Hathaway resigns. Snyder will appoint Supreme Court Justice.

We went from Justice Cliff Taylor, a real good man, to this.From WXYZ

(WXYZ) - Legal experts are saying that Michigan Supreme Court Justice Diane Hathaway may have avoided suspension by the Judicial Tenure Commission by announcing her retirement , but that doesn't mean she won't face criminal charges.
Channel 7 legal analyst Tom Cranmer says that is the big question and he believes it's a possibility.
This all surrounds allegations Hathaway shuffled properties in Michigan and Florida to enable a short sale on one. It was a story first reported by the 7 Action News Investigators.
Both the JYC and the US Attorney's Office have alleged fraud against Hathaway-- the US Attorney's claim is civil for now.

With Hathaway's resignation, Rick Snyder will appoint a new Supreme Court Justice. Personally, my first choice would be Wayne County Circuit Judge Dan Ryan if he wants it. I have no idea if he does. Another suggestion would be Colleen O'Brien who ran last time. O'Brien had a close loss to McCormack. This would follow the path of Justice Brian Zahra who lost in 02 or 04 and was later appointed and won his retention race. 

I hope Snyder picks someone good and someone with judicial experience. Supreme Court Justices need to be judges first.

The appointee will have to run in 2014 for the rest of the partial term. We have to be ready to go.

Bridget Mary McCormack - Dems Supreme Court nominee has never been a judge

I'm not going to get into the liberal v conservative ideology when it comes to the Michigan Supreme Court races. The justices and candidates are who they are. I'm not going to change too many minds on justices with ideological arguments. I am going to argue about experience. Most decisions aren't even ideological. Those decisions are the ones which make the news. Most decisions are procedural. In order to really understand procedures to the level a Supreme Court Justice should understand them, one should have judicial experience. 

We have three major Supreme Court races this year in Michigan. One is open seat. Justice Marilyn Kelly is retiring. One of the other seats is held by an incumbent, Justice Stephen Markman. The other is a quasi-incumbent in longtime judge Brian Zahra. Zahra was appointed by Rick Snyder to replace Justice Maura Corrigan, who stepped down to head Michigan Department of Community Health.

The dems are nominating three people for SCOTUS this year. One of them has never held any judicial position. Bridget Mary McCormack. So far she's had the most active campaign on the dem side. She's running for the open seat. Her top qualification is that she has an Irish sounding name. That ain't nice, but I'm sure that was a reason for the nomination.  She's the dean of clinical affairs at UM Law School. She's also tied to the Michigan Innocence Project, which is something which really does gain a lot of respect from me, because I don't think enough is done with wrongful convictions. That's the main reason I oppose the death penalty. I think McCormack should be commended for that work. Clinics are important, helpful, and do a lot for society. We're not electing a statewide clinic coordinator. This doesn't qualify her to be a Supreme Court Justice. Her judicial experience is zero. 


Compare the others. Incumbents.

Markman - Formerly on Appeals Court. Assistant US AG, Federal Prosecutor, Private practice.

Zahra - Formerly Appeals and Circuit Judge (at least 15 years), private practice.

Open Seat - Either:
Colleen O'Brien (whom I support) - 14 years judicial experience, private practice.

Jane Markey - 22 years judicial experience, private practice. While I support O'Brien, Markey would not be a bad pick.

There's no comparison. A Judge's job is to be the umpire, calling balls and strikes. The strike zone should be fair, and the merits of the case and proper procedure work should decide the cases. Justices of the Supreme Court should be the best of the best. Experience matters. Because I know a bit about Campaign Finance Laws, it doesn't mean I'm qualified to be Dean of the Political Science Department at Michigan State. My main experience is in a narrow field. I'm very good in that field. That doesn't mean I'm ready to take over the entire department at the best school in the state. More importantly, I don't have any teaching experience. That's important. That's what the dems are expecting us to accept with McCormack. Does she have the grasp of rules, procedures - in ALL aspects of law, evidential hearings, probate matters, contracts,  and other, especially non criminal law related fields? What's the learning curve going to be? 

For Michigan's Supreme Court, we don't need a major learning curve. We have two candidates running on the Republican side who both have judicial experience. Trial Court experience. If McCormack wants to be a judge, she should start with Washtenaw County District or Circuit Court, not the highest court in the land.

Experience counts.

Argus pushes for judicial reform - I have mixed views

One thing that's been pushed for years from the Center For Michigan and the Phil Power crew is a change in how Supreme Court justices are chosen in Michigan. The Argus had an editorial on that today, copied in part from the Lansing State Journal. I partially agree with it, although other parts I do not agree with. Personally I think the system for the Supreme Court should be the same system used for other Michigan judges. A simple primary where the top two candidates have a run off in November. Maybe add a 10 year law practice requirement to prevent newcomers with certain Irish last names from making a run for it five years out of law school.

The task force recommends:

Public disclosure of all judicial campaign spending.

Creation of an open primary to remove political parties from nominating candidates for Supreme Court justice.

Creation of two citizen panels, one to screen and recommend candidates for appointment to Supreme Court vacancies and the other to monitor conduct of judicial campaigns and provide context to help citizens evaluate claims made in election advertisements.

Creation of a voter education guide, produced by the secretary of state, to provide voters with basic background information on judicial candidates' training and experience.

Ending the age-70 limit on judicial candidates. The change would require a constitutional amendment.The reforms will not be easily adopted. Interest groups — including the Democratic and Republican political parties — may well prefer the status quo. But candidates in a nonpartisan race for a job where impartiality is a core requirement should not be forced to curry favor among party activists in order to get on the ballot. It's a system that breeds distrust and must be changed.
An impartial judiciary is in Michigan's best interests. By removing partisanship, holding interest groups accountable for their spending and their advertising messages, involving citizens more closely and supporting voter education, Michigan can improve this system greatly.

Addressing those points.

1. We have public disclosure of judicial committee spending, as well as PACs.

2. I agree with the open primary similar to our appeals court elections.

3. Now I have a problem. Who gets on the panel? Who makes them the arbiter to decide? This looks too much like the Missouri plan which is not only political "behind the scenes" but take the picks away from the voters. As far as the conduct of judicial campaigns, we have the code of judicial ethics already in effect by the State Bar of Michigan. I'm bound by it myself when I'm part of a judicial campaign. I also do not want to see the State Bar of Michigan become a political organization, directly or indirectly.

4. Why was age 70 (or age 75 in some cases when election is at age 65) there to begin with? It hurts in some cases when the minds are still sharp, but others no longer have it.

5. This doesn't remove partisanship or do much of impartiality. It is, was, and always will be a factor as long as judicial philosophy is always an issue. Dred Scot. Slaughter-house. Lochner era. Roosevelt pushback and Wickard v Filburn. Warren Court (not AS bad as reputation). The Burger Court (absolutely awful). Rehnquist and Roberts balanced court today. It's become a bigger factor today largely thanks to the Burger Court's Roe v Wade and Doe v Bolton and the heavy activism and increased governmental power of the 70's, some of it built upon previously bad decisions of Wickard v Filburn.

I've seen other issues pushed elsewhere like removing voting for judges and having governors appoint with no recourse by the the voters. I have a big problem with that. I don't think party conventions should nominate Supreme Court justices however. We do not do it for appeals court races which are just as important, and have almost the same impact as the Supreme Court.

Some of this isn't bad. Some is. I do think there will be a greater push for reforms, but let's make sure the cure isn't worse than the disease. 

Rick Snyder passes first major test as governor

I happened to miss this completely, which isn't surprising as my time's been limited lately. Right Michigan has the story. It's a good news and bad news situation. The bad news is that Justice Maura Corrigan left the Supreme Court to go to the department of human services. She did a great job there. The good news is that Rick Snyder picked a good replacement in Brian Zahra. I remember Zahra when he ran a sacrificial lamb campaign for the spot.

