Clayton Cramer on the Parker Decision

Discussion in 'In the News' started by Malum Prohibitum, Mar 12, 2007.

  1. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    http://www.claytoncramer.com/weblog/200 ... 9797079596



    This Is HUGE!

    The DC Court of Appeals has ruled that the Second Amendment protects an individual right to keep and bear arms--and struck down at least parts of the DC gun control law. I'm reading the decision right now.

    UPDATE: This is a major victory. DC's ban on having a loaded, operative handgun in the home? Overruled by the Court of Appeals, which recognizes that handguns are protected arms under the Second Amendment!

    UPDATE 2: More thoughts: this is very nearly the perfect decision, for the following reasons:

    1. Because it struck down key parts of DC's gun control law, DC governnment either has to appeal it to the Supreme Court, or actually deal with DC's violent crime problem by going after criminals, instead of non-criminals. (Hard decision for them, I'm guessing.)

    2. Because the decision recognizes that the right is individual in nature, this isn't a technical win for us, but opens up the door to challenging other federal gun control laws to help determine what are the limits of Congressional and Executive branch authority. For example, if I'm camping in Yellowstone, does the Second Amendment protect my right to have an appropriate grizzly bear discouragement device in my tent? There's a plausible argument based on this decision that I do.

    3. The decision acknowledges the "right of the militia" argument, but points out that even if this were the case, because the militia included effectively all white men at the time, "right of the militia" isn't so terribly different from a general right--and the courts are not going to buy a limited right for white men:

    In essence, they are telling the gun control crowd that if they want to make the "right of the militia" argument, they can have it--but by allowing DC to prohibit gun ownership to females and blacks, which they aren't going to do (at least, not openly).

    4. Unlike many of the right to keep and bear arms cases that have worked their way up through the courts over the years, where the defendant is a criminal of some sort, or at least an unsympathetic character, such as Dr. Emerson in USA v. Emerson (5th Cir. 2001), we have squeaky clean plaintiffs on this case, so the Court doesn't have to worry about releasing a criminal if they make the right decision.

    5. Rather than directly challenging the bearing of arms, or the right to own some rather unusual or exotic weapon, this case involves the right to have a loaded and functional handgun in your home for self-defense. This is about as much of a no-brainer as there can be for the courts. While the decision doesn't directly challenge the constitutionality of a handgun registration law, it does make it clear that the current DC strategy of prohibiting new registrations for handguns is unconstitutional.

    6. They mention a Beretta 92 semiauto pistol, as I recall Dr. Emerson's weapon that got him in trouble, and in the context of U.S. v. Miller (1939) to demonstrate that even if you want to use the argument that only arms relevant to militia duty are protected, a handgun like the Beretta 92 (which is currently used by the U.S. armed forces) is clearly protected. They must be having a cow over at the Brady Campaign right now. More importantly, they mention that the Militia Act of 1792 requires at least some members of the militia to arm themselves with handguns. Excellent!

    This is a good day!

    UPDATE 3: One of the more alert readers noticed that the Idaho Attorney-General was one of those who signed a brief on the side of the District of Columbia. What? Now, they have his name misspelled as "Walden" not "Wasden" but why? Opposing the individual rights interpretation of the Second Amendment is political suicide in Idaho.

    I just requested Attorney General Wasden explain his reason for this:


    Over here, someone who apparently was involved in the case says that Idaho's appearance on that brief was in error.

    UPDATE 4: The A-G's office confirmed that they joined the brief in error. Here's the withdrawal.
    Labels: gun rights


    posted by Clayton at 9:01 AM permalink
     
  2. Sharky

    Sharky New Member

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    All of this sounds pretting positive from how I read it. Who knows what eyes it may open or close regarding 2nd amendment.
     

  3. Rammstein

    Rammstein New Member

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    I hope DC takes this to the SCOTUS.
     
  4. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Your wish is granted!

    Page A-8, New Work Times, Saturday March 10, 2007, under the picture of the mayor, is the following caption:

    Mayor Adrian M. Fenty of Washington said yesterday that city officials "intend to do everything in our power to get this decision overturned."

