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Sotomayor vs. the Second Amendment, Part II:

As I detailed in a previous post, Judge Sotomayor co-authored two opinions which denied that the possession of a firearm is a fundamental right. The first case can defended as based on what was, at the time, still-valid dicta. The second case is indefensible.

The first case was United States v. Sanchez-Villar (2004). For the proposition that that there is no fundamental right to possess a gun, Judge Sotomayor and the other two judges quoted United States v. Toner, 728 F.2d 115 (2d Cir., 1984). Let's look at it.

Vincent Toner and Colm Murphy were convicted of attempting to purchase unregistered machine guns for the purpose of smuggling them to Northern Ireland, on behalf of misnamed Irish National Liberation Army. To their surprise, the purported middleman in the deal turned out to be an FBI informant.

On appeal, Murphy challenged, inter alia, the federal statute prohibiting illegal aliens from possessing firearms. He argued that since American citizens can possess firearms, the statute prohibiting illegal aliens from doing so was a denial of equal protection. The court's analysis of the issue is as follows:

Murphy was convicted under Count Four of violating 18 U.S.C.App. § 1202(a)(5) (1976), which makes it a felony for an illegal alien to receive, possess or transport "in commerce or affecting commerce ... any firearm." Because receiving, possessing or transporting firearms in interstate commerce is not in and of itself a crime, United States v. Bass, 404 U.S. at 339 n. 4, 92 S.Ct. at 518 n. 4, and because being an illegal alien is not in and of itself a crime, Murphy argues that his Fifth Amendment right to equal protection of the law is violated by section 1202(a)(5). He concedes, however, that the statute passes constitutional muster if it rests on a rational basis, a concession which is clearly correct since the right to possess a gun is clearly not a fundamental right, cf. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) (in the absence of evidence showing that firearm has "some reasonable relationship to the preservation or efficiency of a well regulated militia," Second Amendment does not guarantee right to keep and bear such a weapon), and since illegal aliens are not a suspect class.
The Toner court then provided reasons why there is a rational basis for treating illegal aliens differently, in regards to arms possession.

It is questionable whether Toner's language about fundamental rights created a controlling precedent; the issue was not even contested before the court, as appellant Murphy had conceded that no fundamental right was involved. However, Toner provided, at the least, some usable dicta, which Judge Sotomayor and the other two judges in her panel quoted in their Summary Order in Sanchez-Villar in 2004.

In 2008, the Supreme Court authoritatively ruled that the Second Circuit's 1984 reading of Miller was entirely wrong. In District of Columbia v. Heller, the majority opinion chastised lower court court judges who had "overread Miller" and criticized Justice Stevens for wanting to defer to "their erroneous reliance" on interpretations similar to the one proffered by the Second Circuit in Toner. The Heller decision stated that "Miller did not hold that and cannot possibly be read to have held" that only arms possession by the militia is protected by the Second Amendment. Quoting the exact sentence of Miller which had been quoted in Toner, the Heller decision explained that this sentence demonstrated Miller's correct meaning: "it was that the type of weapon at issue was not eligible for Second Amendment protection." Thus, "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."

Post-Heller, Toner's assertion that there is no fundamental right to possess a firearm was invalid. The assertion in Toner was based on solely on an interpretation of Miller, and the Supreme Court has unambiguously stated that the interpretation was wrong.

In 2009, Judge Sotomayor was part of a three-judge panel which decided a challenge to New York state's prohibition of nunchaku, Maloney v. Cuomo. So when Maloney asserted that he had a fundamental right to arms, there was no controlling circuit precedent. Accordingly, Judge Sotomayor and her fellow Maloney panelists should have provided a reasoned decision on the issue. Alternatively, the panel might have declined to decide the right to arms issue, while issuing an opinion holding that, even if right in general were fundamental, the right to Maloney's particular arm (nunchaku) is not.

Instead, the panel simply stated a general rule about the Fourteenth Amendment: "Legislative acts that do not interfere with fundamental rights or single out suspect classifications carry with them a strong presumption of constitutionality and must be upheld if 'rationally related to a legitimate state interest.'" The quoted language came from Beatie v. City of New York, 123 F.3d 707 (2d. Cir. 1997), an unsuccessful challenge to the City government's severe restrictions on cigar smoking. (Beatie itself was quoting the Supreme Court's Cleburne v. Cleburne Living Center.)

The Maloney court's approach was evasive and disingenuous. Stating the test is not the same as applying the test. Pursuant to Beatie and Cleburne, there is a two-part test: 1. Does the legislative act interfere with a fundamental right or single out a suspect classification? 2. If not, is there a rational basis for the law?

The cigar aficionado Beatie had conceded point 1, but had argued that there was no rational basis for the anti-cigar law; so the Beatie court analyzed only the second point, and decided that there was a rational basis. Maloney, in contrast, had argued energetically and extensively that New York state's ban on nunchuku violated his fundamental rights.

Yet Judges Sotomayor, Pooler, and Katzman simply presumed--with no legal reasoning--that the right to arms is not a fundamental right.

The opinion in Maloney v. Cuomo is not a good example of intellectual rigor. When a judge treats a constitutional right as non-fundamental--yet cites no legal authority, and does not even acknowledge that the issue has been raised on appeal--it raises the possibility that the judge may be hostile to that right.

/:
When a judge treats a constitutional right as non-fundamental--yet cites no legal authority, and does not even acknowledge that the issue has been raised on appeal--it raises the possibility that the judge may be hostile to that right.


It's morally right to be hostile to bad law, especially if the law in question citizens to harm potential and actual bodily attackers. Violence is wrong.
6.2.2009 4:36am
J. Aldridge:
Wonder why Patrick Henry said "The great object is that every man be armed," and then says, "But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed?"

He talks about every man being armed not individually, but armed through a militia.

Sotomayor is right that it isn't a fundamental right, but a right to bear arms, as Francis Bird of MA put it, "to bear them as a part of the military power of the State."
6.2.2009 5:19am
Milhouse (www):
J Aldridge, what do you mean "through a militia"? The militia is "every man". The "great object" is that they, the people, the militia, be armed. It makes no sense to say that every man should be armed "through" the armed population.
6.2.2009 5:52am
J. Aldridge:
I should had said "armed as a member of an organized militia."
6.2.2009 6:06am
Brett Bellmore:

Thus, "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."


The imbecility of this, of course, is that the Miller Court did NOT determine that short barreled shotguns were not constitutionally protected. Instead, they sent the case back to the lower court for a determination as to whether short barreled shotguns had MILITARY utility, not whether they were commonly owned by civilians, which determination never took place because Miller was dead.

It's widely understood that, given the history of short barreled shotguns being used in trench warfare, had the determination actually taken place, Miller probably would have led to the right to own sawn off shotguns being constitutionally guaranteed.

Scalia scarcely misread Miller less than the minority did. The only question in my mind is whether he knew he was doing that. He made enough other mistakes about Miller, (Like getting wrong who'd won at the circuit court level.) that it's plausible this point was just another screw up. On the other hand, Scalia is notorious for his reluctance to overturn long established laws, (Like the NFA), so he certainly had motive to get Miller wrong.

Aldridge, Miller was a felon, and thus no part of the militia. If the Miller Court had agreed with your (Rather silly) reading, they'd never have reached the point of inquiring as to whether sawn off shotguns were suitable for military use.

There's extensive contemporaneous commentary on the 2nd amendment. It was supposed to safeguard a militia, yes, but it was supposed to do it by way of protecting a civilian right to own militia weapons. In that way a militia already armed and familiar with it's weapons could be constituted in an emergency, even if the government had deliberately let the militia system languish.

If it was taken to mean what you claim, it would never have served it's intended purpose, as the government could extinguish the right by discontinuing the militia. And what's the point of a constitutional protection the government it applies to can so easily extinguish?
6.2.2009 6:23am
David M. Nieporent (www):
Wonder why Patrick Henry said "The great object is that every man be armed," and then says, "But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed?"
Wonder how a quote from Patrick Henry that doesn't say what you claim it says, and that has nothing to do with the Second Amendment, can possibly tell us what the Second Amendment says about whether the RKBA is a fundamental right.
6.2.2009 6:43am
J. Aldridge:
Wonder how a quote from Patrick Henry that doesn't say what you claim it says, and that has nothing to do with the Second Amendment

How come RKBA zealots always quoting him then??????
6.2.2009 6:59am
SocratesAbroad (mail):

He talks about every man being armed not individually, but armed through a militia.
[snip]
I should had said "armed as a member of an organized militia."

Best not to use the Center to Prevent Handgun Violence as the source of your argument; they're just as guilty of cherry-picking the quote as their pro-personal-right-to-arms counterparts.

Henry was actually talking about what to do in the event that Congress did not pony up and support (i.e. arm) state militias.

May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms, &c.? Every one who is able may have a gun. But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that that nation which shall trust its liberties in other hands cannot long exist.

The above does refer to state militias, true, but what were state militias? That's right, individual citizens of each state. If Congress failed to arm them, John Marshall suggested that states my go out and arm themselves:

If Congress neglect our militia we can arm them ourselves. Cannot Virginia import arms? Cannot she put them into hands of her militia-men?

What's more, as explained by George Mason, this understanding of militia=general citizenry was quite clear:

[w]ho are the militia, if they be not the people of this country ...? I ask, who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor ....[142]

The Republican militia was the armed populace at large; to be avoided was a select militia or standing army.
6.2.2009 7:11am
J. Aldridge:
A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.