From Right Michigan:

"Judge Zahra's 16 years of judicial experience and his razor-sharp intelligence will make him an outstanding addition to the court," Snyder said.

Snyder, who campaigned as "one tough nerd" to win the governor's race in November, noted Zahra is "a self-described law geek."

"This is a case where it's nice to say a nerd gets to appoint a geek," Snyder said at a news conference."


Not just a nerd, but a federalist, a rule of law man, and an outright decent guy. I found it interesting that an entry in judgepedia reflected his similarity to the justice being replaced; Maura Corrigan. Under judicial philosophy they quote him:

"One area in which I can emphatically state we are better off today than eight years ago relates to the court system." Explaining that he shares the philosophy of Justice Maura Corrigan and the majority of the Michigan Supreme Court, Zahra said he aims to search for the rule of law and respects the separation of powers, "Leaving to the legislature the significant policy questions of the day."

I'm a skeptic about Snyder and there isn't a lot of good that was said about him on the blog during his campaign. He was my last choice in the GOP primary. I have a wait and see attitude on him as he's still very much an unknown. This, however, is a very good start, and the credit goes to the nerd here for making the right decision.

Pre-convention updates

There's some interesting developments.

1st. Nationally, it looks like another incumbent may be toast. Lisa Murkowski is trailing in Alaska's senate primary. The pundits are shocked, but I'm not. She barely won with 49% in the general election during her last term. Her dad was fired in the primary in 2006. If Murkowski is sent home, that she can add to the list of incumbents losing in primaries. Parker Griffith. Bob Bennett. Carolyn Cheeks Kilpatrick. Arlen Specter. Bob Inglis. Alan Mollohan. Seven incumbents have already been fired.

2nd. Justice Betty Weaver has finally quit. I'm not unhappy about this. First, it can actually lead to better relations on the court, even with a Granholm opponent. Secondly, at this point, I'd vote for Justice Cavanaugh over Weaver. Cavanaugh is more liberal, but at least has some good legal arguments that can be made, whether or not I agree with him. I respect Cavanaugh and how he argues his opinions. Weaver's opinions often have be thinking "What the hell is this?" Weaver has personal grudges against Justices Young, Markman, and Corrigan and lets that get in the way of justice. I'd rather have her simply not run for another term, but that certainly wasn't going to happen. She wants a parting shot because she knows there's no way in hell she would be nominated at the convention, nor did she want to split votes causing a nominated candidate to win.

However, the Republican Party needs to get off its ass when it comes to judicial elections. Mark Brewer has been going apeshit about the Supreme Court races for years, ever since 2000. The GOP has sit back and done nothing. Anyone remember Brian Zahra's race? Mark Shulman? While the GOP sit back, leaving the entire job to the Chamber of Commerce, the democrats went all in for Hathaway and won. Yes, incumbent judges can be defeat. It just happened. Go after Granholm's appointee.

The GOP needs to go all in for Justice Bob Young, who is one of the best on the entire court. However, just as important is the other nominee. Whether it be Mary Beth Kelly (where I'm leaning) or Jane Markey. We need a strict constitutional court, and not have the courts be another political arm for being whatever the winds decide it is. Without a strict constitutional court, we would not have had Concealed carry in Michigan.

3rd. Brian Calley is Rick Snyder's pick for LT. I don't know a lot about him, but what I do know is mostly good. I don't have a problem with it. It's much better than a lot of the other names I have heard suggested. This pick won't scare conservatives.

Lastly, for MSU trustee, I'm backing Mitch Lyons and Brian Breslin. Nugent voted for "significant" (his word) tuition increases.

I haven't decided the other trustee races.

As far as AG and Sec of State goes, I'm still undecided. I was leaning in a couple of directions until I got tired of the negative emails I've received. All this crap does is help Benson who would be an absolute disaster for voter integrity.

There may be some interesting Livingston County election developments soon. Until then, I'll just say that people in glass houses shouldn't throw stones.

Brighton Schools and State Supreme Court

Two things needs to be mentioned.

The first is regarding the Brighton School Board race.

I've found that in the Brighton Race (only contested one), that Cheryl Leach and Jay Krause are running as a team. Winnie Garrett is the other candidate. There is two positions available and three running. Garrett ran last time and participated in a debate. A rough transcript is here which has some of Garrett's answers to questions last year

The Concerned Taxpayers' Group PAC will be active in this race. I am not on the panel this election cycle for any May races, but will be interested to see who is endorsed, if anybody. I don't pay attention to a lot of endorsements, but that one is a big factor in any of my decisions. As someone formerly on the panel, I have a good idea what many of the questions will be, and have a general idea of the scoring system. I trust their judgment, even though I am no longer their treasurer, and am not an insider this time.

As far as State Supreme Court goes, I've heard a rumor. This may or may not be true, but I've heard from two sources (one inside, one outside the county) that Granholm wants her good friend Theresa Brennan to run for State Supreme Court (Deborah Thomas of Detroit has filed a committee). Remember what I said about today's district court judge will be tomorrow's high court judge and that biases matter? I told you so. Now I do not know if Brennan will take this job, or just stay on at District Court (where she is currently filed). We will find out at the Democrat Convention after the August Primary. However, head's up!

One person who IS running for State Supreme Court is Justice Clifford Taylor. Made famous by the hit piece from the democrats of "Markman, Taylor, and Young. Oh My!" ads, he is running for reelection. Our State Supreme Court is currently one of the very best in the entire country, despite the very semi-recent unprofessional conduct of Justice Weaver who I highly regret voting for in 2002. The Wall Street Journal Called the court the Finest Court in the country. If you remember the Kelo case, remember that much of that was taken from the State Supreme Court's Poletown opinion which ran roughshod over property rights. THIS court overturned Poletown, and would not give us Kelo on a federal level. THIS court followed the plain language of the bill and the law when interpreting the Concealed Carry battle back in 2000. If you support the 2nd Amendment, you know where to turn. Right here.

However, Justice Taylor needs your help. He has a lot of enemies from those who love judicial activism and hate strict constuctionism. The list includes radical leftist Jon Stryker and his Arcus Foundation, Geoffrey Fieger, Jennifer Granholm, the democrats, and the personal injury wing of attorneys. While I can understand the latter because of the line of work, it would not be good for Michigan. We don't need a radical like Granholm controlling this either.

Justice Cliff Taylor needs our support, and needs campaign funds. Money does not go far in the presidential races, but it goes much further in this race. If you have any extra money, and plan on only donating to one race, this is the one to pick. This is THE most important race in the state this year, including the presidency. We need to keep Justict Cliff Taylor on the Michigan Supreme Court. His campaign address is:

Committee to Re-Elect Justice Clifford Taylor
300 N FIFTH AVE STE 250
ANN ARBOR, MI 48104

DC v Heller 2nd Amendment update

This is the case formerly known as Parker v DC. DC appealed to SCOTUS so they are now listed first (Plaintiff in error/appellant) while Heller is listed 2nd. Heller is the only original plaintiff with standing, so his name goes on there first.

From SCOTUS BLOG - DC files their brief against Dick Heller

It's a PDF file.

Also related to the case. The former DC attorney arguing the case, Alan B Morrison (Of advocacy group Public Citizen) was fired. Walter Dellinger, former acting solicitor general for two years under Bill Clinton, replaces him. Both are experience attorneys practicing before SCOTUS.

I have not read the file yet in depth. It's 79 pages.

The attorneys for Hellerhave their own blog site here. along with all the public documents so far related to the case posted on their site.

