NRA, Repubs block new law to stop suspected terrorists from buying guns

Lets assume you are right for a minute. Please read these dissenting views from the 9th Circuit

KOZINSKI, Circuit Judge, dissenting from denial of rehearing en banc:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that "speech, or . . . the press" also means the Internet, see Reno v. ACLU, 521 U.S. 844 (1997), and that "persons, houses, papers, and effects" also means public telephone booths, see Katz v. United States, 389 U.S. 347 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.

The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. See Kleinfeld Dissent at 6011-12; see also Brannon P. Denning & Glenn H. Reynolds, Telling Miller’s Tale: A Reply to David Yassky, 65 Law & Contemp. Probs. 113, 117-18 (2002). The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller’s weapon—a sawed-off shotgun—was reasonably susceptible to militia use. See Miller, 307 U.S. at 178. We are bound not only by the outcome of Miller but also by its rationale. If Miller’s claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller’s test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.

The majority falls prey to the delusion—popular in some circles—that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth—born of experience—is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks’ homes for weapons, confiscated those found and punished their owners without judicial process. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 338 (1991). In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. Id. at 341-42. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (finding black citizenship unthinkable because it would give blacks the right to "keep and carry arms wherever they went"). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.

All too many of the other great tragedies of history—Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few—were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. See Kleinfeld Dissent at 5997-99. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel’s mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough:

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 sheer ponderousness of the panel’s opinion—the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text—refutes its thesis far more convincingly than anything I might say. The panel’s labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it—and is just as likely to succeed.


KOZINSKI, O’SCANNLAIN, and T. G. NELSON join, dissenting from denial of rehearing en banc:

I respectfully dissent from our order denying rehearing en banc. In so doing, I am expressing agreement with my colleague Judge Gould’s special concurrence in Nordyke v. King,1 and with the Fifth Circuit’s opinion in United States v. Emerson,2 both taking the position that the Second Amendment secures an individual, and not collective, right to keep and bear arms.

The panel opinion holds that the Second Amendment "imposes no limitation on California’s [or any other state’s] ability to enact legislation regulating or prohibiting the possession or use of firearms"3 and "does not confer an individual right to own or possess arms."4 The panel opinion erases the Second Amendment from our Constitution as effectively as it can, by holding that no individual even has standing to challenge any law restricting firearm possession or use. This means that an individual cannot even get a case into court to raise the question. The panel’s theory is that "the Second Amendment affords only a collective right,"5 an odd deviation from the individualist philosophy of our Founders. The panel strikes a novel blow in favor of states’ rights, opining that "the amendment was not adopted to afford rights to individuals with respect to private gun ownership or possession,"6 but was instead "adopted to ensure that effective state militias would be maintained, thus preserving the people’s right to bear arms."7 It is not clear from the opinion whom the states would sue or what such a suit would claim were they to try to enforce this right. The panel’s protection of what it calls the "people’s right to bear arms" protects that "right" in the same fictional sense as the "people’s" rights are protected in a "people’s democratic republic."

Our circuit law regarding the Second Amendment squarely conflicts with that of the Fifth Circuit.8 It is inconsistent with decisions of the Supreme Court that have construed the Second Amendment and phrases within it.9 Our circuit has effectively repealed the Second Amendment without the democratic protection of the amendment process, which Article V requires.10

The panel decision purports to undertake historical analysis. Historical context has its uses in understanding the context and purposes of any law, constitutional or legislative,11 but like legislative history, the use of history is subject to abuse. Where the historical scholarship is partial and tendentious, relying on it becomes like relying on legislative history: "entering a crowded cocktail party and looking over the heads of the guests for one’s friends."12

Much of the panel decision purports to be an attempt to figure out what the word "militia" means in the Second Amendment. But the panel’s failure to cite the contemporaneous implementing13 statute defining the term demonstrates the tendentiousness of its analysis. The statute defining the militia, which in substance provides that the "militia" consists of all adult male citizens without regard to whether they are in any state or federal military service, has been subsequently altered to expand its coverage, but the federal militia statute remains in effect.14 Besides overlooking the statute, the panel somehow failed to notice that the United States Supreme Court, in United States v. Miller,15 held that the term "militia" in the Second Amendment meant, and means, "all males physically capable of acting in concert for the common defense." We are an inferior court, bound by this holding of the Supreme Court.

