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  #26  
Old January 17th, 2008, 10:40 AM
JSQ JSQ is offline
Jack Quinlan
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The entire concept that the ARMY National Guard somehow represents the modern definition of a militia as it was understood by the authors of the Constitution is completely ridiculous.

Whereas simple logical concepts like individual rights vs collective lights are readily accessible to the layman regradless of his or her background and as such afford total transparency, the relative complexity of American military history and nomenclature provides an opportunity for just the sort of misleading obfuscation that makes people hate the American legal system.

"Oh, what's that? You don't know shit about militaries here or elsewhere or what consitutes a regularized federally funded assembly of troops and completely irregular and organic fighting force of local citizens?
Well, in that case, allow me to confuse the shit out of you and tell you how I think it should be because apparently you don't know enough to hold an opinion."


Whether the purpose of the formation of a milita be to rise up against a tryannical government, an occupying force, or to wage a war against an agressor along side the troops of the government of the militia members, the distinction between a militia and a standing army simply cannot be confused. The authors of the Constitution knew exactly what this difference meant because of their inherent fear and distrust of large standing armies be they of occupation or otherwise and their intimate experience with the success or irregular militiamen in assisting an organized fighting force or fighting as a stand alone unit.

It's the ARMY National Guard. It's part of the Army!
It's administrated, commanded, fielded and supplied by the Federal US Government.
If the National Guard were a militia which took harbor in the 2nd Ammendment rights protected by the Constitution then Guardsmen fighting in Fallujah right now would be carrying Winchester model 70s, Glock 19s and Mini-14s because these would be the personal weapons they own in order to form a well regulated militia.
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  #27  
Old January 17th, 2008, 06:47 PM
dannydisco dannydisco is offline
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I have no law experience, but unless I am mistake US Code Title 10, Subtitle A Part 1 Chapter 13 makes the National Guard the "organized militia" leaving the "unorganized militia" to be anyone else in a "militia" other than the NG. Still kinda bypassing the whole definition of which citizens constitute the "militia".

A court decision stating that only members of a militia have the right to own firearms could be a real concern to this layman.

Quote:
It's the ARMY National Guard. It's part of the Army!
It's administrated, commanded, fielded and supplied by the Federal US Government.

While the US Army/AF always supplies the NG the administration, command, and operational fielding of the NG is a little more complicated due to their dual nature. A Guard member belongs to both the US National Guard and the National Guard of their home state. The President is the CC of the US NG, while the State Governor is the CC of the State's National Guard. The President can federalize the NG, and if he does the Guard falls under these orders regardless of their state orders.

This is most important in terms of the laws on Posse Comitatus which allow non-federalized Guard members to perform things like patrol the Mexican border.

It is true that the NG chain of command (for Administration Command & Operational Command) eventually makes its way to the National Guard Bureu (a Federal DoD entity), it still passes through each State NG's Adjutant General who is individually responsible for the sustainment, training, and equiping of his/her units.

Something I've honestly never heard of before are the slightly scary "State Defense Forces" Wiki-Link which might be a little more along the lines of the concept of the original militias.

Along these lines I have a question. During the Revolutionary War, were the militia who fought alongside the Continental Army "forced" to be there? In other words, did Gen. Washington command them to be there, or did they choose to stay or leave of their own accord?

I don't believe they were ever forced to stay. In particular I seem to recall that during the siege of Boston there were problems due to this. This ability of choice would clearly seperate the "old militia" from the concept of the NG being the militia.

Reference Link
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  #28  
Old January 18th, 2008, 11:35 AM
johnlee johnlee is offline
John Lee
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While eating my lunch, I read the amicus brief filed by Erwin Chemerinsky and Adam Winkler in Heller:

http://www.gurapossessky.com/news/pa...ProfAmicus.pdf

Chemerinsky and Winkler are law professors.

Their brief is funny. Basically, their brief is that if Supreme Court rules that the Second Amendment guarantees an individual right to keep and bear arms, the Supreme Court should rule that only rational basis review applies when courts review Second Amendment cases. Their brief covers only the level of scrutiny that should be applied, and it does not argue that the Second Amendment protects only a collective right to keep and bear arms.

This is a good sign. Chemerinsky and Winkler seem to have given up on the individual vs. collective right arguments. Their brief almost seems to acknowledge that the Second Amendment protects an individual right. They don't say this of course, but their actions speak louder than their words. So rather than waste time arguing stuff that they predict the Supreme Court will reject, they spend their time doing damage control and arguing that only rational basis review should apply to Second Amendment cases.