Pretty interesting why the scruples objection was added, and later omitted, neither case having nothing to do with private rights of individuals to own a gun.
6.2.2009 7:36am
pintler:

Violence is wrong.


I was unable to parse the rest of your response, but this brought back a memory of a late and lamented officer I knew. He was on duty during a civil disturbance a few years ago, standing with a group of officers in riot gear, when a young Birkenstock wearing lady went by and hissed 'Violence is not the answer'. Ever the quick wit, he replied 'Doesn't that depend on the question?'.
6.2.2009 7:40am
Brett Bellmore:
Constitutional amendments do not have a single purpose rule. As you point out, it WAS omitted. Perhaps because it had nothing to do with the right being guaranteed?
6.2.2009 7:45am
Glen Alexander (mail):
Rather that re-arguing Heller yet again for the umpteenth time, I'd prefer to focus on Sotomayor's sloppy disposition of yet another case where her "life experiences" predetermined the outcome.

Maybe some Senator on the Judiciary Committee can persuade Judge Sotomayor to answer the simple question "Do you believe there is a fundamental human right of self-defense that is enumerated in the Constitution?"
6.2.2009 7:51am
a certain mr. meade (mail):
I have to say that weapons such as nunchuku and even knives often seem to have less protection under the law. They should be equal, but in reality probably aren't.

Take the common scenario of an armed man attacking a woman. Shoot the armed man, and you're a hero. Stab him with a cavalry saber or a knife twelve times to stop him, and you'd get asked over and over whether or not you could have stopped him with 60% of the strikes. Same with a baseball bat or a steeltoed boot. But a gun? Good job, fella! And if you have any legal troubles, just look in the phonebook.
6.2.2009 7:59am
cboldt (mail):
-- The first case can defended as based on what was, at the time, still-valid dicta. --
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As discussed at length in previous threads, I vigorously disagree with this assertion. Reading Cruickshank/Presser for the proposition that "the 2nd operates only against the states, therefore the states are free to legislate against the right to keep and bear arms" turns the logic of those cases on their heads. The reading is not defensible in any way, shape, or form.
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The Court, in Presser, ruled on the states power to require a license to conduct an armed military parade, and separately discussed the right of the people to keep and bear arms.
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If the case was about the 1st amendment, an analogous decision might be on the power of the state to license radio broadcasts; and separately talk about why that does not infringe the right of the people to peaceably assemble or enter into free speech.
6.2.2009 8:03am
cboldt (mail):
Oops -- I thought "the first case" was going to refer to Presser, so my "disagreement" above is bleated and somewhat out of rig with previous threads.
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Quoting the exact sentence of Miller which had been quoted in Toner, the Heller decision explained that this sentence demonstrated Miller's correct meaning: "it was that the type of weapon at issue was not eligible for Second Amendment protection." Thus, "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."


The majority in the Heller Court employed the same corrput methodology of the 2nd, take a sentence in isolation, and then explain it, in isolation. The majority in Heller has bootstrapped an unconsitutional law into constitutionality. In Miller, the 1934 NFA was ruled an infringement of the 2nd, and SCOTUS ordered that ruling to be reinstated on a factual finding that a short barrel shotgun "is any part of the ordinary military equipment or that its use could contribute to the common defense."
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The Supreme Court, rewriting its own history, right before your lying eyes.
6.2.2009 8:13am
cboldt (mail):
-- Scalia scarcely misread Miller less than the minority did. The only question in my mind is whether he knew he was doing that. --
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Miller is a very short, simple case. That the Heller majority asserts "Miller upheld a conviction" leads me to conclude that the error was deliberate. And the misread is "harmless error" only to the extent that lower court won't take the resulting dicta and run with it. But already the lower courts are running with "the 1934 NFA and 1968 GCA are unquestionably constitutional, See dicta in Heller."
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The actual proposition of Miller [not the bogus propositions read in by a series of judges openly hostile to the right of the people to keep and bear arms] has been reversed by subterfuge.
6.2.2009 8:24am
iowan (mail):
How does the old saw go? If the facts are against you, argue the law. When the law is against you, argue the facts....
so its no wonder that a law blog would argue the law and ignore the facts.
The BOR prohibits Congress from taking specific actions. Limiting speech, establish a religion, infringing on the right to keep and bear arms.
Why would the founders explicitly feel the need to make sure that the govt would not take away the right of the govt to arm themsleves?
The 2cnd does no protect the govt rights. It protects the people from the govt
6.2.2009 8:34am
cboldt (mail):
-- Maloney v. Cuomo. So when Maloney asserted that he had a fundamental right to arms, there was no controlling circuit precedent. Accordingly, Judge Sotomayor and her fellow Maloney panelists should have provided a reasoned decision on the issue. --
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Are you contending that the 14th amendment, on its own, is useful to find a fundamental right to keep and bear arms?
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The Maloney panel addressed the keep and bear arms issue by citing Presser for the proposition that the 2nd amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. As with other dishonest [yes, that's redundant] gun grabbers who cite to Presser, the Maloney panel urges reading Presser no further. If one would accidentally read further, one would bump into the Supreme Court asserting:

the states cannot, even laying the [2nd amendment] out of view, prohibit the people from keeping and bearing arms


IOW, the very case that the Maloney indirectly uses to conclude that keeping and bearing arms is NOT a fundamental right, stands for the proposition that keeping and bearing arms IS a fundamental right, that stands without regard to being enumerated in the Bill of Rights.
6.2.2009 8:44am
Anderson (mail):
A better analysis that pays more attention to the relevant legal issues is provided by Tom Freeland, here.

Is the Second Amendment incorporated vis-a-vis the states? Are nunchuks the type of weapon protected by the Second Amendment?
6.2.2009 8:48am
David M. Nieporent (www):
How come RKBA zealots always quoting him then??????
They're quoting him, in context, for the purpose of his statement, not as though he were discussing the Second Amendment. Your approach, like that of tax protesters, is just to dig up a narrow quote, without looking at context, that you think supports a much broader claim about the law. Patrick Henry was discussing whether the state should rely on the federal government to pay for arms for state militias. He wasn't discussing what the Second Amendment means.
6.2.2009 8:48am
yankev (mail):

It's morally right to be hostile to bad law,
Perhpas, but it is not morally right for a judge to refuse to enforce a law simply because the judge finds that law distasteful.

Violence is wrong.
And therefore you favor laws that would render the innocent defenseless against it?
6.2.2009 9:14am
cboldt (mail):
-- A better analysis that pays more attention to the relevant legal issues is provided by Tom Freeland --
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Freeland's analysis is risible. He assumes the proposition of Presser, as stated by the 2nd Circuit, is correct, and he does so without checking the Presser case itself.
6.2.2009 9:20am
jukeboxgrad (mail):
nieporent:

They're quoting him, in context, for the purpose of his statement, not as though he were discussing the Second Amendment.


RKBA promoters do indeed quote Henry "as though he were discussing the Second Amendment." For example, this page starts with the heading "Second Amendment - Historical Quotes About Second Amendment," and then immediately quotes Henry saying "The great object is, that every man be armed."

More vivid proof: a popular RKBA book about the second amendment is entitled "That Every Man Be Armed."
6.2.2009 9:21am
jukeboxgrad (mail):
Other examples of RKBA promoters using Henry's quote "as though he were discussing the Second Amendment" are here, here, here, here, here and here.

And here's an especially obvious example:

Patrick Henry, a contributor to America's Constitution and one of the greatest advocates for individual liberty the world has ever know, in 1788 painted a very clear picture of what the Second Amendment means when he said "The great object is, that every man be armed."


All these people are definitely citing Henry "as though he were discussing the Second Amendment."
6.2.2009 9:29am
Mikee (mail):
In a comment above, Glen Alexander nailed the issue to the wall for all to see.

Is self defense an inherent right of individual citizens, protected by the 2nd Amendment, or not?

The RKBA debate is an overlay upon this question.

Get Judge Sotomayor to answer this question.
6.2.2009 9:29am
Anderson (mail):
Cboldt my friend, there is a blogging convention whereby indented blocks of text, which are also shaded gray at Freeland's blog, are quotations from other sources.

In Freeland's post, Presser is mentioned in a *quotation* from the Sotomayor case in question.

And while you may be dissatisfied with lower courts' grasp of Presser, the important citation for Sotomayor's purposes was this:

Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding "that the Second Amendment's 'right to keep and bear arms' imposes a limitation on only federal, not state, legislative efforts" and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006).

Barring a holding on the incorporation issue in Heller, Sotomayor was bound by her circuit's precedent in Bach, was she not?
6.2.2009 9:32am
Anderson (mail):
in 1788 painted a very clear picture of what the Second Amendment means

Hilarious, JBG. Patrick Henry: statesman ... patriot ... and prophet!

... But snark aside, it seems that Henry was indeed discussing a proposed text of the Second Amendment, which was patterned on a similar Virginia provision.
6.2.2009 9:35am
cboldt (mail):
-- In Freeland's post, Presser is mentioned in a *quotation* from the Sotomayor case in question. --
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I recognized it as such. My criticism [Freeland assumes the 2nd Circuit has properly read and applied Presser] stands unmoved by that observation.
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-- Barring a holding on the incorporation issue in Heller, Sotomayor was bound by her circuit's precedent in Bach, was she not? --
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Bach has the same defect in reading and application of Presser that Maloney has.
6.2.2009 9:39am
jpe (mail):
I don't undestand the critique in the post. The Maloney court notes 2nd circuit precedent that the 2nd amendment isn't incorporated through the 14th, notes that the Heller court withheld judgment on that question, and concludes that its earlier precedent is still good law.

