Re: Alabama Constitution - RKBA - 1819

On May 28, 11:20 pm, The Lone Weasel
<leeh...@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx> wrote:

On May 28, 10:34 pm, JohnJohnsn <TopCop1...@xxxxxxxxx> wrote:

On May 28, 10:02 pm, The Lone Weasel
<leeh...@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx> wrote:

On May 28, 6:22 pm, Johnny Lane "Nuthouse" Johnson
<TopCop1...@xxxxxxxxx> wrote:

...admit you simply obey him (SCotUS Majority Opinion decision in `D..C. v. Heller')
like a little boy.

Are you tacitly admitting that you obey ONLY the laws you agree
with???

THAT explains your 1980 "Driving While Intoxocated Liquor" conviction!

Maybe that's why you get all spasmy when somebody calls you on your
bullshit, eh Johnny?

Why do you claim _I_ get "spasmy" because _YOU_ are an alcoholic???

Are you NUTS, or just drunk again?

I spent a night in jail, while you spent weeks in treatment, maybe
months.  I got deferred adjudication, finished my probation and
unfortunately my probation officer forgot to send my records to
Austin, and thanks to your multiple postings of a bogus public record,
I got mine straightened out.  The record shows that my finding of
guilt was set aside in 1981 and the case was dismissed.

And it's still on the books, so it's not "bogus."

Neither is:

"That's right, I was.  Amazingly, even though I was stopped several
 times while completely blitzed, I got away with it every time EXCEPT
 the time I ran off the road and rolled my car."

"I used to be proud of that.  Now I'm just surprised to be alive,
 and wildly lucky I didn't kill anybody; lucky for them too."
</quote>
--Weasel Lee Douglas "DWI Dougie" Harrison

Nor is:

"When the judge asked I just *admitted my guilt*.  She assigned
the usual classes and probationary terms, and though I attended
all the classes I stupidly kept drinking and driving for years."
--The Lone Weasel <lonewea...@xxxxxxxxx> in talk.politics.guns

Now, back to MODERN gun law:

<excerpt>

Miller reversed the decision of the district court and "remanded for
further proceedings." Id. at 820. We believe it is entirely clear that
the Supreme Court decided Miller on the basis of the government's
second argument-that a "shotgun having a barrel of less than eighteen
inches in length" as stated in the National Firearms Act is not (or
cannot merely be assumed to be) one of the "Arms" which the Second
Amendment prohibits infringement of the right of the people to keep
and bear-and not on the basis of the government's first argument (that
the Second Amendment protects the right of the people to keep and bear
no character of "arms" when not borne in actual, active service in the
militia or some other military organization provided for by law").
Miller expresses its holding, as follows:

"In the absence of any evidence tending to show that possession or use
of a 'shotgun having a barrel of less than eighteen inches in length'
at this time has some reasonable relationship to the preservation or
efficiency of a well regulated militia, we cannot say that the Second
Amendment guarantees the right to keep and bear such an instrument.
Certainly it is not within judicial notice that this weapon is any
part of the ordinary military equipment or that its use could
contribute to the common defense. Aymette v. State of Tennessee, 2
Humph., Tenn. 154, 158." Id. at 818 (emphasis added).

Note that the cited page of Aymette (p. 158) is the page from which
the government's brief quoted in support of its second argument (see
text at call for n.16 supra).(18)

Nowhere in the Court's Miller opinion is there any reference to the
fact that the indictment does not remotely suggest that either of the
two defendants was ever a member of any organized, active militia,
such as the National Guard, much less that either was engaged (or
about to be engaged) in any actual military service or training of
such a militia unit when transporting the sawed-off shotgun from
Oklahoma into Arkansas. Had the lack of such membership or engagement
been a ground of the decision in Miller, the Court's opinion would
obviously have made mention of it. But it did not.(19)

Nor do we believe that any other portion of the Miller opinion
supports the sophisticated collective rights model.

Just after the above quoted portion of its opinion, the Miller court
continued in a separate paragraph initially quoting the militia
clauses of article 1, § 8 (clauses 15 and 16)(20) and concluding:

"With obvious purpose to assure the continuation and render possible
the effectiveness of such forces [militia] the declaration and
guarantee of the Second Amendment were made. It must be interpreted
and applied with that end in view." Id. at 818.