Part 5 - SCOTUS and the 2nd Amendment ruling (DC v Heller Preview)

After four parts regarding precident and background, we now get to the current case.


Part 1 was an overview
Part 2 focused on the original intent and the founding fathers
Part 3 focused on early court cases before the Miller case
Part 4 focused on US v Miller and later cases.

This is part 5 and focuses on the current case, DC v Heller. It was originally Parker v DC but was renamed due to court proceedings which I'll get to later. When someone says Heller case or the Parker case, they are referring to the same thing.

First of all, the best site the internet regarding information on this case is Gura and Possessky P.L.L.C. Alan Gura is the lead counsel in this case and uploaded all the public documents to his website. They also operate a blog titled DC Gun Case. Robert Levy and Clark Neily are also part of "The Parker Team." Levy is a senior fellow of the CATO Institute. Clark Neily is from the Institute for Justice.
Both of them are libertarian leaning organizations. The Institute for Justice and the Cato Institute are not involved in the cases however. Levy is paying for this himself because he does not want to be beholden to anyone on this.

The players:
Robert Levy - Levy was looking for a lawsuit since 02. Surprising to some, he's not a gun owner, but is strongly pro-2nd Amendment, as well as the rest of the constitution. He saw the shift in academic opinion on the 2nd Amendment, even among some liberals such as Laurence Tribe, the Emerson case, and John Ashcrofy shifting government's opinion and thought it was time for a challenge with the right case. He wanted a narrow case, and DC was the best place for it due to jurisdiction issues, as well as a total ban.

Dick Heller - A security guard who is armed while on duty, but not allowed to own a gun at home. His claim passed the standing challenge and won and is now in the Supreme Court. (and why the case was renamed DC v Heller) The other plaintiffs, including Parker, had their cases dismissed due to lack of standing.

Shelley Parker - A resident of a crime ridden neighborhood in DC. She wants a firearm to protect herself from drug dealers in her neighborhood. She was the lead plaintiff in the case, then Parker v DC.

Washington DC - Defendant for their law banning all pistols registered after 1977, and only allowing long guns which are not assembled, or having a trigger lock installed on them at all times. They may only be assembled and functional for recreational shooting. Moving a gun (including inside the home) is illegal without a special permit that is usually unavailible.

Anthony Williams - Then mayor of DC. Defendant due to enforcement of unconstitutional laws

There were four other plaintiffs as well. All cases were dismissed for standing outside of Heller because Heller tried to register a firearm and had standing because of that.

One things these people all have in common. They are good test cases. They are not criminals, nor are they members of "militia groups", etc etc.

Notice that I didn't mention the NRA. Gura and Levy took them to task and for good reason. They didn't want to go to court and wanted this to go through congress instead, so they tried to mess with the case. Here's the ABA journal article on it.They brought their own case which got defeated based on standing issues) They are on board now, but the credit here goes to the plaintiffs and the three lawyers behind this.

A list of the motions and pleadings are all here at Gura and Possessky.
The case was filed in 2003 under the name Parker, et all vs District of Columbia, et all - shortened to Parker v DC.

There were fights on standing. That is finalized in appeals.

The Brady Center formerly known as Handgun Control, VPC, filed amicus briefs in favor of DC.
The American Civil Rights Union and Heartland Institute filed amicus briefs in favor of Parker.

In 2004, the District Court ruled in favor of Washington DC stating that:

Because this Court rejects the notion that there is an individual right to bear arms separate and apart from service in the Militia and because none of the plaintiffs have asserted membership in the Militia, plaintiffs have no viable claim under the Second Amendment of the United States Constitution. Thus, plaintiffs' complaint must be dismissed and their Motion for Summary Judgment denied as moot.

The plaintiffs appealed to the DC Circuit of the US Court of Appeals. Heller was the only with standing here, and the court said that the other plaintiffs did not have an injury as they did not face imminent prosecution. Heller was denied a license for his gun, and had standing. That's why the case will later be renamed DC (Appellant) v Heller (Appelle).

The amicus briefs were plenty.
For the Plaintiffs:
Texas AG Greg Abbot
Solicitor General Ted Cruz
Alabama AG Troy King
Arkansas AG Mike Beebe
Colorado AG John Suthers
Florida AG Charlie Crist (now governor)
Georgia AG Thurbert Baker
Michigan AG Mike Cox
Minnesota AG Mike Hatch
Nebraska AG Jon Bruning
North Dakota AG Wayne Stenehjem
Ohio AG Jim Petro
Utah AG Mark L. Shurtleff
Wyoming AG Patrick J. Crank
The above all joined the Texas AG's amicus brief

Other amicus briefs for Parker were filed by:
The Second Amendment Foundation (heavily involved in Emerson case)
Congress or Racial Equality
American Civil Rights Union
NRA (finally joined)

For the DC appellees:
Massachusetts AG Thomas Reilly, Maryland AG Joseph Curran, New Jersey AG Zulima Farber all joined in an amicus brief
New York and Chicago City Attorney's office
Brady Center and City/County of San Francicso joined.

The Appeals Court Ruled:
1. Five of the six plaintiffs did not have standing to sue (against)
On the Second Amendment itself:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia

On Whether the 2nd Amednment applies to DC.

The District does not argue, nor could it, that even if the Second Amendment confers an individual right, that right is enjoyed only by the residents of states (that would mean that citizens of the United States who lived in territories, such as the Northwest Territory, prior to their acceptance as states, did not enjoy a constitutional right). In any event, the Supreme Court has unambiguously held that the Constitution and Bill of Rights are in effect in the District. See O'Donoghue v. United States, 289 U.S. 516, 539-41, 53 S.Ct. 740, 77 L.Ed. 1356(1933) (quoting Downes v. Bidwell, 182 U.S. 244, 260-61, 21 S.Ct. 770, 45 L.Ed. 1088 (1901)). “The mere cession of the District of Columbia to the Federal government relinquished the authority of the states, but it did not take it out of the United States or from under the aegis of the Constitution.... If, before the District was set off, Congress had passed an unconstitutional act affecting its inhabitants, it would have been void. If done after the District was created, it would have been equally void; in other words, Congress could not do indirectly, by carving out the District, what it could not do directly. The District still remained a part of the United States, protected by the Constitution.” Id. at 541, 53 S.Ct. 740. Rather, the District's argument amounts to an appendage of the collective right position. It is only if one reads the prefatory language as limiting the operative clause to a guarantee about militias that one ever arrives at the question whether the guarantee is confined to state militias.

On whether it allows a ban on pistols

D.C.Code § 7-2502.02 FN18 prohibits the registration of a pistol not registered **170 *400 in the District by the applicant prior to 1976. FN19 The District contends that since it only bans one type of firearm, “residents still have access to hundreds more,” and thus its prohibition does not implicate the Second Amendment because it does not threaten total disarmament. We think that argument frivolous. It could be similarly contended that all firearms may be banned so long as sabers were permitted. Once it is determined-as we have done-that handguns are “Arms” referred to in the Second Amendment, it is not open to the District to ban them. See Kerner, 107 S.E. at 225 (“To exclude all pistols ... is not a regulation, but a prohibition, of ... ‘arms' which the people are entitled to bear.”). Indeed, the pistol is the most preferred firearm in the nation to “keep” and use for protection of one's home and family. See Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. Crim. L. & Criminology 150, 182-83 (1995). And, as we have noted, the Second Amendment's premise is that guns would be kept by citizens for self-protection (and hunting).