Seems airtight to me.
6.2.2009 9:39am
Michael Masinter (mail):
jpe identifies the real complaint in this thread; Sotomayor wrote with restraint, leaving to the Supreme Court the responsibility to determine whether, under either selective incorporation or fundamental rights analysis, the fourteenth amendment incorporated Heller's holding and made it applicable to the states.

We are all instrumentalists; we eagerly and alternately criticize judicial restraint and judicial activism whenever either suits our purpose. That's not a liberal failing or a conservative failing; it's a human failing.
6.2.2009 9:56am
cboldt (mail):
-- I don't undestand the critique in the post. --
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Kopel's post essentially argues that the 2nd circuit Toner conclusion "RKBA is not a fundamental right" is an incorrect read of Miller; that the Heller court finding 2nd amendment is about an individual right is the same as concluding the RKBA is a fundamental right; and the 2nd Circuit, in Maloney is in error because it didn't address finding (or not) the RKBA as a fundamental right that requires federal protection under the 14th amendment.
6.2.2009 9:57am
DennisN (mail):

Violence is wrong.


Then, if you are attacked, you may not call the police, as they may be required to use violence to protect you.

Give me your wallet.
6.2.2009 9:58am
Anderson (mail):
Bach has the same defect in reading and application of Presser that Maloney has

Well, that's great for airy-fairy law profs and blog commenters; but real judges have to respect precedents.
6.2.2009 9:59am
Smallholder (mail) (www):
Sotomayer's reading of Miller was consistent with the rest of the courts at the time it was written (2004). Whether or not individual rights proponents like it or not, and setting aside the semantic games people play with the unresolved nature of Miller, the Supreme Court had indicated that the 2nd Amendment did not create an individual right (if an individual right existed, the issue of military use would not have come up - the referral for a determination demonstrates that the court viewed it as a militia protection).

But Heller overturned that precedent - it's Brown for Plessy. There is now an individual right to bear arms, whether the militia-interpretation proponents like it or not. Granted, it's a right that is vague and will need to be fleshed out by subsequent decisions, but Heller is pretty clear - you have a right to self-protection.

Given that Heller came four years after Sanchez-Villar, perhaps Sotomayer would now rule differently. Or perhaps she will push to overturn Heller and return to the Miller precedent. But I don't think Sanchez-Villar is a good indicator because she clearly relied on the Miller guidance from the highest court.

And for those who claim Sotomayer's opinion lacked analysis, how do you square that with the included quote in the OP - she directly cites the Miller case.
6.2.2009 10:03am
cboldt (mail):
-- Well, ["Maloney and Bach misread and misapply Presser" is] great for airy-fairy law profs and blog commenters; but real judges have to respect precedents. --
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Asserting that courts are bound to follow precedent is not responsive to a contention that a precedent has been misread or misapplied.
6.2.2009 10:08am
Anderson (mail):
Cboldt, do you genuinely not understand the point, or am I missing something?

The 2d Circuit had addressed the incorporation issue. Period. Later panels were not free to revisit that issue, barring a clear holding of the SCOTUS to the contrary. And Heller did not provide that holding.

What part of that do you disagree with? Please explain. Thanks!
6.2.2009 10:12am
cboldt (mail):
-- And for those who claim Sotomayer's opinion lacked analysis, how do you square that with the included quote in the OP - she directly cites the Miller case. --
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The lacks fundamental rights analysis argument (which, FWIW, I think is weak) includes the element that the Miller language as to type of weapon can't be read for a proposition relating to presence or absence of fundamental right.
6.2.2009 10:18am
Lou Gots (mail):
Brett has correctly reported Miller. We should be almost ashamed that for all those years judges and scholars misstated that case as standing for the collective right interpretation of the Second Amendment. On the contrary, the Miller Court assumed an individual right, holding only that on the scanty record the defendant had not sustained his burden of showing that the right applied to the weapon in question.

Of course we can easily imagine how Miller's case could have been proven. Historians, ordnance experts and WWI combat veterans all could have testified to how shotguns are used in trench warfare, and how they were sometimes cut down for convenience.

The Miller issue continues to be extremely germane to the emerging Second Amendment jurisprudence. The RKBA is not about hurting little animals or breaking flying crockery, it is about shooting people who need shooting. Of course this means all kinds of guns we may use for individual and collective self-defense, but logically the most deadly, the most threatening, the so-called "assault weapons" would be the most protected.
6.2.2009 10:25am
cboldt (mail):
-- The 2d Circuit had addressed the incorporation issue. Period. Later panels were not free to revisit that issue, barring a clear holding of the SCOTUS to the contrary. --
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I disagree with that part. What should a Circuit Court judge do, if on comparing prior circuit construction with SCOTUS, finds the Circuit was flat wrong? In this case, the panels said "We got it right before, and we are getting it right again."
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My question is rhetorical. I answered your question as a courtesy. The question of how a Circuit might address its own error is not responsive to a contention that a precedent has been misread or misapplied.
6.2.2009 10:27am
Justin (mail):
Maybe I'm misreading Heller, but what exactly in that case stated that the 2nd Amendment RKBA was "fundamental"?
6.2.2009 10:45am
LipstickPig (mail):
"Brett has correctly reported Miller. We should be almost ashamed that for all those years judges and scholars misstated that case as standing for the collective right interpretation of the Second Amendment."

Yeah, it took more than 200 years for USSC to come to its senses when the far right prolifers for death party finally got power!

Imagine all that time they were wrong! LOL!
6.2.2009 10:45am
Anderson (mail):
The question of how a Circuit might address its own error is not responsive to a contention that a precedent has been misread or misapplied.

Okay, well, that's just wrong. For Sotomayor's purposes, the answer to the incorporation question just was what her prior panel said it was. I presume the 2d Cir. is like the 5th in that it would take an en banc ruling of the 2d Cir. to reverse the previous panel decision.

Criticizing Sotomayor for following a previous 2d Cir. precedent is simply misunderstanding the duty of a judge.

... Leaving aside, of course, whether nunchuks even fall under the ambit of the Second Amendment. Can we hear from someone please about the Original Intent here? Any kung fu fans amongst the Founders?
6.2.2009 11:05am
tokugawa (mail):

Are nunchuks the type of weapon protected by the Second Amendment?


per sotomayor, only if you are part of a well regulated ninja clan
6.2.2009 11:09am
Anon321:
-- The 2d Circuit had addressed the incorporation issue. Period. Later panels were not free to revisit that issue, barring a clear holding of the SCOTUS to the contrary. --


I disagree with that part. What should a Circuit Court judge do, if on comparing prior circuit construction with SCOTUS, finds the Circuit was flat wrong?


I would think that the most procedurally appropriate thing to do would be (1) to acknowledge that a prior panel had decided the question at issue, (2) speculate in dicta that the prior panel was in error, in part because it misread earlier Supreme Court case law, (3) concede that, despite this error, one panel is not permitted to overrule a prior panel, and (4) invite the losing party to petition for en banc consideration, while suggesting to other judges of the court that they grant en banc review.

It happens all the time that a panel of the Court of Appeals will interpret a Supreme Court case to stand for proposition X. If a subsequent panel could come along and say that it was ignoring the earlier panel's decision because it disagreed with its reading of the Supreme Court case in question, the rule that one panel cannot overrule another would be fairly ineffective.
6.2.2009 11:15am
David E. Young (mail) (www):
For J. Aldridge:

The Virginia Ratifying Convention quotes presented above about the state being able to arm its militiamen related to the fact that Congress was given power to provide for arming the militia (concurrent power), yet, the laws of Congress were to be paramount to state laws and the state constitutions in any event. Mason and Henry were arguing that, in effect, Congress had complete control (except appointing officers and training) over the militia, and the states were left with none of that power.

The result of this argument and the amendment proposed to solve it was #11, relating to militia powers, from the list of "other" amendments, not the Second Amendment predecessor in the proposed Bill of Rights that was based directly on the 1776 Virginia Declaration of Rights. Obviously, adding existing state bill of rights protections to the Constitution, such as that adopted as the Second Amendment predecessor, could not have been designed to shift power back to the state governments since they existed prior to the writing of the Constitution and the provisions were understood as limits on state government in the first place.

Those supporting gun control laws have routinely mixed up arguments about militia powers and the separate arguments about the need for a Bill of Rights based upon state bill of rights protections. The latter are the source of the Second Amendment, not the former, which is the result of the militia powers dispute.

The proposed Virginia militia powers amendment stated:

"11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same." [OSA, p.460]

This is the specific amendment that was designed to solve the problem Henry and Mason were discussing, noted by J. Aldrige.

Virginia's proposed Second Amendment related Bill of Rights protection stated:

"17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power." [OSA, p. 459]

This is direclty based on the 1776 Virginia Bill of Rights with added bill of rights language taken from other state bills of rights. The Virginia proposed Bill of Rights consists entirely of protections taken from existing state bills of rights, none of which could be related to shifting powers back to the states or to guaranteeing state government powers because they were understood as limits on state government.

For more information on this subject, Part 18 of the series, Root Causes of Never Ending Second Amendment Dispute, at On Second Opinion Blog directly relates to the argument J. Aldridge has presented. The post examines the major error in the professional historians' Heller brief of substituting the Second Amendment predecessor for the above militia powers proposal as the result of their militia powers dispute history presented to the Supreme Court.