Miller then proceeds to discuss what was meant by the term "militia,"
stating in part:

"The signification attributed to the term Militia appears from the
debates in the Convention, the history and legislation of Colonies and
States, and the writings of approved commentators. These show plainly
enough that the Militia comprised all males physically capable of
acting in concert for the common defense. . . . ordinarily when called
for service these men were expected to appear bearing arms supplied by
themselves and of the kind in common use at the time.
. . .

"The American Colonies In the 17th Century," Osgood, Vol. 1, ch. XIII,
affirms in reference to the early system of defense in New England-

"In all the colonies, as in England, the militia system was based on
the principle of the assize of arms. This implied the general
obligation of all adult male inhabitants to possess arms, and, with
certain exceptions, to cooperate in the work of defence.'" Id. at 818
(emphasis added).

"The General Court of Massachusetts, January Session 1784 (Laws and
Resolves 1784, c. 55, pp. 140, 142), provided for the organization and
government of the Militia. It directed that the Train Band should
'contain all able bodied men, from sixteen to forty years of age, and
the Alarm List, all other men under sixty years of age, * * *.'" Id.
at 819 (emphasis added).

These passages from Miller suggest that the militia, the assurance of
whose continuation and the rendering possible of whose effectiveness
Miller says were purposes of the Second Amendment, referred to the
generality of the civilian male inhabitants throughout their lives
from teenage years until old age and to their personally keeping their
own arms, and not merely to individuals during the time (if any) they
might be actively engaged in actual military service or only to those
who were members of special or select units.

We conclude that Miller does not support the government's collective
rights or sophisticated collective rights approach to the Second
Amendment. Indeed, to the extent that Miller sheds light on the matter
it cuts against the government's position. Nor does the government
cite any other authority binding on this panel which mandates
acceptance of its position in this respect.(21) However, we do not
proceed on the assumption that Miller actually accepted an individual
rights, as opposed to a collective or sophisticated collective rights,
interpretation of the Second Amendment. Thus, Miller itself does not
resolve that issue.(22) We turn, therefore, to an analysis of history
and wording of the Second Amendment for guidance. In undertaking this
analysis, we are mindful that almost all of our sister circuits have
rejected any individual rights view of the Second Amendment. However,
it respectfully appears to us that all or almost all of these opinions
seem to have done so either on the erroneous assumption that Miller
resolved that issue or without sufficient articulated examination of
the history and text of the Second Amendment.

C. Text

We begin construing the Second Amendment by examining its text: "[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." U.S. Const. amend. II.

1. Substantive Guarantee

a. "People"

The states rights model requires the word "people" to be read as
though it were "States" or "States respectively." This would also
require a corresponding change in the balance of the text to something
like "to provide for the militia to keep and bear arms." That is not
only far removed from the actual wording of the Second Amendment, but
also would be in substantial tension with Art. 1, § 8, Cl. 16
(Congress has the power "To provide for . . . arming . . . the
militia. . ."). For the sophisticated collective rights model to be
viable, the word "people" must be read as the words "members of a
select militia".(23) The individual rights model, of course, does not
require that any special or unique meaning be attributed to the word
"people." It gives the same meaning to the words "the people" as used
in the Second Amendment phrase "the right of the people" as when used
in the exact same phrase in the contemporaneously submitted and
ratified First and Fourth Amendments.

There is no evidence in the text of the Second Amendment, or any other
part of the Constitution, that the words "the people" have a different
connotation within the Second Amendment than when employed elsewhere
in the Constitution. In fact, the text of the Constitution, as a
whole, strongly suggests that the words "the people" have precisely
the same meaning within the Second Amendment as without. And, as used
throughout the Constitution, "the people" have "rights" and "powers,"
but federal and state governments only have "powers" or "authority",
never "rights."(24) Moreover, the Constitution's text likewise
recognizes not only the difference between the "militia" and "the
people" but also between the "militia" which has not been "call[ed]
forth" and "the militia, when in actual service."(25)

Our view of the meaning of "the people," as used in the Constitution,
is in harmony with the United States Supreme Court's pronouncement in
United States v. Verdugo-Urquidez, 110 S.Ct. 1056, 1060-61 (1990),
that:

