You sure have given me a lot to chew on, Ed.


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.

I don't recall that but to me I am not sure what they will do. They may find
it an individual right but I think they are just as likely not to. You do
know that I think there is an individual right simply by my reading of the
amendment and my knowledge of early American history.



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?

I reject your argument that because certain courts had a position on the
amendment that holds any weight. BTW, that's a logical fallacy of appealing
to authority. Numbers do not make one right. I also will add that my motives
are honest and I know that I can't say that about everyone else in legal
system. If I thought that the meaning and intention of the 2nd amendment was
to protect the right to hunt or the right of militias to be armed; I would
take that position. But after analyzing the facts, there is no way for me to
believe that was why that amendment was written. It simply is not rational
to believe that is why the amendment was written. As to why I think I know
better than the judges, that's because I understand how judges think and
act. As a political scientist I understand the politics of the legal system
and into the way judges make decisions. In this debate most on the "anti"
side have an anti gun agenda. In pursuing this agenda through the courts
it's clear that the only way to prevail is for the courts to accept the idea
that American citizens don't have any natural or legal right to have arms.
If you accept that the people don't have this right then it opens the door
to disarm the public, which is what the anti gun side would like to do. If
there wasn't an active, well-financed, group wanting this outcome we
wouldn't be debating the meaning of the 2nd amendment in the first place.


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.

The two "interested" sides in this issue are the pro gun groups/individuals,
who want there to be an individual right to bear arms, and the anti gun
groups/individuals who don't want there to be an individual right to bear
arms. Then there are those of us like me who are neither. We look at the
amendment itself and at the founding fathers and at what they wanted and
what the amendment actually says and was meant to do. Without having a dog
in the fight, and after looking at a very simple and understandable
amendment, my reading and understanding of it is that it was designed to
protect the people from being arbitrarily deprived of their weapons by an
overzealous or tyranical government. That is my opinion of what the
amendment is for and is why it was put there to begin with. I think this
because I am able to read and comprehend the English language, and I am
rational. Consequently, I don't need any authority to tell me what the
amendment means. And I don't acknowledge any superiority of brainpower or
knowledge that any court or judge has that means I need their help to
comprehend what the 2nd amendment means.



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.

Good, because we can argue over those issues until the cows come home and
that's very boring.

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.

I guess why we didn't discuss it much is because there was strong agreement
in the legal dept. that the 14th amendment applies pretty much everywhere
and that while it has not been applied that way so far, it's only a matter
of time before it will be. Incrementally, it's being applied everywhere. In
time there won't be any debate because it'll be broadly accepted as the way
things are.



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.

No need to argue that even though in the long run Hugo's view will
eventually be the accepted one in law. It's only an issue because of the
regressive, ultra conservatives who don't want to accept the role the
government has taken in our society. As usual the conservative justices are
trying to bring the country back to the ideal days when women were chattel
and blacks were private property. They will go the way of the passenger
pidgeon but it's taking a long time for them to go, unfortunately.


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.

The conservative justices are indeed being hoisted on their own petard.
Their right wing political views are putting them in a tough spot. Usually
when this happens they come up with some convoluted reasoning to do what
they wanted to and still come up with a tricky way of justifying it. Logical
legal reasoning isn't going to cut it. Life is hard when you have a set of
hard and fast rules and a situation comes up that they don't have answers
for. It would be so much easier if they weren't such idealogues. But then if
they weren't they wouldn't have gotten the job to begin with.


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.

Yes, it's tough isn't it? If you say the 2nd amendment guarantees the right
of the citizens to arms that makes them a threat to the safety of everyone
in government. How do you come up with a reasoning that says people can have
guns but not the kind or enough of them to threaten the government? It would
be so much easier to say the 2nd amendment denies the public the right to be
armed. But then the consititution really makes it so clear that it does mean
that. What to do. What to do. If they were really honest arbiters of the
constitution rather than politicos the decisions would make a lot more sense
and would be a lot easier to make. They're going to **** off a lot of people
on this one no matter what they do. Maybe some of them will quit.



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.

Of course they can't just make it a yes or no decision. That's because they
are interested in so much more than simply what does the constitution says.
If that was all that mattered a simple yes or no would be easy. It's because
they are more interested in all the other issues than what the constitution
means that makes it difficult. In my view, all they are supposed to do is
worry about the constitutionality of a matter and not about the resulting
fallout from what they decide. The don't have the guts to just say what the
constitution says and they all have political agendas to promote that makes
deciding this case hard.


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.

Yes, the courts are still dragging their feet on this one. Most things have
already been decided in favor of applying the 14th to the states. How much
longer do you think it's going to take until Black's universal application
is the rule? I don't think it's a matter of if. It's a matter of when, which
is why I said that there isn't really a debate. It's going one way and one
way only and that's how it will be. It's just taking a long time to get
there.


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.

That's the way of the law. Nothing changes until it absolutely has to and
every nit has to be argued over endlessly. If it wasn't done like that look
how many less billable hours attorneys would be entitled to. It takes
forever to resolve legal issues and even when you think it's finally decided
someone decides to argue it some more. No wonder lawyers bill by the hour
instead of the job.

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.

I'm less interested in the briefs and the legal arguments because the
opposing sides are so partisan. They will make any argument over any and
every issue if they think it will help them win. They don't care about what
the constitution really means because all they want is to advance their
political goal. It's like a divorce case were all the sides care about is
getting the most money and don't give a **** about what's fair. I'm about
what is right. I think that is the nub of our debate. I'm interested in an
outcome that is right according to the actual wishes of the founding fathers
and you are more interested in who comes up with a winning legal argument in
the current proceeding. Those are quite different, not wrong just different.


If you would repost some of the links to those legal briefs I wouldn't mind
taking a look at them.

Ed Huntress