DC judge dismisses Heller?

[Raspy]

Lew,

I find the "creativity" aspect to be interesting. We all know that some restrictions must be upheld. But there is no clear way to interpret, in the strictest reading, what words or methods must be used. So the laws and the constitution must be "read to mean" or seen as "intended to mean" etc. This brings up the conservative's "strict" reading and Scalia's comments about his views vs the liberal's views, etc. And the political discussions about the founder's intentions or a living document. Scalia, for instance, seems so interested in a strict reading, but, as you pointed out, he'll "tolerate" incorporation to achieve gun rights.

There is so much interpretation and time marches on with new societal challenges that must be dealt with. Each side claims to be interested in preserving the country.

Now, with the rise in gun rights and a groundswell of effort in the courts, very well thought out arguments filled with historical intention and precedents, we're seeing the clear difference between the original intention and the way the anti-gun segment want to interpret. Fear of one type vs fear of another type. The past and future. More predictions and activism.

It's an interesting political moment.

It's a pleasure to read your well thought out comments that obviously come from being well read and involved. Analysis that is not full of scare tactics and extreme hype. And, as you say, this could be the beginning of a long process.

So many people have very strong opinions regarding guns and many other topics in the US. We all seem so involved, and yet so many are so terribly uninformed. Meanwhile, we spend a lot of time concerning ourselves with the political scene. A lot of time and frustration.

I only mention this because I recently spent a fair amount of time in China on five separate visits. Traveling and soaking up everything possible about their lives, the workings of the country, and the general political scene both past and present. I was accompanied by a native Chinese woman that had been an English teacher there for 20 years, is very well educated and whose father is a doctor and sister-in-law a congressperson. The political scene, both past and present, and how it affects life there was my main field of study. Very interesting indeed. A general view of it all is just how happy everyone seems to be, how positive they are about the future and how little time is spent worrying about politics.

 

[Lew Archer]

Lew,

I find the "creativity" aspect to be interesting. We all know that some restrictions must be upheld. But there is no clear way to interpret, in the strictest reading, what words or methods must be used. So the laws and the constitution must be "read to mean" or seen as "intended to mean" etc. This brings up the conservative's "strict" reading and Scalia's comments about his views vs the liberal's views, etc. And the political discussions about the founder's intentions or a living document. Scalia, for instance, seems so interested in a strict reading, but, as you pointed out, he'll "tolerate" incorporation to achieve gun rights.

There is so much interpretation and time marches on with new societal challenges that must be dealt with. Each side claims to be interested in preserving the country.

Now, with the rise in gun rights and a groundswell of effort in the courts, very well thought out arguments filled with historical intention and precedents, we're seeing the clear difference between the original intention and the way the anti-gun segment want to interpret. Fear of one type vs fear of another type. The past and future. More predictions and activism.

It's an interesting political moment.

It's a pleasure to read your well thought out comments that obviously come from being well read and involved. Analysis that is not full of scare tactics and extreme hype. And, as you say, this could be the beginning of a long process.

So many people have very strong opinions regarding guns and many other topics in the US. We all seem so involved, and yet so many are so terribly uninformed. Meanwhile, we spend a lot of time concerning ourselves with the political scene. A lot of time and frustration.

I only mention this because I recently spent a fair amount of time in China on five separate visits. Traveling and soaking up everything possible about their lives, the workings of the country, and the general political scene both past and present. I was accompanied by a native Chinese woman that had been an English teacher there for 20 years, is very well educated and whose father is a doctor and sister-in-law a congressperson. The political scene, both past and present, and how it affects life there was my main field of study. Very interesting indeed. A general view of it all is just how happy everyone seems to be, how positive they are about the future and how little time is spent worrying about politics.

Yes, definitely an interesting political moment. Maybe it will get even more interesting, as we await to see who will replace Justice Stevens. The selection of a Justice is so critical.

Of course, we want a brilliant legal mind, but one keyed to a principaled legal philosophy. Of course, conservatives and liberals have very different opininons about which legal philosophy they want to see on the bench.