"'[T]he people' seems to have been a term of art employed in select
parts of the Constitution. The Preamble declares that the Constitution
is ordained and established by 'the People of the United States.' The
Second Amendment protects 'the right of the people to keep and bear
Arms,' and the Ninth and Tenth Amendments provide that certain rights
and powers are retained by and reserved to 'the people.' While this
textual exegesis is by no means conclusive, it suggests that 'the
people' protected by the Fourth Amendment, and by the First and Second
Amendments, and to whom rights and powers are reserved in the Ninth
and Tenth Amendments, refers to a class of people who are part of a
national community or who have otherwise developed sufficient
connection with this country to be considered part of that
community." (citations omitted)

Several other Supreme Court opinions speak of the Second Amendment in
a manner plainly indicating that the right which it secures to "the
people" is an individual or personal, not a collective or quasi-
collective, right in the same sense that the rights secured to "the
people" in the First and Fourth Amendments, and the rights secured by
the other provisions of the first eight amendments, are individual or
personal, and not collective or quasi-collective, rights. See, e.g.,
Planned Parenthood v. Casey, 112 S.Ct. 2791, 2805 (1992); Moore v.
City of East Cleveland, 97 S.Ct. 1932, 1937 (1977);(26) Robertson v.
Baldwin, supra (see quotation in note 17 supra); Scott v. Sandford, 60
U.S. (19 How) 393, 417, 450-51, 15 L.Ed. 691, 705, 719 (1856). See
also Justice Black's concurring opinion in Duncan v. Louisiana, 88
S.Ct. 1444, 1456 (1968).(27)

It appears clear that "the people," as used in the Constitution,
including the Second Amendment, refers to individual Americans.

</excerpt>
--U.S. v. Emerson, 5th Circuit Court of Appeals, 270 F.3d 203 (5th
Cir. 2001)

So, there you go, Weasel: both your "militia only" and "no individual
RKBA" bullshit propaganda "right out the window" in one fell swoop!

Game, Set, MATCH!!!

Take your meds, Johnny.  Emerson's NRA notes were dicta.

Poor old, Weasel: he fell for my "Rope-a-Dope": :D
===
Five examples of persuasive precedent ...

(1) Courts lower in the hierarchy.

(2) Privy Council decisions.

(3) Obiter dicta statements.

(4) A dissenting judgment.

(5) Decisions of courts in other countries.
===
See "PERSUASIVE PRECEDENT", Weasel?

See Number 3 above ("OBITER DICTA"), Harrison?

And you've claimed "dicta don't mean dick!" :-D

“We recognize that our sister circuit engaged in a very thoughtful
and
extensive review of both the text and historical record surrounding
the enactment of the Second Amendment. And if we were writing on
a blank slate, we may be inclined to follow the approach of the
Fifth
Circuit in Emerson."
--Judge Diarmuid F. O'Scannlain and Judge Arthur L. Alarcon
Ninth Circuit Court if Appeals, in _Nordyke v. King_, 99-17551

And now for even MORE modern "Law of the Land":

"The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia,..."
"The (Second) Amendment’s prefatory clause announces a purpose, but
does not limit or expand the scope of the second part, the operative
clause. The operative clause’s text and history demonstrate that it
connotes an individual right to keep and bear arms."
--District of Columbia, et al. v. Dick Anthony Heller (No. 07-290)
478 F. 3d 370)

And don't forget the 2004 U.S. Attorney General's Memorandum:

"We conclude that the Second Amendment secures a personal right
od individuals, not a collective right that may only be invoked by a
State or a quasi-collective right restricted to those persons who
serve in organized militia units."

Game, Set, MATCH!!!


"There is no question, after Heller, that the Second Amendment
guarantees Americans ' individual right to possess and carry
weapons (for self-protection) in case of confrontation."
-- Elena Kagan, Obama's Supreme Court nominee

"You shouldn't let it bother your sleep that Judge Garwood (the
senior
5th Circuit Court judge) and I, between us, own enough guns to start
a revolution in most South American countries."
--Judge Harold R. DeMoss, Jr. during the "U.S. vs. Emerson" appeal
.

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