Also, for anyone who wants to instantly confirm for themselves that the historians' Heller brief arguments, which underpin J. Aldridge's argument, contain clear errors of fact, take the Challenge to Supporters of the Heller Dissent at On Second Opinion Blog.
6.2.2009 11:17am
Anderson (mail):
Here's a paragraph from Bach (slip op. at 18):

We must follow Presser. Where, as here, a Supreme Court precedent "has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to th[e Supreme] Court the prerogative of overruling its own decisions." Rodriquez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); see also id. at 486 (Stevens, J., dissenting). The Court has cautioned, in the context of constitutional interpretation, that "courts should [not] conclude [that] more recent [Supreme Court] cases have, by implication, overruled an earlier precedent." Agostini v. Felton, 521 U.S. 203, 207 (1997); see also id. at 258 (Ginsburg, J., dissenting). Even if a Supreme Court precedent was "'unsound when decided'" and even if it over time becomes so "'inconsistent with later decisions'" as to stand upon "'increasingly wobbly, moth-eaten foundations,'" it remains the Supreme Court's "prerogative alone to overrule one of its precedents." State Oil Co. v. Khan, 522 U.S. 3, 9, 20 (1997) (quoting Khan v. State Oil Co., 93 F.3d 1358, 1363 (7th Cir. 1996) (Posner, J.)). Thus, "regardless of whether appellant[] agree[s] with the Presser analysis, it is the law of the land and we are bound by it. The[] assertion that Presser is illogical is a policy matter for the Supreme Court to address." Quilici, 695 F.2d at
270. We cannot overrule the Supreme Court.


(Thanx to Crime &Federalism for the op link.)
6.2.2009 11:22am
cboldt (mail):
-- Criticizing Sotomayor for following a previous 2d Cir. precedent is simply misunderstanding the duty of a judge. --
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My criticism is that the 2nd Circuit, including Sotomayor, have failed to discharge their duty to follow binding precedent of the United states Supreme Court. That they do so repeatedly does not cure the error, and does not cause them to be faithfully executing their duty.
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The entire lot of them, Sotomayor included, endorse a reading of Presser that is opposed to the proposition that Presser stands for.
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I reject Anderson's assertion that a Circuit is not free to reverse, or an individual judge is not free to dissent, until SCOTUS weighs in, again, on exactly the same point it addressed in earlier cases [Barring a holding on the incorporation issue in Heller, Sotomayor was bound by her circuit's precedent in Bach, was she not?]
6.2.2009 11:33am
cboldt (mail):
-- Here's a paragraph from Bach (slip op. at 18):
We must follow Presser. ...

Following which they proceed to follow a direction that is OPPOSITE to Presser.
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Presser is about whether or not a municipality or state can require a parade permit. Yes, it can. Saying that it's a parade with guns doesn't make it protected by the 2nd amendment.
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The 2nd circuit isolated a statement in Presser, and thereby utterly misrepresented what Presser said (in dicta) about the power of the state vis-a-vis the RKBA (which stands separately from the right to conduct a parade).
6.2.2009 11:38am
Anderson (mail):
Okay. Shorter Cboldt: "the law is an ass."

Well, yes, the law often is. But still, nothing changes the fact that Bach held X, and that Sotomayor's panel was bound to follow X.

Pages 15-17 of Bach teem with citations to other courts which reached the same or similar holding. It wasn't something they chose to make up.

Finally, here's the Heller Court on Presser:

Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

Slip op. at 48 n.23. The Court also stated in the same footnote that "incorporation" was "a question not presented by this case." The Court implied that a proper analysis might reach a different result, but was clear as a BELL that Heller did not reach the incorporation issue.

Now, tell me again, someone, how Heller should have informed Sotomayor that Presser did not stand for the nonincorporation of the Second Amendment? Better use simple words so that I can understand your argument, which is sure to be a sophisticated one indeed.
6.2.2009 11:46am
Brett Bellmore:

holding only that on the scanty record the defendant had not sustained his burden of showing that the right applied to the weapon in question.


Well, of course the record was scanty. At the Supreme court level, the Miller case was a trial in abstentia; Only the federal government was represented, Miller having vanished as soon as he was released, apparently being killed shortly thereafter. And the federal government's arguments were STILL rejected by the Miller court, even in the absence of anybody arguing the other side.
6.2.2009 11:49am
Brett Bellmore:

Yeah, it took more than 200 years for USSC to come to its senses when the far right prolifers for death party finally got power!


What "came to it's senses"? The Supreme court has been unswerving in holding the 2nd to guarantee an individual right. It did hold that the amendment didn't apply to the states, at a time when it was refusing to incorporate ANY of the amendments. But it's never endorsed the 'collective right' interpretation. It just took a 70 year holiday from accepting 2nd amendment cases, while the lower courts did the dirty work of killing the amendment off.
6.2.2009 11:53am
cboldt (mail):
-- Okay. Shorter Cboldt: "the law is an ass."
Now, tell me again, someone, how Heller should have informed Sotomayor that Presser did not stand for the nonincorporation of the Second Amendment? Better use simple words so that I can understand your argument, which is sure to be a sophisticated one indeed.
--
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There is no need to read Heller in order to read Presser; and incorporation is not the only route to finding that the people right to keep and bear arms does not depend on the 2nd amendment.
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One point of my posts is to entice readers to take up Presser for themselves, and decide if later and/or lesser Courts have fairly restated its propositions. I do not have the objective of giving you an understanding. I generally avoid interaction with you. I replied to your recent posts only because they provided a venue for me to restate/simplify what I've stated on VC in the past.
6.2.2009 11:57am
Anderson (mail):
Okay, we can distinguish two questions:

(1) Did Presser get the law right?

(2) Was the Maloney court bound to follow the interpretation of Presser stated in Bach and in Heller?

Cboldt says the answer to (1) is "no"; I say the answer to (2) is "yes," irrespective of whether Cboldt is correct about (1) (which he may well be).

Is that accurate?
6.2.2009 12:02pm
David M. Nieporent (www):
More vivid proof: a popular RKBA book about the second amendment is entitled "That Every Man Be Armed."
That's really just "evidence" that you substitute googling for thinking, not that we needed such evidence. The book may be called "That every man be armed," but to claim that it is "about the second amendment" is false. Read the page, rather than just pattern matching a particular phrase for a pathetic attempt at a gotcha:

Halbrook traces the origins of the Second Amendment back to ancient Greece and Rome, and then through the "freemen" movement in 18th century England and France. He demonstrates that the framers of the U.S. Constitution were conscious of such history when they drafted the Second Amendment, and that the Second Amendment was clearly intended to allow possession of firearms not just for defense of personal life and property but also to prevent government infringement of human liberties.

Does that mean that a quote from ancient Greece would also be a quote about the Second Amendment? No. It means that he's tracing -- as the subtitle says -- The Evolution of a Constitutional Right. Which means he's discussing things that came before, that shaped or illustrated the framers' thinking. He's not asserting that Patrick Henry's quote is itself an attempt to interpret the actual constitutional effect of the Second Amendment.
6.2.2009 12:06pm
ctd:
He talks about every man being armed not individually, but armed through a militia.

You fail to note that almost immediately after enacting the 2nd Amendment, the Founding Fathers enacted the Militia Act of 1792, wherein every man expected to serve in the Militia was required by law to arm himself at his own expense. Insofar as the government would arm militia members, that would cover equipment which no individual would be expected to afford/manage on his own (crew-served cannons, explosives, etc.). There is NOTHING indicating that, if/when a militia member showed up with equipment beyond what was required or supplied, he would be punished for possession instead of lauded &appreciated for his preparations; nay, the notion of punishing upstanding citizens for being armed as they personally saw fit would be viewed as an absurdity by the Founding Fathers (some of which personally owned cannons or other advanced/expensive/crew-served arms).

If that principle were continued today as originally intended in 1792 by those who wrote and enacted the Constitution and early supporting laws, every able-bodied male citizen 17-45 would be required to own an M16, ten high-capacity magazines, and 1000 rounds of armor-piercing ammo - at their own cost (about $1500) - and would be welcome to own anything more advanced (howitzer, RPG, gunship) in the hopes that it may benefit the Militia. Instead of following the clear lead of our Founding Fathers, owning something as militarily mundane as a recent-model M16 is punishable by 10 years federal prison and $250,000 fine, owning new high-cap mags were punishable for a decade until recently, and AP ammo is prohibited depending on composition (with an ongoing push to expand the prohibition). What ever happened to "shall not be infringed"?
6.2.2009 12:09pm
LarryA (mail) (www):
Brett has correctly reported Miller. We should be almost ashamed that for all those years judges and scholars misstated that case as standing for the collective right interpretation of the Second Amendment.
Well, it hasn't actually been "all those years." As I remember there wasn't any concept of a "collective right" interpretation at least from the Gun Control Act of 1968, when I started following the issue, until the late 1970s when gun banners thought it up. That's why gun ban laws prior to then took backdoor approaches, as in the Chicago and D.C. laws. Those laws didn't "ban" guns, they required guns be registered then refused to register them. Miller itself was the premier example. Instead of banning the NFA devices Congress imposed what was then a huge tax on them.