Finally, on requiring guns to be unloaded:

Finally, there is the District's requirement under D.C.Code § 7-2507.02 that a registered firearm be kept “unloaded** and disassembled or bound by trigger lock or similar device, unless such firearm is kept at [a] place of business, or while being used for lawful recreational purposes within the District of Columbia.” This provision bars Heller from lawfully using a handgun for self protection in the home because the statute allows only for use of a firearm during recreational activities. As appellants accurately point out, § 7-2507.02 would reduce a pistol to a useless hunk of “metal and springs.” Heller does not appear to challenge the requirement that a gun ordinarily be kept unloaded or even that a trigger lock be attached under some circumstances. He simply contends that he is entitled to the possession of a “functional” firearm to be employed in case of a threat to life or limb. The District responds that, notwithstanding the broad language of the Code, a judge would likely give the statute a narrowing construction when confronted with a self-defense justification. That might be so, but judicial lenity cannot make up for the unreasonable restriction of a constitutional right. Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional

In summary:

For the foregoing reasons, the judgment of the district court is reversed and the case is remanded. Since there are no material questions of fact in dispute, the district court is ordered to grant summary judgment to Heller consistent with the prayer for relief contained in appellants' complaint.

DC Appealed. The en banc hearing (entire panel) was denied by the DC appeals court. DC appealed to SCOTUS, which will hear the case. What is SCOTUS going to do? That is the question of the ages. The official question is narrow.

The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state- regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

If I had to bet money, I suspect this will follow Emerson to a large degree with a balancing test with Justice Kennedy writing the opinion in a 5-4 or maybe 6-3 decision with several concurring/dissenting opinions ranging for Stephens backing a total ban and Thomas saying nearly all of them are unconstitutional.

I'm cautiously optimistic about this. I would however have one more justice retire, preferably Stephens or Breyer before this is heard. With 08 and a democrat controlled senate, this may be the best chance for the 2nd Amendment to be properly decided. One piece of good news is that unlike in Miller, Heller and his counsel are showing up to the hearings.

Lastly, this case will probably be heard in 2008, just in time for the presidential election. This can make things real interesting, and if the candidates line up properly, may just wake up the conservative base one more time and give the GOP a lucky second chance unless an anti-gunner in nominated (and Bill Richardson is the democrat's pick)

Part 4 - SCOTUS and the 2nd Amendment ruling (DC v Heller Preview)

This is Part 4 in a series of 5 on the 2nd Amendment.

Part 1 was an overview. Part 2 was on the original meaning of the 2nd Amendment. Part 3 was early court cases. Part 4 is on the US v Miller Case and its legacy. Part 5 will be on the DC case.

The New Deal changed much of landscape of American politics, as well as the courts. At that time, the courts were activist. At first, they were activist against the states. They struck down most of the New Deal legislation. That wasn't always a bad thing. However, they struck down laws they didn't like on the state level on 14th Amendment grounds. They were economicaly libertarian, and while I may agree with that to a degree, cases like Lochner set bad precident to go in all different directions. FDR pushed his court packing scheme, but backed off when "a stich in time saved nine" and one of the other block switched to his side, making the mass expansion of government power suddenly "constitutional." Later you had more expansions (not ALL of it bad - Brown v Board of Education was a good decision) under the Warren and Burger Courts. The Rehnquist and Roberts courts seem to be moderating the expansions to some degree.

US V Miller was an 8-0 decision in 1939. Was it judicial activism? I can't say since it was that bad of a case. I don't blame the judges as much for this as they didn't have much to work with. I blame the test case. Miller was the worst possible test case of all. There are several reasons for that.

Jack Miller and Frank Layton were suspected bank robbers accused of violating the NFA act, still in effect today. They transported a sawed off shotgun across state lines. A Sawed Off Shotgun is a Class III firearm. It required a $200 tax (a LOT of money back then) on Class III firearms and registration with the BATF. Miller and Layton were charged, and fought on 2nd Amendment Grounds. The district court tossed the case out on 2nd Amendment grounds.

The case was appealed to SCOTUS. FDR's adminisration gave their brief which can be seen at guncite. It started with Cruikshank and then gave birth to what is known as the "collective right" theory saying that there is no right to keep and bear arms except for "state militias." The arms also had to be either public defense or military uses.

On the brief for Miller, we have.....nothing. Zip. Zilch. Zero. Nada. Layton plea bargained beforehand, and Miller was dead. He, nor his counsel, were at the Supreme Court. The case was also remanded to trial court, and never completed because there was no longer a case with Miller being dead. You start with a shady character, use him as a test case, and then not have him show up for whatever reason at the SCOTUS hearing, and combine that with a hostile administation (although nothing compared to Carter or Clinton), and this isn't going to be good. Combine all of that, and there is going to be bad precident.

Findlaw has the opinion.

Appeal from the District Court of the United States for the Western District of Arkansas. [307 U.S. 174, 175] Mr. Gordon Dean, of Washington, D.C., for the United States.

No appearance for appellees.

You can't win if you don't show. As far as the 2nd Amendment precident goes...

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.

The main part of the opinion is that the firearms protected by the 2nd Amendment have to be related to the militia. Miller did not have the opprotunity to prove that a sawed off shotgun can be a militia related weapon. (Was used in World War I). As far as Aymette v Tennessee, it can be found here and stated this: (Bowie Knife)

The right to keep and bear
arms for the common defence is a great political right. It
respects the citizens, on the one hand, and the rulers on the
other. And, although this right must be inviolably preserved, yet
it does not follow that the legislature is prohibited altogether
from passing laws regulating the manner in which these arms may be
employed....(snip)

In the former part of this opinion we have recurred to the
circumstances under which a similar provision was adopted in
England, and have thence deduced the reason of its adoption, and
consequently have seen the object in view when the right to keep
and bear arms was secured. All these considerations are left out
of view in the case referred to, and the court confine themselves
entirely to the consideration of the distinction between a law
prohibiting the right, and a law merely regulating the manner in
which arms may be worn. They say there can be no difference
between a law prohibiting the wearing concealed weapons and one
prohibiting the wearing them openly.

We think there is a manifest distinction. In the nature of
things, if they were not allowed to bear arms openly, they could
not bear them in their defence of the state at all. To bear arms
in defence of the state is to employ them in war, as arms are
usually employed by civilized nations. The arms, consisting of
swords, muskets, rifles, etc., must necessarily be borne openly; so
that a prohibition to bear them openly would be a denial of the
right altogether. And, as in their constitution the right to bear
arms in defence of themselves is coupled with the right to bear
them in defence of the state, we must understand the expressions as
meaning the same thing, and as relating to public, and not private,
to the common, and not the individual, defence.

But a prohibition to wear a spear concealed in a cane would in
no degree circumscribe the right to bear arms in the defence of the
state; for this weapon could in no degree contribute to its
defence, and would be worse than useless in an army. And, if, as
is above suggested, the wearing arms in defence of the citizens is
taken to mean the common defence, the same observations apply.

To make this view of the case still more clear, we may remark
that the phrase, "bear arms," is used in the Kentucky constitution
as well as in our own, and implies, as has already been suggested,
their military use. The 28th section of our bill of rights provides
"that no citizen of this state shall be compelled to bear arms
provided he will pay in equivalent, to be ascertained by law." Here
we know that the phrase has a military sense, and no other; and we
must infer that it is used in the same sense in the 26th section,
which secures to the citizen the right to bear arms. A man in the
pursuit of deer, elk, and buffaloes might carry his rifle every day
for forty years, and yet it would never be said of him that he had
borne arms; much less could it be said that a private citizen bears
arms because he has a dirk or pistol concealed under his clothes,
or a spear in a cane. So that, with deference, we think the
argument of the court in the case referred to, even upon the
question it has debated, is defective and inconclusive.

