Executive Orders.

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As currently he has usurped Congressional authority and made law by Executive fiat IMHO. Waiting for the turtle (SCOTUS) TO CATCH UP IS NO REMEDY SHOULD HE CHOOSE TO ACT EXTREMELY RADICAL IN THE FUTURE.
What if any action and by what entity can this possibility be prevented? Or is the only alternative to be civil war when he crosses that line?
These are not radical out there questions but given the current circumstances very real possibilities of FUTURE ACTIONS by him.-Tyr