Little mainstream media prior to 1980 is online, of course, but I have searched, and so far I can't find a single reference to "collective right" prior to 1978.
Hey, Republicans: once again you look like the total hypocrites you are. No wonder your party is now even more that party of aging old "prolife" men who dream of guns and wars to keep your uhm working.
You might want to review the voting records on the recent guns-in-National-Parks amendment and the D.C.-gun-laws amendment. Turns out a lot of this Congress's Democrats are pro RKBA. Also, the most recent pro-gun grassroots movement, Students for Concealed Carry on Campus consists mainly of 20-somethings. And don't confuse the Second Amendment Sisters with "men." Then there's the Pink Pistols, who don't have a problem with "uhm" either. Be careful when you drop the soap.
6.2.2009 12:10pm
cboldt (mail):
-- Cboldt says the answer to (1) is "no" --
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That misstates my contention.
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Presser says what Presser says. My comments have been that later courts have ERRED in restating what Presser stands for.
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Presser is about the right of the people to conduct armed parades without a local permit. The Presser Court said "no." The 2nd amendment is involved in the case because Presser said that bringing guns to a parade made the parade a protected action under the 2nd amendment, and the feds should stricken down the "needs a parade permit" law as being a violation of the 2nd amendment. The Court said the feds can't use the 2nd amendment to invalidate a parade permit law; and also said that the states were NOT free to infringe the RKBA.
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Neither question (1) or (2) is responsive to the contention that later/lesser Courts have misconstrued and/or misapplied Presser.
6.2.2009 12:12pm
David M. Nieporent (www):
Sotomayer's reading of Miller was consistent with the rest of the courts at the time it was written (2004). Whether or not individual rights proponents like it or not, and setting aside the semantic games people play with the unresolved nature of Miller, the Supreme Court had indicated that the 2nd Amendment did not create an individual right (if an individual right existed, the issue of military use would not have come up - the referral for a determination demonstrates that the court viewed it as a militia protection).
Uh, that's exactly backwards: if an individual right DIDN'T exist, the issue of military use would not have come up. There was no reason to address the type of weapon -- which is what the court did -- if Miller had no rights under the second amendment. Indeed, he wouldn't have had any standing to raise the issue. The court, in fact, treated him as having an individual right, and then looked at what the scope of that right was, ultimately holding that the right only applied to weapons in ordinary use for a militia.
6.2.2009 12:15pm
Anderson (mail):
Those following Cboldt's argument might wish to read Presser:

We are next to inquire whether the fifth and sixth sections of article 11 of the Military Code are in violation of the other provisions of the constitution of the United States relied on by the plaintiff in error. The first of these is the second amendment, which declares: '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.'

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 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.'


So, the Court was presented with an argument that the 2d Amendment applied, and found that the "conclusive answer" was that the Amendment wasn't incorporated vs. the states, following Cruikshank.
6.2.2009 12:24pm
cboldt (mail):
-- Pages 15-17 of Bach teem with citations to other courts which reached the same or similar holding. It wasn't something they chose to make up. --
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Anybody so inclined can read Presser, and can compare what Presser says with what all these other courts claim Presser says. The below blockquote is verbatim from Presser:
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.
6.2.2009 12:25pm
Anderson (mail):
The court, in fact, treated him as having an individual right, and then looked at what the scope of that right was, ultimately holding that the right only applied to weapons in ordinary use for a militia.

That's a fair reading, but the Court could have been proceeding arguendo as per the individual right question. Of course, Miller has foreclosed this.

I like the language in Cruikshank to the effect that no right is granted by the Second Amendment, which merely prohibits infringement of a preexisting right. That seems compatible with Heller.
6.2.2009 12:28pm
zippypinhead:
Even if a Supreme Court precedent was "'unsound when decided'" and even if it over time becomes so "'inconsistent with later decisions'" as to stand upon "'increasingly wobbly, moth-eaten foundations,'" it remains the Supreme Court's "prerogative alone to overrule one of its precedents." State Oil Co. v. Khan, 522 U.S. 3, 9, 20 (1997) (quoting Khan v. State Oil Co., 93 F.3d 1358, 1363 (7th Cir. 1996) (Posner, J.)).
Well, I guess we can guess how the 7th Circuit panel is going to come out on the incorporation issue in the pending Chicago cases (as if Posner's other extrajudicial comments on RKBA over time and the way oral argument went wasn't enough of a hint...).
6.2.2009 12:29pm
Anderson (mail):
Doh, for Miller read Heller; they, um, both have 6 letters and end in "-ller" ....
6.2.2009 12:29pm
David M. Nieporent (www):
I reject Anderson's assertion that a Circuit is not free to reverse, or an individual judge is not free to dissent, until SCOTUS weighs in, again, on exactly the same point it addressed in earlier cases [Barring a holding on the incorporation issue in Heller, Sotomayor was bound by her circuit's precedent in Bach, was she not?]
You can reject it, but it doesn't change the fact that Anderson is correct. Only the circuit sitting en banc (or, of course, the Supreme Court) can reverse an earlier decision of the circuit; that's so that the law of the circuit doesn't depend on what three judge panel is picked.
6.2.2009 12:32pm
cboldt (mail):
-- following Cruikshank --
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In Cruikshank, the question involving the 2nd amendment was stated (by SCOTUS) as to whether or not the 2nd amendment operated against private actors, i.e., individuals who would prevent other individuals from keeping and/or bearing arms. The Cruikshank Court found that the people had to look to state and local laws for protection against infringement by non-government actors.
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Presser took the Cruikshank language and described it in the context of a state/municipal regulation that was claimed as running afoul of the right to keep and bear arms.
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Anderson is doing the same isolation of statements as practiced by the Courts as the misread and misapply Presser.
6.2.2009 12:33pm
cboldt (mail):
-- Only the circuit sitting en banc (or, of course, the Supreme Court) can reverse an earlier decision of the circuit --
.

That's not what Anderson said. He said that the Circuit could not correct its reading of Presser unless SCOTUS called the Circuit out. He said that Sotomayor was bound by Circuit precedent (Bach) to concur with the past Circuit application of Presser, even if Sotomayer was to read Presser and independently notice that the Circuit had misread/misapplied Presser.

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If you agree with that, then you are wrong too.

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If you are right, then the principle is that only SCOTUS can correct errors below, and any court that commits error below can't be criticized for error, because it is adhering to its own precedent.

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And again, all that discussion is separate from the point I raised in the first place, that being whether or not Presser was correctly read and applied.
6.2.2009 12:41pm
Soldier of Fortune:
As part of the unorganized milita, every non-felon citizen should be able to possess whatever arms can be carried by an individual member of the infantry, such as the following: bayonet, M-4 Carbine, M-9 Pistol, M-16 Rifle, M203 Grenade Launcher, M240B Machine Gun, M-249 Squad Automatic Weapon, M-24 Sniper Weapon, M-40A1 Sniper Rifle, M-1014 Joint Services Combat Shotgun, MP-5 Submachine Gun, and all hand grenades.

All for personal defense, of course.
6.2.2009 1:03pm
Michael Masinter (mail):
The Seventh Circuit, speaking through the notorious leftwing radical Frank Easterbrook, has joined with the second circuit in NRA v. City of Chicago in concluding that binding circuit precedent forecloses incorporation of second amendment rights, and that the matter is one for SCOTUS, not a circuit panel: http://www.ca7.uscourts.gov/tmp/O01FG24A.pdf
6.2.2009 1:09pm
Annoyed and Bored:
Cbodlt, the rule in the Second Circuit is that only an en banc panel can overturn a prior panel's decision in the absence of an intervening Supreme Court case.

Also, Kopel's denunciation of this case as bad judging is pretty annoying. This was a pro se case in which none of these arguments about the continuing viability of Toner were raised. Indeed, Maloney could not have raised these issues even if he had been represented by counsel because his appeal was fully briefed in October 2007, about nine months before Heller was decided. Criticizing a judge for not addressing, sua sponte, issues that the litigants did not put before them, indeed which they could not put before them, is extremely lame.
6.2.2009 1:12pm
RKV (mail):
Article 1 Section 8 of the Constitution spells out the missions of the militia (enforce laws, suppress rebellions and repel invasions to be specific). Arms suitable for the three missions are protected from Federal infringement by the 2nd, adn have been since the day the BOR was passed. Subsequent to the passage of the 14th Amendment such protections should be extended to citizens vs the states - and can be done so with via substantive due process or privileges and immunities. The Heller majority inferred this point in dicta, and we will see more in Nordyke or McDonald shortly [I hope]. Should Soldier of Fortune above add a few more items to his list, it would be more complete and pass the test offered up in Miller (specifically is a sawed off shotgun suitable for militia use) such as the combat shotgun (e.g. M9200), saps, billyclubs, mace, etc. as used by police (and prohibited to us non-government employees) and switchblades (which are issued to paratroops, federal stock number 1095-01-456-4457).
6.2.2009 1:25pm
cboldt (mail):
-- Criticizing a judge for not addressing, sua sponte, issues that the litigants did not put before them, indeed which they could not put before them, is extremely lame. --
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I infer you are referring to Kopel's criticism.
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My criticism has been focused on how the Circuits have (consistently) erred in reading and applying Cruikshank/Presser and Miller.
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I disagree with Kopel when he suggests that the Circuits have correctly applied Cruikshank/Presser.
In the [Maloney] opinion by Judges Pooler, Sotomayor, and Katzmann, the per curiam judges first cite Presser v. Illinois (1886) for the proposition that the Second Amendment directly applies only to the federal government, and not to the states. They also cite a more recent Second Circuit case which relies on Presser, for the same proposition. Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005).
In this regard, Judges Sotomayor et al. are plainly correct.

The stated proposition, without more, misleads the reader to false conclusions as to how SCOTUS (in Presser) sees the power of municipalities and states to encroach on the RKBA.
6.2.2009 1:26pm
NickM (mail) (www):
Actually, Annoyed, it's anything but lame. A Supreme Court decision that may be controlling on one or more issues that comes down after briefing calls for, at the very least, supplemental briefing. Courts frequently order this sua sponte.