SCOTUS sited the above in the US v Miller case regarding sawed off shotguns.
However, when it comes to militias, this was mentioned in Miller:

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. 'A body of citizens enrolled for military discipline.' And further, that 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.

Keep in mind, this was AFTER the National Guard was formed. "All males physically capable" "Body of citizens". Even without Miller showing up, this was what SCOTUS mentioned. Lastly was this regarding the shotgun.

Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below.

With decisions like that, I'd love to be able to get into a Delorean, go 88MPH, and go back to 1939 to argue this case. Miller didn't go as far as the government wanted. It did not mention "collective right" or "state militia" as being seperate from the citizenry. It was however misinterpreted in its legacy, making this bad precident for its somewhat vagueness (not to mention Miller and his counsel not showing up).

The Legacy of Miller

The First Circut in an appeal regarding several cases and punted this for the most part.

The Federal Firearms Act undoubtedly curtails to some extent the right of individuals to keep and bear arms but it does not follow from this as a necessary consequence that it is bad under the Second Amendment which reads "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."

The right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing that right. (p.922)United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588; Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 29 L.Ed. 615. But the Supreme Court in a dictum in Robertson v. Baldwin, 165 U.S. 275, 282, 17 S.Ct. 326, 41 L.Ed. 715, indicated that the limitation imposed upon the federal government by the Second Amendment was not absolute and this dictum received the sanction of the court in the recent case of United States v. Miller, 307 U.S. 174, 182, 59 S.Ct. 816, 83 L.Ed. 1206.

In the case last cited the Supreme Court, after discussing the history of militia organizations in the United States, upheld the validity under the Second Amendment of the National Firearms Act of June 26, 1934, 48 Stat. 1236, in so far as it imposed limitations upon the use of a shotgun having a barrel less than eighteen inches long. It stated the reason for its result on page 178 of the opinion in 307 U.S., on page 818 of 59 S.Ct., 83 L.Ed. 1206, 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."

Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia. However, we do not feel that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go. At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,--almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,--is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result. Considering the many variable factors bearing upon the question it seems to us impossible to formulate any general test by which to determine the limits imposed by the Second Amendment but that each case under it, like cases under the due process clause, must be decided on its own facts and the line between what is and what is not a valid federal restriction pricked out by decided cases falling on one side or the other of the line.

The 6th circuit (here) had a real nasty legacy. Stevens v US in 1971 completely misinterpreted this.

We turn now to the consideration of whether Congress has the power to prohibit the possession of a firearm by a convicted felon. Since the Second Amendment right ‘to keep and bear Arms' applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm. United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 83 L.Ed. 1206. Stevens asserts, however, that Congress is without constitutional power to deny him this privilege. We hold that Congress has this authority under the commerce clause.

Where in Miller did it say that? The good news is that case was negitively cited twice.

The 8th Circuit said this regarding false statements in purchasing a firearm. Cody v US.

We find no merit in the contention that § 922(a) (6) violates appellant's Second Amendment right to bear arms. Since *37 United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), it has been settled that the Second Amendment is not an absolute bar to congressional regulation of the use or possession of firearms. The Second Amendment's guarantee extends only to use or possession which “has some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id. at 178, 59 S.Ct. at 818. See United States v. Synnes, 438 F.2d 764, 772 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972); Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942), cert. denied sub nom., Cases Valazquez v. United States, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943). We find no evidence that the prohibition of § 922(a) (6) obstructs the maintenance of a well regulated militia.

It all came from Miller. SCOTUS in 1980 in a dicta footnote (by Harry Blackmun) did affirm Miller, but that was argued on 5th Amendment Grounds. Things start to heat up later. With the rise in gun control movement from the 60's to today, we see a lot more changes in judicial philospohy in academia, and among the public.

US v Verdugo-Urquidez in 1990 was a 4th Amendment case, but it kickstarted the "Right of the people" argument.

The Fourth Amendment provides:


*265 “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”


That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to “the people.” Contrary to the suggestion of amici curiae that the Framers used this phrase “simply to avoid [an] awkward rhetorical redundancy,” Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, “the people” seems to have been a term of **1061 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.” See also U.S. Const., Amdt. 1 (“Congress shall make no law ... abridging ... the right of the people peaceably to assemble”) (emphasis added); Art. I, § 2, cl. 1 (“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States”) (emphasis added). 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 persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292, 24 S.Ct. 719, 723, 48 L.Ed. 979 (1904) (Excludable alien is not entitled to First Amendment rights, because “[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law”). The language of these Amendments contrasts with the words*266 “person” and “ accused” used in the Fifth and Sixth Amendments regulating procedure in criminal cases.

US v Lopez overturned the law that prohibited firearms within 1000 feet of a school zone. It was overturned on commerce clause grounds. (Related to 10th Amendment)It was a 5-4 decision with Stephens, Souter, Ginsburg, and Breyer dissenting. Stephens said this on his own.

Guns are both articles of commerce and articles that can be used to restrain commerce. Their possession is the consequence,*603 either directly or indirectly, of commercial activity. In my judgment, Congress' power to regulate commerce in firearms includes the power to prohibit possession of guns at any location because of their potentially harmful use; it necessarily follows that Congress may also prohibit their possession in particular markets. The market for the possession of handguns by school-age children is, distressingly, substantial.FN* Whether or not the national interest in eliminating that market would have justified federal legislation in 1789, it surely does today.

Justice Thomas in 1997 said this in the 10th Amendment case Printz v US where part of the Brady Bill was struck down. IT was also a 5-4 decision. Same people dissented here as in Lopez.

Even if we construe Congress' authority to regulate interstate commerce to encompass those intrastate transactions that “substantially affect” interstate commerce, I question whether Congress can regulate the particular transactions at issue here. The Constitution, in addition to delegating certain enumerated powers to Congress, places whole areas outside the reach of Congress' regulatory authority. The First Amendment, for example, is fittingly celebrated for preventing Congress from “prohibiting the free exercise” of religion or “abridging the freedom of speech.” The Second *938 Amendment similarly appears to contain an express limitation on **2386 the Government's authority. That Amendment provides: “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.” This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment.FN1 If, however, the Second Amendment is read to confer a personal right to “keep and bear arms,” a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections.FN2 As the parties did *939 not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms “has justly been considered, as the palladium of the liberties of a republic.” 3 J. Story, Commentaries § 1890, p. 746 (1833). In the meantime, I join the Court's opinion striking down the challenged provisions of the Brady Act as inconsistent with the Tenth Amendment.

Those decisions could be interesting to see what could happen in the Parker and Heller case as it is the only gun cases SCOTUS has ruled on recently. As far as the Second Amendment goes, there are three recent cases - three main ones that come to light.

The first is US v Emerson. The second is Silveira v. Lockyer which is a Stephen Reinhardt Special. Thank you Jimmy Carter.

US v Emerson was a 3-0 decision with two opintion. The anti-2a concurrence was a Clinton judge. The district court opinion ruled for Emerson on 2nd Amendment grounds. The Appeals overruled the case, but affirms an individual right to keep and bear arms. Findlaw has the case

US v Emerson first distinguished three models. The Collective rights model, "sophisticated collective rights", and individual rights (also known as standard) model. The Court says:

The government steadfastly maintains that the Supreme
Court's decision in United States v. Miller, 59 S.Ct. 816
(1939), mandated acceptance of the collective rights or
sophisticated collective rights model, and rejection of the
individual rights or standard model, as a basis for construction
of the Second Amendment. We disagree.

The court then examines Miller.

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:

I already posted what was cited earlier when I looked at the Miller decision.

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

It then goes on exam the term "militia" and said that Miller was neutral on individual vs collective rights.

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.