In the end, despite some conservatives' stated desire for judges who are "strict constructionists"--i.e., those who don't make law, just apply the law--the reality is that before you can apply a given law, you must understand it. That means you must interpret it.

Interpretation is everything. The Heller case is a good example. The Court had to interpret whether the right to keep and bear arms was an individual right. The language and the phrasing of the 2nd Amendment was just ambiguous enough to create a question as to its meaning, thus requiring interpretation.

That's usually the case. It will certainly be the case in gun cases, as courts seek to define what's covered, what's not, what exceptions exist, etc., etc.

Judges, even strict constructionists, must define terms and interpret their meaning. If it was an easy task of just reading the law, anyone could do it.

And, to get to the result they want, even conservative judges, such as Justice Scalia, can reach the end they wish by NOT answering certain questions.

It's no accident Justice Scalia did not address the "standard of review" question in Heller. He neatly found a way to sidestep a very difficult issue--one that, handled differently, could have turned the tables on the 5-4 decision.

As I noted earlier, the simplicity of the sidestep is impressive: The Court (Scalia wrote the Opinion) didn't determine the appropriate standard of review for 2nd Amendment cases. Usually, the Court says: here's the question, here's the standard, when the standard is applied, here's the result.

That did not happen in Heller. Instead, the Court went straight to the result. The Court bypassed the standard of review issue by deeming it irrelevant. After concluding that, under any standard, the DC law would fail, the Court went on to conclude the law failed Constitutional muster. A great example of a jurist reaching the desired result, not by interpreting into the constitution things that aren't there, but by simply not addressing a given question at all.

At the same time, this legal maneuver was not only tactically sound, it was ethical, as it adhered to a basic principle of the Court's historic approach: decide no more than if necessary to resolve the case at bar.

It all shows the importance of who is on the bench, in terms of their intellect, judicial philosophy and intellectual character.

Of course, judicial beauty is most definitely in the eye of the beholder!

Thanks, Raspy, again, for your favorable comments to my earlier posts, and for sharing some perspective from your recent travels. Very interesting, indeed.

 

[oldman45]

All this can get even more interesting with the pending appointment by the President. He will appoint someone with very liberal leanings and the way they interpret the law is going to be from a liberal viewpoint.

There have been two vacancies in the last year. One was filled with a liberal that had questionable decisions in the past. Look for the next appointee to be even more liberal. Obama was only testing the waters with the first.

I believe the face of the USSC will be changed a lot before the Nov elections. The Dems are wanting as many appointments as possible before the balance of power can be changed.

 

[NY Shepherd]

Without liberals in Washington D.C., it would be a ghost town.

From a legal point, this Judge Urbina is a small fish in a big pond. He is nothing more than a District Judge. From hir ruling, it will go to an appeallate court, then on up through acouple more courts until it gets to the US Supreme Court.

From my take on it, the Judge is right. The Second Amendment does not give us the right to do any more with firearms than own them. While the intent of the law is to allow us firearm ownership, the letter of the law would allow us to ownanti aircraft guns. None of which allows us the right to own a magazine holding 100 rounds. I think we should be able to own whatever we want but the law does not look at it that way. The Judge is also correct in that a lot, if not most, of the major shootings are being done through the use of large capacity weapons. Thirty or forty years ago this was not the case since most handguns were revolvers or .45ACP and few held more than 10 rounds.

