"Hawke" wrote in message
...

'Time to dig into those briefs for the petitioner, Hawke.


I would Ed, but I already know what their argument is and I'm not
buying
it.
I'm saying no sale.

That's too bad. Well, you can join the grumblers out in the street while
the
case is decided, then. Much of your argument is simply wrong, and the
parts
that are right are well-known to the petitioners and the respondents. The
case will be decided at the top of the steps with all of your argument as
a
backstory that's been around for many decades and that's already been
presented in the briefs.d I'll be watching it with great interest.




You can join in with the anti people side of the argument if you like.
There
will be arguments that you can go along with making that claim. The ACLU
and
the government will be glad to have your support. But I tell you what.
Watch
for the court's holding when they decide the case. Unless they duck the
question it's going to come out one of two ways; either the 2nd amendment
was intended to protect the right of the public to keep and bear arms, or
it
doesn't protect that right. All the briefs and all the legal arguments
aside, that is what the debate is about, and as I said, there really isn't
a
legitimate debate. Because if the founding fathers didn't believe that the
right to bear arms needed protecting then they wouldn't have believed that
the right to free speech or of the press or to assemble would either.

If you noticed I already predicted they will find for an individual right,
Hawke, back in one of the first messages I posted on the subject.

However, to say that it "isn't a legitimate debate," when six Circuit Courts
of Appeals have decided the right is a collective one and two Circuit Courts
of Appeals have decided it is an individual one, suggests that you believe
you know the truth and they don't -- or, as you have suggested, that your
motives are honest and theirs are dishonest. More likely, it's a matter of
them knowing far more about the history and the law involved (or their law
clerks do) and deciding on the basis of accepted jurisprudence. "It's just
that I know when one side has a case and the other doesn't," you say. How
much do you know about the case that has been made, anyway? What have you
studied that convinces you that you know better than the judges on six major
federal courts what is a case, and what isn't?

FWIW, I don't think you "know all the arguments" favoring the
militia/collective right idea, despite what you said. But I've been trying
hard not to get into a debate with you about this because I don't really
care what arguments you might make. What I'm interested in, and what people
who care about the 2nd should be interested in, is not the fortress of
self-fulfilling arguments gun owners have built to convince themselves, but
rather what arguments are being made by the petitioner and the respondent in
the case at hand, which promises to be the most significant 2nd Amendment
case in modern history. It's going to be a close call, possibly a mixed
result, and an important window on the current state of the scope of
"liberties" that will be adjudicated in substantive due process cases. It
has a lot of import and it could have a lot of consequences for all of us,
even beyond the question of the 2nd itself.

It's very tough to restrain myself from arguing with many of your
assertions. g And you're bringing up incorrect arguments in some side
issues. I had a list of citations for you concerning abortion in the Roe
case, but I deleted it because I'm not in a mood to argue Roe again. I also
had a list of quotations from Amar and others concerning the status of
substantive due process and incorporation, but I deleted that, too.

But we can dismiss a couple of these issues without getting into legal
citations. First, what you're said he

That's funny because when I was in graduate school none of my professors,
who were all lawyers, mentioned anything about the 14th amendment being in
question.

....is a very strange claim when you consider that the question of
incorporation still comes up all the time in court cases, and it is still
*selective incorporation*, which has yet to be applied to the 3rd Amendment,
the 5th Amendment, the 7th Amendment, and the ban on excessive bail and
fines in the 8th Amendment. Of course, it has not been applied, either, to
the 2nd Amendment, and it won't be applied to the 9th or 10th Amendments,
for logical reasons.

We could get into how Hugo Black proposed an all-encompassing incorporation,
which was rejected by successive Courts, but we won't. d8-) The fact is that
it is still a controversial issue; the limits of substantive due process are
still in flux; and Scalia, among others, never misses an opportunity to
stick a knife into the heart of substantive due process in its entirety.

There is some good thought in the petitioner's brief and the amici briefs. I
was hoping someone would read them and want to discuss them, but, as I said,
I've heard the standard pro-gun arguments you're making for decades and
there's nothing more left to be said about them. As far as I know, you
haven't filed a brief, so it has little to do with the case at hand. If you
had read the respondent's brief, you might have remarked with some surprise
that the attorneys for Heller have *explicitly* said they aren't asking the
Court to decide on incorporation. The case was designed specifically to
avoid it. Why? Because it's still a controversy; because the conservative
justices who are likely to be sympathetic to the basic case for an
individual right are the same ones who reject the substantive due process
extensions; and because a favorable ruling on the 2nd could well be the
result of reaching into those extensions, the very substantive due process
issues (under the 5th Amendment) that the respondent would like to have
working in their favor, while not getting into the risky territory of the
other due process issues (under the 14th Amendment) that could wind up
shooting them in the foot.

This case is far from being simple. The "yes/no" question you pose is a
chimera. You could get a "yes," and it could be rendered meaningless (except
as a philosophical point) if the Court applies a low level of scrutiny,
allowing "compelling state interest" to be broadly defined and leaving gun
control laws standing, with the door left wide open for many more. You could
get a "no, but," in which the individual right is equivocal (being based on
one reasonable conclusion drawn from Miller, for example, that there is some
kind of individual right but that it only applies to those arms an
individual needs for serving in a militia), but it could wind up producing
the ironic result of striking down any impediments to owning machine guns.

These are outliers in the range of possibility, but they illustrate that the
"yes/no" question is a problematic one. "Yes/no" isn't all that's being
decided. More relevant, it may not even be the significant issue in terms of
gun-law consequences.

That was less than five years ago BTW. If you're referring to the
court expanding federal power over the states by way of the due process
clause there may be some state arguments about what the federal government
can or can't do, but the court has allowed more and more federal control
over the states all the time. It's only a matter of time before the
"power"
of the individual states is really nothing more than a fiction because the
federal government is more or less now a national government with states'
authority being merely window dressing. The 14th amendment is just the
vehicle for making this a reality.

If you are referring to another debate on the 14th then I'd ask that you
refresh my memory as to what you mean.

Well, you've modified that somewhat from what you originally said, and which
I was referring to:

I'm familiar with Gitlow, and the application of the 14th amendment to the
states is not a yes or no. It's a yes. The interpretation is that the
amendment applies the supremecy of the federal government over the states.
All the time. That doesn't mean there aren't some lawsuits that the states
win in disputes with the federal government. But the court's ruling on
the14th amendment means that the constitution applies everywhere all the
time.

Not "everywhere." Not at all, so far, on the Amendments I refer to above.
The active doctrine is that incorporation is selective, and that it applies
only to individual issues that have been decided by the Court.

The point is that there is no standing doctrine that says "yes," except as
the Court decides each issue. There is no "yes" on habeas corpus. There is
no "yes" on grand juries. And there is no "yes" on the 2nd Amendment. The
thing about the 2nd is that there are interpretations of it that could lead
to an individual right, but not to incorporation. That's why the respondents
in this case specifically chose to avoid the issue.

Now, if you want to take issue with this and have the last word, go for it.
I'm not interested in arguing the 2nd Amendment in terms that were laid out
20 or 30 years ago. I've done that dozens of times. I am interested in the
case at hand and the way it's being argued. But that's all in the briefs.
How the Court reacts to it will be in the oral argument. The rest is just
background noise.

--
Ed Huntress