The panel opinion swims against a rising tide of legal scholarship to the contrary, relying heavily on a single law review article that claims "keep and bear" means the same thing as "bear," which itself means only to carry arms as part of a military unit.16

About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, "the people," as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to "the people," including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment’s protection of the right of "the people" to be secure against unreasonable searches and seizures,17 or the right of "the people" to freedom of assembly,18 but times and personnel change, so that this right and all the other rights
of "the people" are jeopardized by planting this weed in our Constitutional garden.

So lets look at the phrase from a Contextual stand point.
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 most important phrase for determining the scope of the operative words of the Second Amendment is "the right of the people." The operative words of the amendment syntactically protect the right of "the people," not the "militia," to keep and bear arms. The extensive discussion of "keep," "bear," and the preamble which is often cited to make the case of a collective right; simply skips over "the right of the people" and attempts no direct analysis of the phrase. Marbury v. Madison held that "It cannot be presumed that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it." The collective right crowd says that the Second Amendment creates no individual rights whatsoever, only a "collective right" apparently not enforceable by anyone, requires that this clause establishing a "right of the people" be read as though it were "without effect."

The "collective rights" interpretation of the Second Amendment, that it confers a "right" only on state governments with respect to state militias, is a logical and verbal impossibility in light of the phrase "right of the people." As our Constitution is written, governments have "powers" but no "rights." People have both "rights" and "powers." And the Bill of Rights carefully distinguishes between the powers of the states and the rights of the people, never speaking of rights of the people when it means powers of the states.

In addition to the above, the tenth amendment makes an interesting case for an Individual right as well. The Tenth Amendment expressly draws both distinctions, between powers and rights, and between powers of state governments and powers of the people: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The Tenth Amendment reserves "powers," not "rights," to the state governments, and the Ninth preserves "rights" for "the people." By use of the word "or," the Tenth Amendment makes it crystal clear that "the people" are distinct from the state governments and hold some reserved powers that the state governments do not. The Ninth Amendment, speaking of "rights" rather than "powers," prohibits a construction that would deny unenumerated "rights" to "the people." Without it, the inference from an express listing of rights might have been that there are no others. The Ninth Amendment does not prohibit such an expressio unius est exclusio alterius inference with respect to the state governments, and the Tenth Amendment carefully avoids sorting out which powers are reserved to the states, and which to the people.

The Fifth Circuit conducts this same analysis in United States v. Emerson. Emerson points out that the Constitution describes what governments exercise as "powers" or "authority." The "legislative Powers" are vested in Congress and the "executive Power" is vested in the President. A "right," however, is always exercisable by an individual. Indeed, it was not until recognition of the corporation as a legally cognizable "person" that the concept of an entity other than an individual having constitutional "rights" was even coherent, and the according of "rights" to "corporations" was and could be accomplished only by holding that they were "persons."

 

The list itself cannot be regarded as being constitutional if the process in place to challenge placement upon it is classified as unconstitutional.

It is not necessary for myself to prove anything, when your own citation of the ACLU website presents all that needs to be known regarding the list. Criteria for placement on the list is quite broad and vague, there is no live hearing for the accused, you are not provided with information as to why you were placed on the list, you will be denied all access to any evidence as to why you were placed on the list, and government will withhold evidence that undermines your placement on the list.

How you can read your own citation, and still claim that it does not undermine your claims, is a mystery in and of itself.

Again, from your own citation, there is no way of telling how many people are truly on the list. You only know how many people you are told are on the list.

Recourse in the form of not being allowed to see the evidence used against you, being denied access to evidence that could clear you, and not being told what criteria warranted you being placed on the list in the first place.

In simple, uncomplicated, easy to understand terms, the recourse of which you speak, is theoretical concept rather than an actual process.

You misrepresent. No claim was ever made that denial of boarding an airplane was denial of constitutional rights. Rather it was stated that usage of the no fly list, and the names included upon it, as a basis for denying constitutional rights, be it purchasing a firearm, or any other legally recognized and protected practice, is termination of due process. You have so far done nothing to prove otherwise. You have made no argument as to why the best course of action is to use a secret, error-prone list of names that are devoid of identifying information. All you have done is make suppositions and engaged in fear mongering about potential terrorists, and claimed that if you are innocent you will have your day in court, when your own citation says that you will not. Nor have you addressed how it will cost a person tens to hundreds of thousands of dollars to challenge their placement on the list in court, and how many cannot afford such proceedings.