Nick
6.2.2009 1:32pm
cboldt (mail):
The Seventh Circuit ... NRA v. City of Chicago ...
http://www.ca7.uscourts.gov/tmp/O01FG24A.pdf
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Thank you for the news and the link. No surprise there. I think the pro-gun litigants and their supporters have been exceptionally meek as far as educating the public goes, in particular by not discussing what SCOTUS really decided in the Cruikshank/Presser and Miller cases. They've agreed completely with the terms of argument as set forth by courts that have corrupted the meaning of precedent in order to obtain a desired result.
6.2.2009 1:33pm
David M. Nieporent (www):
-- Only the circuit sitting en banc (or, of course, the Supreme Court) can reverse an earlier decision of the circuit --

That's not what Anderson said. He said that the Circuit could not correct its reading of Presser unless SCOTUS called the Circuit out.
That's not quite what he said. What he said is what you write in your next sentence, which is different:
He said that Sotomayor was bound by Circuit precedent (Bach) to concur with the past Circuit application of Presser, even if Sotomayer was to read Presser and independently notice that the Circuit had misread/misapplied Presser.
Yes, that's what he said, and he's correct.
If you agree with that, then you are wrong too.
And yet, that's the law.
If you are right, then the principle is that only SCOTUS can correct errors below, and any court that commits error below can't be criticized for error, because it is adhering to its own precedent.
No; that's not right, because you ignored what I wrote, which is that the circuit court sitting en banc can reverse a circuit court decision.

But short of that, your conclusion is accurate: a lower court is not making an "error" by adhering to binding precedent, no matter how obviously wrong one feels that precedent is. (IMO, a judge ought to write, "I think this is mistaken and a higher court should overrule it; nonetheless, I am bound by precedent to rule such-and-such.")
6.2.2009 1:35pm
Anderson (mail):
IMO, a judge ought to write, "I think this is mistaken and a higher court should overrule it; nonetheless, I am bound by precedent to rule such-and-such."

Agreed that if Sotomayor thought so, that would have been proper; and given the hint in Heller's footnote 23, I think that I personally wouldn't have been able to resist my own footnote, observing that Cruikshank and its progeny might be living on borrowed time.

.. But then, I am the kind of person who feels obliged to share my opinions even on blog threads. Perhaps a wise Latina would feel otherwise.

Cboldt: Anderson is doing the same isolation of statements

Whatever. If anyone doubts the honesty of my presentation, let 'em look at Presser, where the portion I've quoted is where the Court DIRECTLY ADDRESSES the Second Amendment argument lodged by Presser where he claims that the Amendment gives him the right to parade or drill or whatever.

I do not see where it makes one whit of difference what context the incorporation issue arose from; the point is whether the Amendment was held to be incorporated, or not. I don't see quite how it can be incorporated as to bearing arms but not as to militia formation; indeed, the actual text of the Amendment strongly implies that the need for the militia is paramount (and the bearing of arms is essential to that end, construing "militia" broadly as did Heller).
6.2.2009 1:50pm
cboldt (mail):
-- Yes, that's what he said, and he's correct. --
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Scrollback for what he said ...
The 2d Circuit had addressed the incorporation issue. Period. Later panels were not free to revisit that issue, barring a clear holding of the SCOTUS to the contrary. And Heller did not provide that holding. What part of that do you disagree with?

I was invited to choose a part of the full statement, so skipped the issue of "incorporation," reasonably so in light of my original contention that the Circuit Courts had misconstrued Presser, and did not discuss incorporation.
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That left the part that I disagreed with being "Later panels were not free to revisit that issue, barring a clear holding of the SCOTUS to the contrary." Notice that the assertion isn't Later panels were not free to revisit that issue," without more. It was that later panels are stuck with their own first conclusions, barring a clear holding of the SCOTUS to the contrary.
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Do you agree with Anderson? Yes or no?
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And I'll repeat for probably the fifth or sixth time, this point about whether and how a Circuit can revers/correct itself is a side-show to my primary contention; which is whether or not the Circuits correctly read and applied the law of Presser.
6.2.2009 1:59pm
pluribus:

IMO, a judge ought to write, "I think this is mistaken and a higher court should overrule it; nonetheless, I am bound by precedent to rule such-and-such."

Not if the judge doesn't think it is mistaken. If the judge thinks the case was correctly decided, why indeed should he or she say it should be overruled? What makes you assume that the three-judge panels on both the Second Circuit and now the Seventh Circuit think the previous decisions were mistaken?
6.2.2009 2:00pm
cboldt (mail):
-- the point is whether the Amendment was held to be incorporated --
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You are framing the issue that way; it is not at all how I framed it. My contention was as to whether or not the Presser (and Miller) precedent has been misread and misapplied. More particularly, without regard to the presence or absence of the 2nd amendment, how far or in what regards may a state regulate so as to not run afoul of the RKBA. Presser doesn't answer that, because the fact pattern was obtaining a parade permit. But SCOTUS, in Presser, says the states may NOT prohibit the people from keeping and bearing arms.
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And now we have the 2nd and 7th Circuits asserting that Presser stands for the proposition that the states MAY so regulate; and Presser COMPELS that very conclusion. That is utter nonsense on stilts.
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I do appreciate your insistence that readers look to Presser themselves. Sunlight is a good disinfectant.
6.2.2009 2:07pm
RPT (mail):
This thread illustrates how good this site can be. Lots of analysis and little snark from people who (unlike me) are very familiar with the issues, cases, arguments, etc.
6.2.2009 2:08pm
Anderson (mail):
But SCOTUS, in Presser, says the states may NOT prohibit the people from keeping and bearing arms.

It says that with the same qualifying language about militia membership that has made the Second Amendment itself such a dark cloud. The portion you quote, which follows upon my blockquote above, can in fact be read as allowing weapon ownership inasmuch as necessary for militia membership.

Regardless, on incorporation, Presser was simply following Cruikshank.

Do you contend that Cruikshank is incorrectly read as holding that the Second Amendment is not incorporated against the states? Focusing on Presser for that contention seems a bit odd.

See Heller, slip op. at 47:

United States v. Cruikshank, 92 U. S. 542, in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right "is not a right granted by the Constitution [or] in any manner dependent upon that instrument for its existence. The second amendment . . . means no more than that it shall not be infringed by Congress." 92 U. S., at 553. States, we said, were free to restrict or protect the right under their police powers.
6.2.2009 2:14pm
cboldt (mail):
-- Do you contend that Cruikshank is incorrectly read as holding that the Second Amendment is not incorporated against the states? Focusing on Presser for that contention seems a bit odd. --
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It's not at all odd. The issue in Cruikshank didn't involve a state regulation against keeping and bearing arms. The question was whether the feds could use the 2nd amendment to charge a private actor with conspiracy to deprive another private actor of the RKBA.
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Cutting to the chase, however, we have a fundamental and irreconcilable difference of opinion as to whether or not the people's RKBA depends on the 2nd amendment being Incorporated against the states, by a federal court. SCOTUS, in Presser, says "no," even setting the 2nd aside, states cannot prohibit the people from keeping and bearing arms. You insist that absent incorporation (a gift/grant from the feds), the people do NOT have a RKBA.
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I accept that you are hostile to the RKBA. Good day.
6.2.2009 2:24pm
Anderson (mail):
And like I'd prearranged it, here's the Seventh Circuit holding that the 2d Am. continues not to be incorporated. Lacking the benefits of Cboldt's argument, obviously.

I accept that you are hostile to the RKBA.

Silliness. I have two handguns myself. We're not talking about rights; we're talking about what the law ACTUALLY SAYS about those rights.
6.2.2009 2:27pm
cboldt (mail):
-- The portion you quote, which follows upon my blockquote above, can in fact be read as allowing weapon ownership inasmuch as necessary for militia membership. --
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Agreed, to the same extent that weapon ownership is a criteria necessary for militia membership.
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 ...
6.2.2009 2:31pm
cboldt (mail):
-- Silliness. I have two handguns myself. --
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That is utterly irrelevant to how you see the RKBA, and to how you choose to read and apply the law of the United States Supreme Court as expressed in Cruikshank, Presser and Miller.
6.2.2009 2:34pm
David M. Nieporent (www):
That left the part that I disagreed with being "Later panels were not free to revisit that issue, barring a clear holding of the SCOTUS to the contrary." Notice that the assertion isn't Later panels were not free to revisit that issue," without more. It was that later panels are stuck with their own first conclusions, barring a clear holding of the SCOTUS to the contrary.

Do you agree with Anderson? Yes or no?
He wrote later panels, so that portion of the statement is correct. When he said "barring a clear holding of SCOTUS," he should have included en banc review as another option. It's an omission which would get him a bad grade on a CivPro exam, but it's irrelevant for the purposes of this discussion, which is about Sotomayor. The point stands: Sotomayor was bound by circuit precedent and was not free to decide that Presser meant something different.

It doesn't matter that the Second Circuit misinterpreted Presser; that doesn't mean that Sotomayor did anything wrong in going along with that misinterpretation.
6.2.2009 2:41pm
Anderson (mail):
he should have included en banc review as another option. It's an omission which would get him a bad grade on a CivPro exam

Fwiw, I did mention en banc reversal above, just not in the part that Cboldt is picking.

