"Ed Huntress" wrote in message
...
"David Moffitt" wrote in message
k.net...
"Ed Huntress" wrote in message
...
"Guido" wrote in message
...
Gunner wrote:
Or do you call Blackstone a blogger as well?
On second thoughts he does seem to be a blogger who just
happens to be a law professor.
In most instances these law professors are wrong, its only
when the courts accept their writing as correct that they do
indeed become so. Which are the precedent and opinion books
that your SC accepts?
There's a heirarchy of "recognized authorities." Regarding the Bill of
Rights, at the top of the list is the transcript of the First
Congress's
debates over the writing of the Bill. Since the Senate did not record
its
debates, we have only those of the House. And, in regard to the 2nd,
it
is
not a favorite source for defenders of the 2nd Amendment. g
The 5th Circuit Court of Appeals is making a play to establish a
broader
historical basis for interpretation of the 2nd. See the Emerson case,
5th
Circuit. It's 100 pages, heavily referenced, and an impressive piece
of
work.
"We reject the collective rights and sophisticated collective rights
models
for interpreting the Second Amendment. We hold, consistent with Miller,
that
it protects the right of individuals, including those not then actually
a
member of any militia or engaged in active military service or training,
to
privately possess and bear their own firearms, such as the pistol
involved
here, that are suitable as personal, individual weapons and are not of
the
general kind or type excluded by Miller." -- EMERSON V. US 2001 WL
1230757
(5TH CIR)
Let's complete that paragraph, Dave, for the sake of clarity:
"However, because of our holding that section 922(g)(8),
as applied to Emerson, does not infringe his individual rights
under the Second Amendment we will not now further elaborate as
to the exact scope of all Second Amendment rights."
The court sort of took a dump and then scooted away. There's a reason they
did that, which is one of the strange things about this case. And it's a
*really* strange case, although very interesting.
Having seen a number of your posts, and the quality of thinking that goes
into them, I'm going to guess that you picked that up from some pro-gun
site
and that you haven't actually read the case. You may not know, therefore,
what the conclusion was:
%%%% I have had it on disc since the ruling to use at appropriate times.
"However, for the reasons stated, we also conclude that the predicate
order
in question here is sufficient, albeit likely minimally so, to support the
deprivation, while it remains in effect, of the defendant's Second
Amendment
rights. Accordingly, we reverse the district court's dismissal of the
indictment on Second Amendment grounds."
In other words, the operation was successful, but the patient died. g
%%%% Just like in the Miller case. He also had a second ammendment right but
it did not apply in the case being heard.
There are a lot of exceptions allowed by the findings in Emerson,
including
these:
"Likewise, the Supreme Court has remarked that the right to keep
and bear arms is, like other rights protected by the Bill of Rights,
"subject to certain well-recognized exceptions, arising from the
necessities of the case" and hence "is not infringed by laws
prohibiting the carrying of concealed weapons," Robertson v. Baldwin,
17 S.Ct. 326, 329 (1897), or by laws "which only forbid bodies of men
to associate together as military organizations . . . to drill or
parade in cities and towns unless authorized by law." Presser v.
Illinois, 6 S.Ct. 580, 584 (1886).
(Gunner may find that last note interesting, in another context.)
Anyway, it was a hell of a lot of work to produce nothing but obiter dicta
(that's opinion that's incidental to the case, and therefore not binding,
nor does it stand as precedent), as judge Robert Parker wrote in his
"specially concurring" opinion in the case:
"I concur in the opinion except for Section V. I choose
not to join Section V, which concludes that the right to keep
and bear arms under the Second Amendment is an individual
right, because it is dicta and is therefore not binding on us
or on any other court. The determination whether the rights
bestowed by the Second Amendment are collective or individual
is entirely unnecessary to resolve this case and has no
bearing on the judgment we dictate by this opinion. The fact
that the 84 pages of dicta contained in Section V are
interesting, scholarly, and well written does not change the
fact that they are dicta and amount to at best an advisory
treatise on this long-running debate."
%%%% Golly Gee. One judge didn't join the decision. Now how often does that
happen?
Judge Parker is taking one hell of a shot at his compadres, calling their
84
pages of scholarly work irrelevant to the case. g
%%%% Judges do disagree with each other at times. ;o)
In other words, the case will be interesting and useful advisory
information
for future cases, by this court or any other court, but it doesn't have
the
weight of precedent.
%%%% Only time will tell.
It's one more frustration in the attempt to get binding and precedential
rulings on the 2nd Amendment.
%%%% The Supremes do not want to touch it with a sterlized crowbar.
--
Ed Huntress
(remove "3" from email address for email reply)
|