Just my 2 cents. The judge you're referring to is wrong (thats a shock) sorry but most major crimes we "HEAR" about (key word hear) may in fact invlove high capacity magazines. However most crimes, murders, accidental deaths by firearm in the United States are not caused by "high capacity" firearms. And clearly the 2nd amendment was written to give American citizens the right to do more than "own" guns as you stated. Like perhaps carry them... as in "bear arms" and not just for hunting roger rabbit. If the 2nd ammendment, was followed by the letter of the law we wouldn't be having this conversation. However our sad excuse for representation in the Liberal halls of government think we'd be better off unarmed and unable to protect ourselves from the evil which we are forced to live with. Additionally, WITH ALL DUE RESPECT, most of our brave men and women in local law enforcedment by default are largely reactive with regard to violent crime and protecting the public. You see by the time the police arrive at the local supermarket, church, train car, bar, school, street corner, etc. after hearing "shots fired" most of the damage is done period. And by whom you may ask? Is it the law abiding citizen with a gun permit for his or her NY legal 10 rounder? NO its the bad guys who have always had the guns and always will, whether or not congress or santa clause strips every last gun out of the hands of all the rest of us!!!! Guns don't kill people, people kill people, cars don't kill people, drunks do. One last thing, saying the 2nd amendment only gives us the right to own guns and nothing more as you stated is like saying we have the right to buy a car but not fill the tank or drive it to work. Come on it's rediculuos. Now ask yourself why the crime rates are highter in the areas with the strictest gun laws. Answer: It gives the dirtbags waiting to stick a 9 in your face that warm and fuzzy feeling plus the added bonus of job security. Just my opinion...

 

[oldman45]

Just my 2 cents. The judge you're referring to is wrong (thats a shock) sorry but most major crimes we "HEAR" about (key word hear) may in fact invlove high capacity magazines. However most crimes, murders, accidental deaths by firearm in the United States are not caused by "high capacity" firearms. And clearly the 2nd amendment was written to give American citizens the right to do more than "own" guns as you stated. Like perhaps carry them... as in "bear arms" and not just for hunting roger rabbit. If the 2nd ammendment, was followed by the letter of the law we wouldn't be having this conversation. However our sad excuse for representation in the Liberal halls of government think we'd be better off unarmed and unable to protect ourselves from the evil which we are forced to live with. Additionally, WITH ALL DUE RESPECT, most of our brave men and women in local law enforcedment by default are largely reactive with regard to violent crime and protecting the public. You see by the time the police arrive at the local supermarket, church, train car, bar, school, street corner, etc. after hearing "shots fired" most of the damage is done period. And by whom you may ask? Is it the law abiding citizen with a gun permit for his or her NY legal 10 rounder? NO its the bad guys who have always had the guns and always will, whether or not congress or santa clause strips every last gun out of the hands of all the rest of us!!!! Guns don't kill people, people kill people, cars don't kill people, drunks do. One last thing, saying the 2nd amendment only gives us the right to own guns and nothing more as you stated is like saying we have the right to buy a car but not fill the tank or drive it to work. Come on it's rediculuos. Now ask yourself why the crime rates are highter in the areas with the strictest gun laws. Answer: It gives the dirtbags waiting to stick a 9 in your face that warm and fuzzy feeling plus the added bonus of job security. Just my opinion...

Well, if you go by the letter of the law, it does not say how many guns you can own, how many bullets it can hold or where you can carry it.

Yes, the law says you can keep and bear arms. Yet show me where those that wrote the law mentions in any writing that they carried their guns to any place other than confrontations. If the British invaded, they had the arms to defend. Also remember that the gun of the time was a single shot musket. The reason Japan did not come into the US after Pearl Harbor is they knew nearly all US citizens own guns and they could not win a fight.

Most crimes in the US today are committed with high capactiy magazines. They are also done by repeat offender criminals. There are no laws saying how many rounds a gun you own and bear can have so the court can shorten it back to one round. Then they can make laws sending us back to muskets.

My opinion is we should be able to own what we want but my opinion is not law.

 

[PDL]

One point on the next nominee, of course it will be a liberal. But the 60 vote steamroller is gone. That will keep another 'ram down the throat' job from happening. Also, there isn't any reconciliation deal to be made either.

 

[nicky4968]

I would like to see the source of the data behind the claim that most gun crimes are committed with high-capacity-magazine firearms.
I have, I admit, only reported six or seven homicide cases that involved handguns. Only one (a third-generation Smith, 59-something) had a high capacity magazine.
Five rounds were fired and two people were killed.

 

[oldman45]

I would like to see the source of the data behind the claim that most gun crimes are committed with high-capacity-magazine firearms.
I have, I admit, only reported six or seven homicide cases that involved handguns. Only one (a third-generation Smith, 59-something) had a high capacity magazine.
Five rounds were fired and two people were killed.