Partial credit?
6.2.2009 2:44pm
David M. Nieporent (www):
Silliness. I have two handguns myself. We're not talking about rights; we're talking about what the law ACTUALLY SAYS about those rights.
Well, technically we're talking about what the COURTS say about what the law actually says about those rights.
6.2.2009 2:48pm
David M. Nieporent (www):
Fwiw, I did mention en banc reversal above, just not in the part that Cboldt is picking.
Yeah, I don't read that closely.
Partial credit?
Grade grubber.
6.2.2009 2:49pm
cboldt (mail):
-- Sotomayor was bound by circuit precedent and was not free to decide that Presser meant something different.
It doesn't matter that the Second Circuit misinterpreted Presser; that doesn't mean that Sotomayor did anything wrong in going along with that misinterpretation.
--
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Sort of a safety in numbers rule of the jungle. If they all get it wrong, they are all beyond criticism.
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Yeah, I know, if they all cherry pick Presser to support their proposition, and I read further in Presser so as to disagree with their application, then my criticism is based on error. Been there, got the tee-shirt.
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But I trust my lying eyes more than I trust theirs (plus, I read the whole case and they didn't); and I think it's reasonable to 1) point out the part of Presser discussing RKBA being out of state reach even if the 2nd didn't exist, and 2) encourage the public to read the cited cases and analyze for themselves if the learned judges got it right.
6.2.2009 2:54pm
cboldt (mail):
-- When he said "barring a clear holding of SCOTUS," he should have included en banc review as another option. --
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He kept pointing back to a need for SCOTUS to reverse. E.g., referring to Heller. Nowhere did he offer that a Circuit was free to reverse itself, or even that an individual judge has the absolute freedom to read Presser anew.
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Grade inflator. ;-)
6.2.2009 3:05pm
cboldt (mail):
Oops -- I see he did offer en banc. Sorry about that. Grade granted.
6.2.2009 3:08pm
Tony Tutins (mail):
If you let people own nunchaku, then they'll want to own switchblades, brass knuckles, billy clubs, and throwing stars. Just stick with aluminum baseball bats.
6.2.2009 3:20pm
J. Aldridge:
Brett Bellmore said: "Constitutional amendments do not have a single purpose rule. As you point out, it WAS omitted. Perhaps because it had nothing to do with the right being guaranteed?"

The conscientious objector was opposed and removed precisely because the objection had everything to do with keeping and bearing arms.
6.2.2009 6:54pm
jukeboxgrad (mail):
nieporent:

The book may be called "That every man be armed," but to claim that it is "about the second amendment" is false.


Really? Stephen P. Halbrook's "That Every Man Be Armed" is not ""about the second amendment?" Are you sure?

I guess that's why Orrin Hatch said this:

That Every Man Be Armed is the definitive book on the historical and legal development of the Second Amendment and our right to bear arms.


Yes, it makes perfect sense to say that "the definitive book on the historical and legal development of the Second Amendment" is not "about the second amendment."

And I guess that's why bookstores like Liberty Books list this book under the heading "Second Amendment Books." Yes, it makes perfect sense to take a book that is not "about the second amendment" and list it under the heading "Second Amendment Books."

And I guess that's why the B&N synopsis begins as follows:

This is an authoritative study of the second amendment, using history and current-day analysis. It is one of the only scholarly works on the subject, but has proven widely accessible.


So the people selling the book call it "an authoritative study of the second amendment," but according to you "to claim that it is 'about the second amendment' is false." Wow. I suppose you should notify B&N to warn them that their description of the book "is false."

Why does this matter? Because you said this:

Wonder how a quote from Patrick Henry that doesn't say what you claim it says, and that has nothing to do with the Second Amendment


And then Aldridge said this:

How come RKBA zealots always quoting him then??????


And then you said this:

They're quoting him, in context, for the purpose of his statement, not as though he were discussing the Second Amendment. … He wasn't discussing what the Second Amendment means.


Trouble is, Aldridge is right and you're wrong. "RKBA zealots" do indeed quote him "as though he were discussing the Second Amendment." I cited 9 examples of this (link, link).

And your response? To make a pointedly unsuccessful attempt at addressing one of the examples, while completely ignoring the other 8. And your attempt at addressing one of the examples was pointedly unsuccessful because it involved trying to promote the idea that a book sold as "an authoritative study of the second amendment" was not "about the second amendment." Really?

It turns out that leading 'RKBA zealot' Stephen Halbrook decided to get the title for his "authoritative study of the second amendment" from the exact same Patrick Henry quote that Aldridge cited. So this is definitely a major instance of a 'RKBA zealot' quoting Henry "as though he were discussing the Second Amendment."

He's not asserting that Patrick Henry's quote is itself an attempt to interpret the actual constitutional effect of the Second Amendment.


Nice job using narrow language to try to relocate the goalposts. No one asserted that "Henry's quote is itself an attempt to interpret the actual constitutional effect of the Second Amendment." The assertion that you mocked and rejected is that "RKBA zealots" quote him "as though he were discussing the Second Amendment." And they do. I showed multiples instances of "RKBA zealots" quoting him "as though he were discussing the Second Amendment." And where did they get that idea? Very possibly from Stephen Halbrook. Because when "an authoritative study of the second amendment" is named after a certain quote from Patrick Henry, observers are going to conclude (either rightly or wrongly) that Henry was "discussing the Second Amendment."

Does that mean that a quote from ancient Greece would also be a quote about the Second Amendment?


If Halbrook had gotten the title of his book from a quote from "ancient Greece," then even the most ignorant 'RKBA zealot' would not conclude that the quote was "about the Second Amendment." Trouble is, Halbrook didn't get the title of his book from a quote from "ancient Greece." Halbrook got the title of his book (which happens to be "an authoritative study of the second amendment") from a quote from Patrick Henry. And even the most ignorant 'RKBA zealot' knows that Henry was a Founding Father. Therefore it is not the least bit surprising to discover that many "RKBA zealots" have concluded (either rightly or wrongly) that Henry's quote was "discussing the Second Amendment."

You said Henry's quote "has nothing to do with the Second Amendment." How exceptionally peculiar that "an authoritative study of the second amendment" carries a title that "has nothing to do with the Second Amendment."

Your claim, that "RKBA zealots" do not quote Henry "as though he were discussing the Second Amendment," is false. Likewise, your claim that Halbrook's book is not "about the second amendment" is also false. I've brought plenty of evidence demonstrating that these claims are false. You've brought this much evidence to support the claims you made: none. When are you going to retract your false claims?
6.2.2009 10:15pm
KFischler (mail):
Maloney -- who is an attorney -- was scarcely the most forceful advocate for the proposition that he was entitled to equitable relief on the ground that New York's Penal Law provision criminalizing the possessing of chuka sticks is violative of the Second Amendment.

The first ground articulated by his Amended Complaint is that the "peaceful training with and twirling of nunchaku in the privacy of one's home is expressive speech" protected by the First Amendment. Although he invoked the Second Amendment as the second of his four causes of action, this claim was advanced with the express qualification "provided that the Second Amendment guarantees a personal right and is applicable against the states." Because Bach's time to file a petition for certiorari with the Supreme Court had not yet expired, Maloney asserted there was still a possibility that Bach v. Pataki might be reversed, and thus, "this cause of action is not frivolous even though it is not actually viable at the time of the filing of this amended complaint." Amended Complaint, pp. 9-10.

In his brief to the Second Circuit, Maloney abandoned his First Amendment claim. But Second Amendment and incorporation doctrine arguments for invalidating the pertinent provisions of the state's Penal Law were not the focus of the brief. He devoted most of its pages to his arguments that New York's absolute ban on possession of nanchuku violated either his Fourteenth Amendment right to substantive due process or the "unenumerated rights" conferred by the Ninth Amendment, placing much reliance on the right to privacy recognized in Lawrence v. Texas and Griswold v. Connecticut.

Maloney did not seek to file a supplemental brief with the Circuit Court after the Supreme Court handed down its decision in D.C. v. Heller. Rather, he wrote a FRAP 28(j) letter to the Second Circuit on July 16, 2008, formally drawing its attention to the decision. He himself conceded there that "Heller is not directly applicable as against state restrictions on the possession of arms in the home", and was content to simply opine, "It seems clear that the [Supreme] Court will soon hold the Second Amendment is among those Bill of Rights provisions that have been 'incorporated' against the states."

Thus -- contrary to Mr. Kopel's characterization -- Maloney did not argue "energetically and extensively that New York [S]tate's ban on nunchaku violated his fundamental rights." His Second Amendment arguments were tepid and flabby, one might say they were no more than cursory. It is therefore scarcely remarkable that the court gave them no greater consideration.

Nor did the panel gratuitously inject that Fourteenth Amendment analysis Mr. Kopel derides as "evasive" and "disingenuous". It is, in fact, responsive to Maloney's showcased argument that it is his *unenumerated* rights which are being violated.
6.3.2009 5:57am
David M. Nieporent (www):
Nice job using narrow language to try to relocate the goalposts.
Nice job being something that the comment policy forbids me from identifying. I did not "relocate" anything. You simply chose -- as you always do -- to deliberately misread what someone said, and then insist that your interpretation is the only valid one. The "narrow language" is the actual topic of this thread; the rest is just your pathetic attempt at a gotcha-by-googling.
6.3.2009 11:54am
jukeboxgrad (mail):
You simply chose -- as you always do -- to deliberately misread what someone said


You said Halbrook's book isn't about the second amendment, even though it's about the second amendment. And you said that RKBA zealots don't quote Henry as if he was discussing the second amendment, even though RKBA zealots do indeed frequently quote Henry as if he was discussing the second amendment.