It takes a textual approach on the meanings of people, bear arms, and keep arms, as well as ""A well-regulated Militia, being necessary to the security of a free
State." It's long, but important reading and can be found at Findlaw. Lastly, it looks at the history with the federalists and anti-federalists, as well as state constitutions and early history regarding the right to keep and bear arms.

The final decision is this

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. 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.
(SNIP)
Error has not been demonstrated in the district court's
refusal to dismiss the indictment on commerce clause grounds.

For the reasons stated, we reverse the district court's
order granting the motion to dismiss the indictment under the
Fifth Amendment.

We agree with the district court that the Second Amendment
protects the right of individuals to privately keep and bear
their own firearms that are suitable as individual, personal
weapons and are not of the general kind or type excluded by
Miller, regardless of whether the particular individual is then
actually a member of a militia.(66) 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.

That was more due to Emerson not being the most upstanding citizen which can be read in the decision.


The 9th Circuit's opinion of Silveira v Lockyer contradicts Emerson.

Stephen Reinhardt wrote:

In 1999, the State of California enacted amendments to its gun control laws that significantly strengthened the state's restrictions on the possession, use, and transfer of the semi-automatic weapons popularly known as "assault weapons." Plaintiffs, California residents who either own assault weapons, seek to acquire such weapons, or both, brought this challenge to the gun control statute, asserting that the law, as amended, violates the Second Amendment, the Equal Protection Clause, and a host of other constitutional provisions. The district court dismissed all of the plaintiffs' claims. Because the Second Amendment does not confer an individual right to own or possess arms, we affirm the dismissal of all claims brought pursuant to that constitutional provision.

Because the Second Amendment affords only a collective right to own or possess guns or other firearms, the district court's dismissal of plaintiffs' Second Amendment claims is AFFIRMED. Because the off-duty officer provision is supported by a rational basis, the district court's dismissal of plaintiffs' equal protection claim challenging that provision is also AFFIRMED. However, because no rational basis exists for the retired officers exception, we REVERSE the district court's dismissal of that claim and direct that judgment be entered for the plaintiffs in that regard. The constitutional challenges to the validity of the California Assault Weapons Control Act are all rejected, with the exception of the claim relating to the retired officers provision

Reinhardt ripped the emerson case in his decision. Love or hate his work, it's binding in the 9th Circuit. It's in PDF format on Findlaw and the 9th Circuit appeals cite.

Until Parker, the two most recent 2a related cases directly contradicted each other within a short period. That leads to Part 5 and the current case.

Part 3 - SCOTUS and the 2nd Amendment ruling (DC v Heller Preview)

Part I focuses on an overview. Part II focuses on the orignal intent by the founding fathers. Part 4 will focus on the US v Miller case, and Part 5 will focus on the DC v Heller (Parker v DC) case itself.

There's a lot of talk about what the courts said regarding the 2nd Amendment. The current precident, US v Miller is cited by both sides in the debate as to supporting (to a degree) their side in the matter. It's bad precident, largely because it is not clear precident. There's a reason why it is bad precident, and not because it may or may not be judicial activism. It's bad because one of the sides never showed up to court.

The three major circuit cases today are the US v Emerson Case (5th Circuit), Silveira v Lockyer (9th Circuit), and Parker v DC (Renamed DC v Heller). Those three I'll discuss after the Miller case.

One of the other problems is that oftentimes, there aren't good test cases. One of the differences between Heller and many other cases is the plaintiff. Being charged with a crime and then suing on 2nd Amendment grounds doesn't go over very well. Justice is supposed to be blind, but there's a big difference when the plaintiff is a cop or security guard, than when the plaintiff is accused of a crime or someone like Mark Koernke. The NAACP was a master of that during the civil rights days. James Meredith was a very good test case. One of the main lessons driven home to law abiding gun owners in CCW class and elsewhere is this "DON'T be a test case." Why? You may lose, that's why. In gun related cases, losing is a high cost, especially in the age of zero tolerance - fines, jail, right to keep and bear arms, and a felony or misdemeanor on your record. I'm not going to strap on an AKS, walk around Downtown Lansing with it, get myself arrested, and claim 2nd Amendment as a defense. Could I win? Maybe - with $100,000 to spare, the right judges, and top attorneys who would be willing to fight instead of a plea bargain. Everything would have to go right. Is that good enough odds for me to go for it? Nope - especially with state laws and a process that allowed Concealed carry. I did not even mention that I'd have to pray that SCOTUS hears the case, which rarely happens. When it comes to test cases, Bob Levy (Cato Institute) got DC v Heller right, and I'll get to that in part 4. Emerson on the other hand, was not a good test case.

The Second Amendment has been heard five times by SCOTUS directly, although it has been mentioned related to several other cases.

The earliest case I could find was a state case. Nunn vs Georgia, a criminal case from 1846. This was before the 14th Amendment, which is important regarding incorporation of the bill of rights to the states. Click here for the case. There were some splits even among the states, but the main factor here was carrying a concealed weapon.

The right of the people peaceably to assemble and petition the
government for a redress of grievances; to be secure in their
persons, houses, papers, and effects, against unreasonable searches
and seizures; in all criminal prosecutions, to be confronted with
the witness against them; to be publicly tried by an impartial
jury; and to have the assistance of counsel for their defence, is
as perfect under the State as the national legislature, and cannot
be violated by either.

Nor is the right involved in this discussion less
comprehensive or valuable: "The right of the people to bear arms
shall not be infringed;" The right of the whole people, old and
young, men, women and boys, and not militia only, to keep and hear
arms of every description, not merely as are used by the militia,
shall not be infringed, curtailed, or broken in upon, in the
smallest degree; and all this for the important end to be attained:
the rearing up and qualifying a well-regulated militia, so vitally
necessary to the security of a free State. Our opinion is, that
any law, State or Federal, is repugnant to the Constitution, and
void, which contravenes this right, originally belonging to our
forefathers, trampled under foot by Charles I. and his two wicked
sons and successors, reestablished by the revolution of 1688,
conveyed to this land of liberty by the colonists, and finally
incorporated conspicuously in our own Magna Charta! And Lexington,
Concord, Camden, River Raisin, Sandusky, and the laurel-crowned
field of New Orleans, plead eloquently for this interpretation!
And the acquisition of Texas may be considered the full fruits of
this great constitutional right.

We are of the opinion, then, that so far as the act of 1837
seeks to suppress the practice of carrying certain weapons
secretly, that it is valid, inasmuch as it does not deprive the
citizen of his natural right of self-defence, or of his
constitutional right to keep and bear arms. But that so much of
it, as contains a prohibition against bearing arms openly is in
conflict with the Constitution, and void; and that, as the
defendant has been indicted and convicted for carrying a pistol,
without charging that it was done in a concealed manner, under that
portion of the statute which entirely forbids its use, the judgment
of the court below must be reversed, and the proceeding quashed.

Keep in mind on that case that Georgia enacted the right to keep and bear arms in 1861, after State v Nunn.

In 1850 Louisiana, State v Chandler used the right to keep and bear arms as part of his defense, regarding Concealed weapons.

The counsel of the accused requested the court to charge the jury, “that to carry weapons, either concealed or openly, is not a crime in the State of Louisiana; that the Constitution which guarantees to the citizen the right to bear arms cannot be restricted by the action of the Legislature.”


The act of the 25th of March, 1813, makes it a misdemeanor to be “found with a concealed weapon, such as a dirk, dagger, knife, pistol, or any other deadly weapon concealed in his bosom, coat, or any other place about him, that does not appear in full open view.” This law became absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons. It interfered with no man's right to carry arms (to use its words) “in full open view,” which places men upon an equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations

This court seperated "concealed carry" and "open carry." Concealed carry by custom is much more openly accepted today (criminal defense) while open carry depends more on the area. There's some debate over open carry in Michigan, but I don't recommend it in a practical sense, particulary when there is shall issue CPL.