Go the the Department Of Justice website and look at the weapons used in crimes.

I have worked eight shootings this year. All were either semi auto handguns or so called assault rifles. Most guns were cheap. Only one was a well known brand.

Or you can read this 10 yr old study or over 80,000 incidents. But also read why a revolver made the list of top ten weapons.

http://www.time.com/time/nation/article/0,8599,320383,00.html

 

[oldman45]

Note the amount of semi autos used. As the years progress, the semi takes more of a higher spot. Still, most of the weapons are cheaper brands. This is due to a perp tossing it after use, easier to afford (criminals are not usually wealthy) and the cheap guns are more available on the streets.

 

[nicky4968]

I don't want to start a fight, just trying to find information.
Of the 10 guns listed (very informative) two are what I would call "high-capacity-magazine" firearms.
On the other hand, dead is dead, whether you were shot once or 13 times. As you, I deal with this stuff on a regular basis and have to admit that the man who has an answer to what goes on out there on the street is a lot smarter than I am.

 

[oldman45]

If you examine the list, you will see most are semi autos. But consider why the higher use of semi autos since they will not fire any faster than you can pull the trigger. A revolver holds 6-7 rounds. The semi holds 8+ rounds. There are several good sites explaining why the popularity of the semi used in crime. The FBI maintains records of weapons used in every reported crime in the US, even those that do not result in shots fired. All agencies are required to report to the FBI what they found during investigations & apprehensions.

 

[oldman45]

Another thing I found in my studies and work is the part of the US in which you live will change what you find.

Here in Louisiana, there is a place on an accident tow sheet for the officer to list what firearms were found in a wrecked auto. The northern states do not find many guns in wrecked auto but here most cars have a gun inside.

Years ago, almost every truck had a gun rack in the back window. Now the guns are behind the seat or in the floorboard since people were stealing guns that were visible.

Since I work in three other states as well, I see a difference in each state. I see more long gun shooting in rural areas, more drug/gang related semi shootings in the urban areas.

 

[NY Shepherd]

Well, if you go by the letter of the law, it does not say how many guns you can own, how many bullets it can hold or where you can carry it.

Yes, the law says you can keep and bear arms. Yet show me where those that wrote the law mentions in any writing that they carried their guns to any place other than confrontations. If the British invaded, they had the arms to defend. Also remember that the gun of the time was a single shot musket. The reason Japan did not come into the US after Pearl Harbor is they knew nearly all US citizens own guns and they could not win a fight.

sending us back to muskets.

My opinion is we should be able to own what we want but my opinion is not law.

Good point you're right the law doesn't say how many guns we can own or the capcity of the mags or how many rounds per gun/mag. Thats the point. You're also right, we may not have documentation we can draw on indicating that our founding fathers carried their guns from home to town. I'm guessing they did. I mean lets face it back then they were more apt to run into a bear or wild cat on the way. Not having protection for such an incident seem plain foolish, no? Not to mention the occasional confrontation with the criminal element of the time or the native peoples with little tolerance for the settlers of the new world. You say they would simply take their arms to a confrontation, lest we forget most confrontations are not planned so politely these days and I suspect it was the same back when the 2nd ammendment was written. And the reason Japan didn't invade the US after Pearl Harbor may have been because they knew we were all armed and they couldn't win. Now if our current representation in DC would only agree with us on that point. LOL. Seems to me the current administration would rather have us disarmed.

As for most crimes being committed with high capacity firearms I must still respectfully disagree with. All the research I've done does not indicate this. This is just one of the studies I've reviewed and proofed for accuracy that maybe you can take a look at. I've read it several times and researched the data given and sources and they are legit. Take a look and tell me what you think Gun Facts - Gun Control | Facts | Debunk | Myths There is an incredible amount of facts in this study that clearly debunk many of the myths out there. Enjoy the rest of the weekend, I'm off to the ball field to tune up the kid, wifes already there Take care.