    :D
     
  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Time To Write Review of My New Book

    Remember that historians, for the most part, are going to not write reviews of Armed America, in the hopes that it will silently disappear. If you have some experience writing book reviews, now's the time to write them and submit them to your favorite magazine or newspaper--even if it is the Adams County Gazette & Sheep Shearing Quarterly.

    You can get a pretty good idea of how the academic community is responding to the Parker decision by reading Professor Michael Dorf's criticisms here and the far less thoughtful comments by Professor Robert Spitzer here. I'll be charitable and assume that Spitzer is working off a Brady Campaign summary of the 19th century Supreme Court precedents that he mentions, because if he actually had read them, it would be obvious that he's suffering creeping Bellesilesism.
    posted by Clayton at 10:38 AM permalink
     
  6. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    From the first link:

    :roll:

    What? Has it been amended? :lol:
     
  7. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    From the second link:

    :roll:
     
  8. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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  9. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Well, this case is definitely getting some attention . . . :D

    I think that makes a S. Ct. review more likely.
     
  10. geaux_tigers

    geaux_tigers Member

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    I've read some statements written by this ... guy. Why are people so interested in his opinion? To me it seems his writings are erroneous garbage. :bsflag:

    Really. Parker said that to overturn Miller. Funny - to me that actually sounds like what Miller said:

    To me that says: "If the weapon does not have a military use, the 2nd doesn't protect it. We aren't aware that Miller's weapon has a military use."
     
  11. kkennett

    kkennett New Member

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    Yes, isn't this fun! There's great commentary and discussions all over the place.
     
  12. Rammstein

    Rammstein New Member

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    So let me ask this....if the Sup.Crt. decided that the 2a confers a individual right and it does so because people need access to military weapons for use in a militia....would that allow the current ban on new full auto weapons to be overturned? Or is that just wishful thinking on my part?
     
  13. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Yes, it would allow it, and yes, it is wishful thinking on your part.
     
  14. Gunstar1

    Gunstar1 Administrator

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    If you mean the 1986 ban, I think it would. Not the NFA all together.
     
  15. Taler

    Taler New Member

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  16. Rammstein

    Rammstein New Member

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    I do.

    Excellent.....
    [​IMG]
     
  17. Tinkerhell

    Tinkerhell Active Member

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    [Pessimism]
    My question is what happens if this gets to SCOTUS and they stomp on it? How much more power is that going to give the Fed & States to keep us from our God given rights?....
    [/Pessimism]

    I realllllllly hope that doesn't happen & it looks like it won't since this thing seems to be such a perfect case for our views. I'm just as excited as the rest of you are. No telling what kind of momentum we might get from this getting a thumps up from SCOTUS.
     
  18. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The same power they have right now.

    The odds are not going to get any better anytime soon. With a Democrat majority in the Senate - no more Thomases, Scalias, or Alitos are going to be confirmed.

    Possibly a Roberts.

    Certainly a Kennedy, and a Harriet Meirs.

    And what case is going to get there that is better set up, factually and legally, than this one? There is almost no way out. If the decision is going to go against us, it is going to be better reasoned than the dissent in the Court of Appeals was, that is for sure. But I do not expect it will go against us.

    If it does, then guess what? You will not be able to carry a handgun in Chicago!

    As for carry in Atlanta, that is completely up to the legislature here. They passed concealed and open carry licensing law even though the Second Amendment has no legal applicability to the State of Georgia right now.

    See here for the ruling that the Second Amendment does not apply to Georgia like it did in 1846.

    Not everything that is legal has to be a "constitutional right." That is what I keep trying to tell the "right-to-anally-sodomize-is-in-the-Ninth-Amendment-or-the-Fourteenth-or-somewhere" crowd. :roll:

    If this loses in the Supreme Court, you will still be able to carry everywhere that you can now, and not where you cannot now. It will change nothing. State constitutions still protect even if the federal constitution does not.
     
  19. Rammstein

    Rammstein New Member

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    I've heard you say this before...

    Convince me.

    Madison argued that there should be no enumeration of rights because people will take that to mean those are the only rights.

    So how is it wrong to believe that people retain other rights that are not specifically listed?