The infamous Dred Scott case was a piece of bad judicial activism. We all know that. But let's look at the rights specificly denied to black Americans at that time.

The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation; or, that when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens. It cannot be supposed that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police *417 regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.


It is impossible, it would seem, to believe that the great men of the slaveholding States, who took so large a share in framing the Constitution of the United States, and exercised so much influence in procuring its adoption, could have been so forgetful or regardless of their own safety and the safety of those who trusted and confided in them.

The good news is that the decision was overturned by constitutional amendment (13th, 14th). What's important about that case today besides being bad law is that it specifically mentiones constitutional rights then denied to black Americans.

The first time SCOTUS heard a case on the Second Amendment is in 1876. US v Cruikshank. Anti's like to site that this case says the 2nd amendment doesn't grant the right to keep and bear arms. The Entire Decision is here and the court says this. This case was before the 14th Amendment and due process or equal protection brought incorporation down to the states. Look at not only what is said about the 2nd Amendment, but the 1st amendment in this case, which is treated the same way.

The first and ninth counts state the intent of the defendants to have been to hinder and prevent the citizens named in the free exercise and enjoyment of their 'lawful right and privilege to peaceably assemble together with each other and with other citizens of the United States for a peaceful and lawful purpose.' The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It 'derives its source,' to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211, 'from those laws whose authority is acknowledged by civilized man throughout the world.' It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection. As no direct power over it was granted to Congress, it remains, according to the ruling in Gibbons v. Ogden, id. 203, subject to State jurisdiction. [92 U.S. 542, 552] Only such existing rights were committed by the people to the protection of Congress as came within the general scope of the authority granted to the national government.

The first amendment to the Constitution prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. Barron v. The City of Baltimore, 7 Pet. 250; Lessee of Livingston v. Moore, id. 551; Fox v. Ohio, 5 How. 434; Smith v. Maryland, 18 id. 76; Withers v. Buckley, 20 id. 90; Pervear v. The Commonwealth, 5 Wall. 479; Twitchell v. The Commonwealth, 7 id. 321; Edwards v. Elliott, 21 id. 557. It is now too late to question the correctness of this construction. As was said by the late Chief Justice, in Twitchell v. The Commonwealth, 7 Wall. 325, 'the scope and application of these amendments are no longer subjects of discussion here.' They left the authority of the States just where they found it, and added nothing to the already existing powers of the United States.

The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.

The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in [92 U.S. 542, 553] these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States. Such, however, is not the case. The offence, as stated in the indictment, will be made out, if it be shown that the object of the conspiracy was to prevent a meeting for any lawful purpose whatever.

The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States

Today, a law by a state restricting free speech would be overturned faster than you can say Jack Robinson. In today's world of equal protection, fundamental rights of due process, pnembras, and in some cases creating rights (Roe v Wade), I can not see how Cruikshank can still be considered good precident even in its real form and not misinterpreted form. It has not been directly overruled. Even if is applied in its 2nd amendment form today, it favors Heller in the Parker case, since it did not say that it did not apply nationally. If you keep Cruikshank (state's rights), all those other cases should then be overturned based on consistency.

The 8th Circuit used Cruikshank misinterpretation of the 2nd Amendment. The weapon involved there was a switchblade. This was in 1988, before Emerson and Parker.

We also decline to hold that the Act violates the second amendment. Nelsen claims to find a fundamental right to keep and bear arms in that amendment, but this has not been the law for at least 100 years. In United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876), the Supreme Court overturned criminal convictions based on interference with supposed second amendment rights. “The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution.” Id. at 553. Later cases have analyzed the second amendment purely in terms of protecting state militias, rather than individual rights. See, e.g., United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939); United States v. Oakes, 564 F.2d 384 (10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978); United States v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976). Nelsen has made no arguments that the Act would impair any state militia, and we do not see how such a claim could plausibly be made.

I'll get to Miller later. Oaks was an application to Miller, as is Warin (a very very poor misinterpretation).

Presser v Illinois (1886) (I couldn't link it, but it is at Findlaw)

This case is about a man who paraded with a group of armed men. He was found guilty and it was affirmed. Regarding the 2nd Amendment, it affirmed Cruikshank:

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. It was so held by this court in the case of U. S. v. Cruikshank, 92 U.S. 542 , 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms 'is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. [116 U.S. 252, 102] 139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the constitution of the United States.' See, also, Barron v. Baltimore, 7 Pet. 243; Fox v. State, 5 How. 410; Twitchell v. Com., 7 Wall. 321, 327; Jackson v. Wood, 2 Cow. 819;Com. v. Purchase, 2 Pick. 521; U. S. v. Cruikshank, 1 Woods, 308; North Carolina v. Newsom, 5 Ired. 250; Andrews v. State, 3 Heisk. 165; Fife v. State, 31 Ark. 455.

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think [116 U.S. 252, 266] it clear that the sections under consideration do not have this effect.

The same thing said about Cruikshank can be said here, but there is no doubt who the militia is here. The three "major" circuit cases conflicting today all cited this case as well, even though they all contradict one another.

1894 - Miller v Texas (Found at Findlaw, couldn't link it here)

Miller was a bad test case as well, and his attorney blundered in a bad way.


He didn't make a 14th Amendment claim at trial court, and appeals courts are only authorized to look at what happened in lower courts. Cruikshank was affirmed.

Without, however, expressing a decided opinion upon the invalidity of the writ as it now stands, we think there is no federal question properly presented by the record in this [153 U.S. 535, 538] case, and that the writ of error must be dismissed upon that ground. The record exhibits nothing of what took place in the court of original jurisdiction, and begins with the assignment of errors in the court of criminal appeals. In this assignment no claim was made of any ruling of the court below adverse to any constitutional right claimed by the defendant, nor does any such appear in the opinion of the court, which deals only with certain alleged errors relating to the impaneling of the jury, the denial of a continuance, the admission of certain testimony, and certain exceptions taken to the charge of the court. In his motion for a rehearing, however, defendant claimed that the law of the state of Texas forbidding the carrying of weapons, and authorizing the arrest, without warrant, of any person violating such law, under which certain questions arose upon the trial of the case, was in conflict with the second and fourth amendments to the constitution of the United States, one of which provides that the right of the people to keep and bear arms shall not be infringed, and the other of which protects the people against unreasonable searches and seizures. We have examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions, and, even if he were, it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts. Barron v. Baltimore, 7 Pet. 243; Fox v. Ohio, 5 How. 410; Twitchell v. Com., 7 Wall. 321; The Justices v. Murray, 9 Wall. 274; U. S. v. Cruikshank, 92 U.S. 542 , 552; Spies v. Illinois, 123 U.S. 131 , 8 Sup. Ct. 21.

And if the fourteenth amendment limited the power of the states as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court. In Spies v. Illinois, 123 U.S. 131, 180 , 8 S. Sup. Ct. 21, objection was made that a certain letter was obtained from the defendant by an unlawful seizure, and the constitutional immunity was set up in the supreme court of Illinois, as well as in this court, but it was not made on the trial in the court of original jurisdiction. It was held, both [153 U.S. 535, 539] by the supreme court of Illinois and by this court, that the defense should have proven that the letter was unlawfully seized by the police, and should then have opposed its admission upon the ground that it was obtained by such unlawful seizure. Said the chief justice: 'As the supreme court of the state was reviewing the decision of the trial court, it must appear that the claim was made in that court, because the supreme court was only authorized to review the judgment for errors committed there; and we can do no more. ... If the right was not set up or claimed in the proper court below, the judgment of the highest court of the state in the action is conclusive, so far as the right of reviews here is concerned.' So in Texas & P. Ry. Co. v. Southern Pac. Co., 137 U.S. 48 , 11 Sup. Ct. 10, it was held directly that a privilege or immunity under the constitution of the United States cannot be set up here under Rev. St. 709, when suggested for the first time in a petition for rehearing after judgment. See, also, Caldwell v. Texas, 137 U.S. 692, 698 , 11 S. Sup. Ct. 224.