Most crimes in the US today are committed with high capactiy magazines. They are also done by repeat offender criminals. There are no laws saying how many rounds a gun you own and bear can have so the court can shorten it back to one round.

 

[oldman45]

As for most crimes being committed with high capacity firearms I must still respectfully disagree with. All the research I've done does not indicate this. This is just one of the studies I've reviewed and proofed for accuracy that maybe you can take a look at. I've read it several times and researched the data given and sources and they are legit. Take a look and tell me what you think Gun Facts - Gun Control | Facts | Debunk | Myths There is an incredible amount of facts in this study that clearly debunk many of the myths out there. Enjoy the rest of the weekend, I'm off to the ball field to tune up the kid, wifes already there Take care.

.

Ok, I read a lot of the thread and can agree with most of what they have to say. However, when they mention semi autos in crime, note they talk in general terms and not actual numbers. There are more revolvers in ownership than semi autos but go to a gun store and see which is more visible. Go to a pawn shop and see which is more visible. Look at the areas that have banned high capacity mags. What was their reason for doing so? I can answer that easily. The local law enforcement was finding more high capacity mags on criminals.

As an earlier poster stated, dead is dead. You can be killed with a baseball bat but few people are. If you remove the gangbanger shootings/arrests with cheap 9mm pistols, then the stats will change greatly. During the late 90's I would find cheap 9mm guns laying in the streets a couple times a year.

If you have connections with your local PD, go there and look at the firearms they have seized. I promise you that they will have more semi than revolvers and most of the semi will be cheap 9mm.

Also, stats are just now coming for from 5 yrs ago. Semi auto use soared about 24% between 1985-1990. Since then the use has gone out of sight. About the only people still willing to buy a revolver is an older male. The younger folks want semi auto.

I was at an instructional shooting class last week for four hours. There were 42 shooters. Three were women. Only two of the 42 brought revolvers. One of the women used a revolver (it belonged to her father).

There are not a lot of the old cheaply made revolvers on the streets for sale. There are not a lot of revolvers stolen from homes since most people own semi guns. Remember, Colt does not even make a revolver anymore. Several other makers have ceased revolver production. It is simply easier to buy a semi.

When the high capacity mag ban went into effect, look at what the prices did. People have the guns and if a mag goes bad, you just have an expensive single shot pistol.

I enjoy carrying a revolver and do so on occasion. Most of the time I carry a semi even though I can shoot a revolver better. I learned to shoot with a revolver. A semi was rare back then. My father never shot a semi other than a .45 model 1911 in the military and he never owned a semi. Only the younger generation grew up with the semi and they buy what they grew up with.

When was the last time you saw a movie where the actors used a revolver? Have you seen an news footage showing a revolver being seized?

When was the last mass shooting you know of where a revolver was used? Ever go to a pistol competition where there were more revolvers than semi autos?

If you read the site I gave for a reference, you would have read about the popularity of the auto loader and the lack of interest in a revolver. When a revolver is used in crime today it is due to either being the only thing available or it was all they could afford on the streets.

 

[NY Shepherd]

Well, if you go by the letter of the law, it does not say how many guns you can own, how many bullets it can hold or where you can carry it.

Yes, the law says you can keep and bear arms. Yet show me where those that wrote the law mentions in any writing that they carried their guns to any place other than confrontations. If the British invaded, they had the arms to defend. Also remember that the gun of the time was a single shot musket. The reason Japan did not come into the US after Pearl Harbor is they knew nearly all US citizens own guns and they could not win a fight.

Most crimes in the US today are committed with high capactiy magazines. They are also done by repeat offender criminals. There are no laws saying how many rounds a gun you own and bear can have so the court can shorten it back to one round. Then they can make laws sending us back to muskets.

My opinion is we should be able to own what we want but my opinion is not law.