So what did I "deliberately misread?"

the rest is just your pathetic attempt at a gotcha-by-googling


What you call "gotcha-by-googling" is simply the quaint practice of showing evidence to back one's assertions. Where is the evidence to back your assertions? And when are you going to retract your false claims?
6.3.2009 12:02pm
David M. Nieporent (www):
So what did I "deliberately misread?"
Everything. For instance, I said Halbrook's book isn't about the second amendment because it's about the evolution of the amendment, tracing things that came before -- all the way back to Greece -- to show what shaped or illustrated the framers' thinking. But you deliberately took part of one sentence out of context out of a two paragraph reply to pretend that I said something very different than I actually said.
6.3.2009 2:14pm
jukeboxgrad (mail):
I said Halbrook's book isn't about the second amendment because it's about the evolution of the amendment, tracing things that came before -- all the way back to Greece -- to show what shaped or illustrated the framers' thinking. But you deliberately took part of one sentence out of context out of a two paragraph reply to pretend that I said something very different than I actually said.


Your complete sentence was this:

The book may be called "That every man be armed," but to claim that it is "about the second amendment" is false.


Then you proceed to explain that "Halbrook traces the origins of the Second Amendment back to ancient Greece and Rome," and that "he's discussing things that came before, that shaped or illustrated the framers' thinking." You seem to be implying that he was only "discussing things that came before, that shaped or illustrated the framers' thinking." You said this:

it's about the evolution of the amendment, tracing things that came before -- all the way back to Greece -- to show what shaped or illustrated the framers' thinking


Are you really not capable of expressing yourself clearly and precisely? Or do you choose to be intentionally vague so you can then whine about how you're allegedly being misinterpreted?

You seem to be saying that the book was only about "the evolution of the amendment, tracing things that came before -- all the way back to Greece -- to show what shaped or illustrated the framers' thinking." But that's not the case. He discussed the things that came before, but he also discussed the during and the after. So it's misleading (at best) to claim that the book is "about" the "things that came before." The "things that came before" are just part of his story.

And to the extent that "things that came before" are part of his book, who cares? So what? No one denies that. The fact that he "traces the origins of the Second Amendment" doesn't mean that the book isn't about the second amendment. So why did you say the book isn't about the second amendment?

Your tangent about ancient Greece and Rome is a transparent attempt at misdirection. Yes, Halbrook discussed the ancient origins of the second amendment. But it's utterly unremarkable that a book about the second amendment would discuss the ancient origins of the second amendment. So what? And the ancient origins of the second amendment are utterly irrelevant to the point you and I are discussing. Halbrook didn't write a book about ancient Greece and Rome. He wrote a book about the second amendment. And he didn't get his title from ancient Greece and Rome. He got his title from Patrick Henry. Halbrook's book implies, via its very title, that Henry was discussing the second amendment.

And your false assertion about the book (that it's not about the second amendment) is secondary to your main false assertion: that RKBA zealots don't quote Henry as if he was discussing the second amendment. Trouble is, they do. Halbrook's book is an example, and I cited 8 other examples that you've completely ignored. You still have shown no defense for that false assertion, and you still have not retracted that false assertion.

Nice job being something that the comment policy forbids me from identifying


Not the first time you've demonstrated your affection for paralipsis. Also not the first time you've indulged in your habit of making false accusations.
6.3.2009 5:31pm
David M. Nieporent (www):
You seem to be implying
No, I don't. As usual, your claim about what someone means is never right. (Funny, but when other commenters have responded to you that they meant something different, you claimed that you could only respond to what people say, not what they mean. But somehow you never seem to have a problem talking about what I'm "implying" or "suggesting.")

Are you really not capable of expressing yourself clearly and precisely? Or do you choose to be intentionally vague so you can then whine about how you're allegedly being misinterpreted?
I'm definitely capable of expressing myself clearly and precisely. Are you really not capable of understanding normal human conversation? I comment on many sites, and you are one of a select few that seem to have a problem with comprehension. I'll give you a free helpful hint: whenever you read something of mine and decide that I am "suggesting" something which you disagree with, just assume that you've misunderstood what I've said. (A corrollary, though this may be too much to ask of you, is that rather than assuming I am "implying" anything, courtesy would imply you should just ask what I mean.)


is secondary to your main false assertion: that RKBA zealots don't quote Henry as if he was discussing the second amendment. Trouble is, they do. Halbrook's book is an example, and I cited 8 other examples that you've completely ignored.
Some of them are irrelevant, since they're random websites by who-knows-whom, and thus not responsive to Aldrige's question, which is obviously about why knowledgeable people, not random people on the internet, cite the quote. (The answer to the latter question would be trivial and uninteresting: because random people on the internet are often uninformed.) Others are simply as out of context as your Halbrook citation; although, e.g., the seventh cite is entitled, "What the Framers said about our Second Amendment Rights to Keep and Bear Arms," it's really just general quotes about gun rights. (It includes, for instance, "No Freeman Shall Ever Be Debarred the Use of Arms," which was Jefferson's proposed language for the Virginia state constitution, and is clearly labeled as such.)

And finally, this entire Googling shtick is just an exercise in narcissism on your part, your usual attempt to get people to jump through your hoops. There are tens of billions of pages indexed in Google; one can find just about any assertion, no matter how absurd, from someone. If I say that nobody is accusing Barack Obama of being a Martian, I'm sure you can find a dozen links to websites where that claim is actually made. But so what? What would that prove? That an overly literal interpretation of the phrase "nobody is saying X" is never true when dealing with the internet? So what? That's obviously not what the claim is about.
6.4.2009 11:25am
jukeboxgrad (mail):
Some of them [examples cited] are irrelevant, since they're random websites by who-knows-whom, and thus not responsive to Aldrige's question, which is obviously about why knowledgeable people, not random people on the internet, cite the quote


You're brazenly relocating the goalposts now that it's been proven that your original claim is false. In the original exchange between aldridge and you, no one said anything about "knowledgeable people," either explicitly or by implication. He said this:

How come RKBA zealots always quoting him then?


What about the word 'zealot' implies "knowledgeable?" Zealots are often ignorant. And you responded as follows:

They're quoting him, in context, for the purpose of his statement, not as though he were discussing the Second Amendment.


You didn't say 'if they're knowledgeable, then they quote him in context' (which would be pretty tautological, because it's like saying 'if they know enough to quote him properly, then they'll quote him properly'). You should take responsibility for what you actually said. You made a sweeping statement. Now that you've been proven wrong, you want to add a qualifier that wasn't there.

And aside from that, I included plenty of examples from people who are "knowledgeable." Halbrook is definitely knowledgeable, and he decided that Henry's statement makes a great title for a book about the second amendment. Which is a very odd thing to do if Henry "wasn't discussing what the Second Amendment means." But that's precisely the claim you made.

There are tens of billions of pages indexed in Google; one can find just about any assertion, no matter how absurd, from someone.


Then it should be really easy for you to find a single example of a "knowledgeable" RKBA zealot quoting Henry in the manner that you claim is generally used by "knowledgeable" RKBA zealots. But of course you've done no such thing. Instead, your first impulse was to make a sweeping claim supported by no evidence whatsoever. And then when it is shown that your claim is false, you relocate the goalposts and substitute a less outlandish claim, but one that is nevertheless still supported by no evidence whatsoever.

The examples I cited are not outliers. They are not exceptions. They are typical. If "knowledgeable" RKBA zealots actually quote Henry the way that you claim they quote Henry, how come in all this time you haven't produced a single example? The available evidence seems to indicate that RKBA zealots generally don't quote Henry the way you say they quote Henry.

I guess you think there must be someone who is impressed by your unsupported claims, even though so many of them turn out to be false.

And speaking of false claims, you've said nothing to address your false claim that Halbrook's book isn't about the second amendment.
6.4.2009 8:18pm
jukeboxgrad (mail):
nieporent:

There are tens of billions of pages indexed in Google; one can find just about any assertion, no matter how absurd, from someone. If I say that nobody is accusing Barack Obama of being a Martian, I'm sure you can find a dozen links to websites where that claim is actually made. But so what? What would that prove? That an overly literal interpretation of the phrase "nobody is saying X" is never true when dealing with the internet? So what? That's obviously not what the claim is about.


One more thing about this, since it's a vivid example of your typical sophistry. This was your original claim:

They're [RKBA zealots] quoting him [Patrick Henry], in context, for the purpose of his statement, not as though he were discussing the Second Amendment.


The question is who you meant by "they." Please consider a few possibilities:

A) 100% of all RKBA zealots, 100% of the time, quote Henry in context
B) most RKBA zealots, generally speaking, quote Henry in context
C) knowledgeable RKBA zealots quote Henry in context

The most natural reading of your statement is B. But your rant about "tens of billions of pages indexed in Google" is intended to suggest that I read you as saying A. Trouble is, I didn't. I read you as saying B.

So it's not a situation where I am pretending that you said A, and then I am finding a few exceptions to A, and then using this as a basis to claim that you made a false statement (and that scenario would correspond with your illustration regarding Obama being a Martian). Rather, it's a situation where you said B, and I have shown that all the readily available evidence seems to indicate that B is false. And you have shown this much evidence in support of B: none whatsoever.

I put C on the list because part of your wriggling is to pretend that all you ever said was C. I already explained multiple reasons why that wriggling doesn't work: C isn't what you said, and C tends to be valueless and tautological, and Halbrook tends to disprove C.
6.5.2009 11:59am
jukeboxgrad (mail):
And hopefully it's obvious that what's important about this, and what makes it worth the effort to explain, is not the substance of the specific subject matter. In the grand scheme of things, how RKBA zealots quote Henry is not terribly important.

What it's about is something else that is indeed terribly important: how smart partisan hacks use sophistry to distort and corrupt our public discourse. This particular example is perfectly typical, so deconstructing it is worth the effort.
6.5.2009 12:08pm

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