On that, the Court was right. If you don't make the claim when you are supposed to in trial court, you can't win at appeals. Basic procedure 101.

Those three pre-Miller cases were all in the 1800's, and long before incorporation became used, starting to some extent in the Lochner era, but more common during the Warren Court, and especially during the Burger Court. The Burger court era however was probably the most hostile to the 2nd Amendment, largely with the influx of LBJ and some Nixon and especially Jimmy Carter appointees to the courts as they became a lot more politicized with judicial activism. This gives birth to the "Individual" vs "Collective" right appoach you hear with the 2nd Amendment.

Today, there seems to be some set of a throwback, at least on 2nd Amendment issues. Even some liberal juticial scholars such as Lawrence Tribe and Sanford Levinson are mentioning the individual rights approach. Most of the chattering class, in particular the media, especially the goons at the NY Times are pushing the leftist "collectivist" rights appoach.

The Miller interpretations have been argued for almost 70 years. Part 4 will cover that.

Part 2 - SCOTUS and The 2nd Amendment ruling (DC v Heller Preview)

Part II focuses on the original history of the 2nd Amendment. Part 1 is here.
Part 3 will be court rulings. Part 4 will be on the Miller case and its legacy. Part 5 will be the DC case.

Before I continue on, I want to link to Guncite. It is the best Second Amendment resource site on the internet. It covers just about every single arguement, exsposes bogus quotes (both pro and anti), and most importantly, sources everything, so I can look at their sources after reading it to find more information. The Second Amendment Law Library also has a home there now. It's not the same as it once was in the late 90's, but still a good spot. It is mostly pro in its articles, but also has some anti articles there as well. Both are good reads to get an understand of the issue.

The Second Amendment of the United States Constitution was born 9-25-1789.

From the National Archives.

The Preamble to The Bill of Rights

Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution

(snip)

Amendment II

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.

First off, there's nothing about "hunting" listed here. The Second Amendment is not about hunting. That is a major reason why my guard goes up when pols talk about the 2nd Amendment and then about hunting. John Kerry kept doing this, even though he voted to ban all rifle ammunition. I support hunting, but there is no federal constitutional right to hunt. Hunting is a state level issue. There's nothing about "sporting purposes" either, or target shooting, etc. Any politician that talks about those issues in regards to the 2nd Amendment need to be watched. They could be ignorant on the issue and are willing to learn about it, or they could be outright hostile like John Kerry was.

Secondly, we know what the last part means. Right of the people. That's cut and dry. However, many leftists, particulary among the chattering classes (media) like to say that the 2nd Amendment gives the right to to keep and bear arms only for the National Guard. Two problems with that.

1. What's the "well regulated" Militia?
2. What's the National Guard?

Back in 1789, the militia was all white men. It still is under US CODE, but now expanded to all American men regardless of race ages 17 to 45. It's most of us reading this.

US Code says

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Now the militia predates the National Guard, which is PART of the militia. This bill was passed in 1916. The National Guard was formed in 1903 - 124 years after the Second Amendment was formed. That's not to mention that today's Guard are soldiers that serve the country more often than the state (Between the Iraq War and 1991 Desert Storm/Shield).

In order to find out the original meaning and intent of the 2nd Amendment, we have to go back to early American law, which is largely based on English common law. Common law is "judge made" law. That's not meant as a pejoritive or in a negative sense. Back then, most of the law wasn't in statutes or written down. It was based on customs of the period. The American colonists brought the law they knew with them, mostly English.

Most of the statutes today are codified versions of common law. That is particulary true in criminal law (all statutes). One Example is the differences in homicide between murder and manslaughter. Contracts are also largely governed by statutes (UCC) but based on common law. Property law is largely still governed by common law unless it is in contracts. Torts are largely still governed by common law today.

How common law is supposed to work is that custom was usually the law. Judges make rulings based on situations, and later judges look at previous judges in how they ruled on the same situation, and that is passed down as precident. Precident is an influence on the courts to this day. What makes the 2nd Amendment case interesting is that there is little to no precident in the Supreme Court, and that last case was bad precident (as one side did not show up).

The first major statutory influence was the Magna Carta in 1215. The Magna Carta placed some limits on the government at that time, most notably habeas corpus. It was the start of "due process" later in the 5th and 14th Amendments.

The Right to Keep and Bear Arms goes back further than even the 2nd Amendment. The English Bill of Rights in 1689 allowed Protestants to have arms for "defence" (British spelling), as allowed by law. That wouldn't help me very much back then, but it is a starting point of influences. It is also worth noting that one of the Penal Codes enacted by Britain against Ireland barred Catholics from owning firearms. Early gun control. They didn't trust my ancestors with guns. After "To Hell or Connaght" Cromwell, I wonder why? Some in South Boston are still mad about Cromwell today - and I thought I had Irish grudges.

The most influential English common law thinker in America, was William Blackstone. Most know Blackstone's quote of "It is better that ten guilty persons escape than one innocent suffer."
From Blackstone's Commentaries on the Laws of England

THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression

Sounds a lot like the 1765-1769 precursor of 2nd Amendment to me. Blackstone isn't law, although he is a major influencer of law.

As anyone from Civics 101 remembers, the United States is a system of checks and balances. That's what the Bill of Rights are about. That's what our system of Federalism (I'd argue anti-federalism is what much of federalism is called today) and our system of the three branches of government are. The 2nd Amendment is the last check and balance, mostly of a deterrance, against an out of control government (foreign or domestic). The good news is that it hasn't had to really be invoked yet.

James Madison wrote the 2nd Amendment. Two things going on influenced this heavily. One was the American Independence from the tyranny of King George and Lord North. The other was the Whiskey Rebellion and the failure of the Articles of Confederation. Guncite has a bunch of quotes from founding fathers of this country on the militia and firearms, including Thomas Jefferson, who I wish could be cloned for 2008. Jefferson and the anti-federalists were more suspicious of government power in general than the federalists. However, I'm concentrating on the Federalist Papers. Federalist 46 in particular. This is one issue the federalists and anti-federalists were in agreement or very near agreement. Federalist 46 was about state vs federal power.

...... But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter.

The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.

Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it. The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people. On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.

That's from Federalist 46, written by the same author of the 2nd Amendment, James Madison. It was just treated as a given that the populace was armed. I'll take this one step further. In 1790, the US Census gave a population of 3,929,214. That is three years after the ratification of the Constitution. A 500,000 strong armed militia mentioned by Madison is 1/8 of the total population of the US at the time. 1,615,125 of the total population were white males, which at the time, were the only members of the militia. 1/3 of the white male population at the time was the militia. Keep in mind that families were larger back then than they are today as well. The median age of the population in 1800 was 16 years old. Math isn't my strongest subject, but that explains who the well regulated militia is - us.

Don't take my word on the census numbers. It's all in the census archives

The original intent of the 2nd Amendment is clear. Between the common law traditions and the Federalist Papers, as well as historical context at the times, it is clear. Do not disarm the militia. Do not disarm the people of this country. The Right of the people to keep and bear arms shall not be infringed.

Part 3 is next. The Courts and legal history.