My opinion is we should be able to own what we want but my opinion is not law.[/QUOTE]
Good point you're right the law doesn't say how many guns we can own or the capcity of the mags or how many rounds per gun/mag. Thats the point. You're also right, we may not have documentation we can draw on indicating that our founding fathers carried their guns from home to town. I'm guessing they did. I mean lets face it back then they were more apt to run into a bear or wild cat on the way. Not having protection for such an incident seem plain foolish, no? Not to mention the occasional confrontation with the criminal element of the time or the native peoples with little tolerance for the settlers of the new world. You say they would simply take their arms to a confrontation, lest we forget most confrontations are not planned so politely these days and I suspect it was the same back when the 2nd ammendment was written. And the reason Japan didn't invade the US after Pearl Harbor may have been because they knew we were all armed and they couldn't win. Now if our current representation in DC would only agree with us on that point. LOL. Seems to me the current administration would rather have us disarmed.

As for most crimes being committed with high capacity firearms I must still respectfully disagree with. All the research I've done does not indicate this. This is just one of the studies I've reviewed and proofed for accuracy that maybe you can take a look at. I've read it several times and researched the data given and sources and they are legit. Take a look and tell me what you think Gun Facts - Gun Control | Facts | Debunk | Myths There is an incredible amount of facts in this study that clearly debunk many of the myths out there. Enjoy the rest of the weekend, I'm off to the ball field to tune up the kid, wifes already there Take care.

 

[NY Shepherd]

Excellent point about the expensive single shooter if the mag takes a crap and you are unable to get a replacement. In this case the revolver definately wins. Gotta get me one of those. That is of course after my local police precinct makes me wait 2yrs and gives me a colonoscopy And you know you definately make sense with the semi auto being the gun of choice these days. I agree with you the trouble is not the gun it's the criminal on the opposite end. Thats where we need to focus. And if we had judges with some common sense and balls they'd lock these cockroaches up for MAX every single time. And how about forget the 3 strikes and your out. How about 2nd time you're DONE. Clearly you didn't learn from the first time. So why should anyone believe you will suddenly turn a new leaf after your second! Why wait till the 3rd which tends to be all the more serious. Forget it lock em up and throw away the key. We do not need to feel bad or send these scumbags to rehab or a therapist for pitty party time. They are parasites. What do we do with termites when found in the home? EXERMINATE before they cause irreparable damage.

You know you may be right, so many studies.... one for every cause I guess. Who knows what the real numbers and facts are? God. But I was actually referring to semi auto long barrel. Rifles. I was not including handguns. The primary focus seems to be, or at least has been on the semi auto "assault rifles." This was really my line of thought when I jump in here. Either way I appreciate your input. I guess the only thing to do now is get as many magazines under the bed as I possibly can while waiting 2 years for my local NY police precinct to tell me I have to start over because I didn't dot and (i) or cross a (t) LOL. Oh, and I'll be sure to load up on the rounds too Hey what's the worst that could happen..... I have to use my 7.62x39 carrier as a blunt force object as I put my K-9 into an intruder!!! Ha ha ha ha. I just hope for the bad guys sake my boy is wiped out from a day on the sleeve, he loves to bite. Highly unlikely though as he can bite like an alligator forever!!! Take care for now all.

 

[oldman45]

So called assault rifles are used very seldom in actual crimes such as robberies. They are commonly found used in drive by shootings yet this still accounts for less than 5% of all crimes.

My thinking on the assault weapons ban and the high capacity mag restrictions is that the governmental powers making the laws were thinking those would be the best weapons to combat government forces. At the time these bans were implemented, there was a lot of talk the government was about to confiscate all our guns.

Down here, we see very few assault rifles. They are super cheap but people would rather have a handgun since they are more concealable and easier to wield. Since we have so much interest in hunting, nearly every household has several long guns. As many weapons as I own, I have only one so called assault rifle. It was pricey when I bought it three yrs ago and I have not fired it yet. Heck, I do not have any ammo for it anyway.

Long guns are not the weapon of choice for crime or criminals.

 

[NY Shepherd]

They high cap mag restrictions and "assault weapons" ban was a good way for big bro to make the playing field very one sided. Lets keep giving them hell and hold fast to what the government can't take from us because they have nothing to do with why we have it.... Our free spirit which comes from God and our good sense to defend it.