 

This is what I'm arguing about, Natural and Legal rights, which both you and TOG 6 have skipped over on more than one occasion:

Natural and legal rights are two types of rights. Legal rights are those bestowed onto a person by a given legal system. (i.e., rights that can be modified, repealed, and restrained by human laws). Natural rights are those not contingent upon the laws, customs, or beliefs of any particular culture or government, and therefore universal and inalienable (i.e., rights that cannot be repealed or restrained by human laws).

So, if you want to argue only the 2nd Amendment, look at it from the standpoint of the above differences between the two types of rights. That is, could the 2nd Amendment be repealed or modified to allow more legal controls on guns? Sure it could and it would not violate your Natural Rights. That's the difference, and the only difference I'm arguing at this point.

 

Actually, it would violate your natural rights. What you are saying is that you could repeal the Constitution, designed to protect our natural rights, and that would be OK.

 

With or without the Constitution, our natural rights do not disappear. They may be denied by force in a totalitarian state, but even then, they are not gone. Legal rights, as previously noted, are another matter altogether.

 

True, but you suggest that is OK to pick and chose which ones to violate such as 2A do you not?

 

Nope. Has nothing to do with the discussion on the point of natural vs. legal rights.

 

Which is exactly what the 2A prevents happening.

 

According to the above...
Free speech isn't a natural right.
Freedom of religion isn't a natural right.
Life isn't a natural right.

 

You should really spend some time looking at the links I post because they are quite educational:

John Locke (1632–1704) was another prominent Western philosopher who conceptualized rights as natural and inalienable. Like Hobbes, Locke was a major social contract thinker. He said that man's natural rights are life, liberty, and property.

 

YOU said:

The right to Life liberty and property can be can be modified, repealed, and restrained by human laws.
According to you , this means they are bestowed onto a person by a given legal system and thus are LEGAL rights.

Given all this, please provide an example of a natural right.

 

I never said that.

Even Locke understood that people who violate another's life, liberty or property can be punished for their infractions, but that does not mean they are not natural rights. Please refer to earlier definitions which I and others have furnished.

 

Since it is possible you forgot what you posted in post #278, I wont call you a liar.
But, you did, indeed, say:

Natural and legal rights are two types of rights Legal rights are those bestowed onto a person by a given legal system. (i.e., rights that can be modified, repealed, and restrained by human laws). Natural rights are those not contingent upon the laws, customs, or beliefs of any particular culture or government, and therefore universal and inalienable (i.e., rights that cannot be repealed or restrained by human laws).

So....
The right to Life liberty and property can be can be modified, repealed, and restrained by human laws.
According to you , this means they are bestowed onto a person by a given legal system and thus are LEGAL rights.
Given all this, please provide an example of a natural right.

 

That was a quote that someone else said, but not me. I also thought it might inform you if it came from someone other than me, mostly because I'm not the one who's making the argument other than pointing out the difference(s) between natural and legal rights based on what earlier philosophers have said.

Of course, as has been pointed out, that those who violate another's natural rights can be punished for their transgressions. That in no way diminished those rights for those who would seek justice or the violator. They have not forfeited their natural rights, but the punishment may constrain them from fully enjoying those rights because of what they did. Happens every day in every court in the land.

 

None of which changes your stance in advocating the use of secret government watch lists as the sole basis for suspending and/or terminating constitutional rights without the protection of due process.

 

You did not attribute that quote to anyone.
Your quote indicates that life, liberty and property are not natural rights.
That being the case -- what is?

 

Not only attributed but including a link which you didn't even bother to read:

I would appreciate it if you would take a moment or two and read the links I post, or at least skim over them.

Go read the link; read Locke's The Second Treatise of Government, particularly Chapter 2 - Of the State of Nature. I can only point you to material that will enable you to understand my argument(s); I cannot make you read it or learn from it.

 

Would you prefer to be proactive or reactive? The latter usually results in mopping up a lot of blood after the event.

 

Your refusal to support your points is noted.
You're done here.

 

Hold that - it's worth at least one more I've encountered your response more than once over many years when I've argued facts with folks who had unsupported opinions. This is the final act - walk away, muttering over your shoulder something like, "you don't know what you're talking about". First couple of times it kind of bothered me. Now I completely understand what has happened and find it a real hoot.

 

And the proactive approach involves wasting finite resources with cumbersome efforts that always seem to miss the one responsible for some heinous act, prompting calls for increased resources to make the cumbersome efforts far more wide reaching than before.