This is a crack up and I am digging it. I think Chemerinsky and Winkler can sense that the real battle in the Supreme Court will be not on the individual vs. collective nature of the right to keep and bear arms, but rather on what level of scrutiny to be applied to gun laws. In this way, I agree with them. This is the more difficult question for the Court.

If you're wondering what rational basis review and strict scrutiny review are, check out:

http://en.wikipedia.org/wiki/Strict_scrutiny

In Heller, the executive branch is arguing for heightened scrutiny, the intermediate level of scrutiny. Gun rights people are asking for strict scrutiny. The level of scrutiny applied pretty much decides the outcome.

Nobody denies that the government has a compelling interest in preventing crime. The first prong of the strict scrutiny standard is very easy to meet. It's the second and third prongs that are very difficult to meet. If the Supreme Court deems a law overly broad, then it will conclude that law fails strict scrutiny. Gun bans are an example where the law may not be the least restrictive means of accomplishing the government's compelling interest. Lesser restrictive means such as licensing could be a possible alternative to an outright ban, depending on the circumstances.

I hope that we get at least five votes for both individual nature of the right and for strict scrutiny review.
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  #29  
Old January 18th, 2008, 12:42 PM
JSQ JSQ is offline
Jack Quinlan
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If we get strict scrutiny basically any law that "bans" or "prohibits" gun ownership or types of firearms rather than regulating them will be deemed to violate the right afforded by the seond ammendment and have to either be nullified or re-written!
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  #30  
Old January 18th, 2008, 01:11 PM
johnlee johnlee is offline
John Lee
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Strict Scrutiny is a severe test, but that does not mean the Supreme Court has struck down all laws when applying strict scrutiny review.

I've never kept count, but according to Wiki:

Quote:
Legal scholars, including judges and professors, often say that strict scrutiny is "strict in theory, fatal in fact," because popular perception is that most laws subject to this standard are struck down. However, an empirical study of strict scrutiny decisions in the federal courts, by Adam Winkler, found that laws survive strict scrutiny over thirty percent of the time. In one area of law, religious liberty, laws survived strict scrutiny review in nearly sixty percent of applications.

60% of laws affecting freedom of religion passed strict scrutiny? If so, that's a hell of a lot.

Look also at freedom of speech. The right to freedom of speech is one of the most basic fundamental rights, yet it's not absolute. Far from it. For example, one cannot falsely scream "fire!" in a crowded theater and cause a panic and, when faced with murder charges, claim that he was merely exercising his freedom of speech. One cannot order "fire!" in a wrongful execution and later, when faced with a court martial or other criminal prosecution, claim that he was only exercising his freedom of speech. One cannot lie about another and then, when faced with a libel or slander prosecution, claim that he was merely exercising his freedom of speech. One cannot say "I agree" to an offer and later, when faced with a breach of contract prosecution, claim that there is no contract because he was merely exercising his freedom of speech. One cannot go to an NAACP rally and scream "you dirty niggers" and cause a riot where people get injured, and then when faced with criminal prosecution, say that he was merely exercising his freedom of speech. One cannot lie on the witness stand and, when faced with criminal prosecution for perjury, claim that he was merely exercising his freedom of speech rights.

These exceptions go on and on. The right to keep and bear arms, just like our other fundamental rights, is not absolute. Even if the Supreme Court decides to examine gun laws under strict scrutiny review, you can bet that many gun laws will be upheld.
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  #31  
Old January 18th, 2008, 05:06 PM
johnlee johnlee is offline
John Lee
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  #32  
Old January 22nd, 2008, 09:33 PM
johnlee johnlee is offline
John Lee
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Here's a 60 Minutes bio on Justice Clarence Thomas:





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  #33  
Old January 23rd, 2008, 08:56 PM
johnlee johnlee is offline
John Lee
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http://www.supremecourtus.gov/docket/07-290.htm

The Court will hear oral arguments in District of Columbia v. Heller on Tuesday, March 18, 2008.
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  #34  
Old January 23rd, 2008, 09:05 PM
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Jack Quinlan
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March 18th huh?

I think I know what all the Front Sight chit chat is going to revolve around.
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  #35  
Old February 14th, 2008, 09:54 PM
johnlee johnlee is offline
John Lee
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This case is cracking me up. The amicus briefs in favor of respondent Heller (in support of the individual rights view) have been filed. Check out the list at:

http://www.gurapossessky.com/news/parker/pleadings.html

I peaked at some of the briefs and they're hilarious. The usual suspects are there, of course, but there are some surprising others present.

If you remember, the United States Department of Justice argued that the Second Amendment protects an individual right, but that only intermediate scrutiny should apply in Second Amendment cases and that the Supreme Court should remand the case. That's basically the President speaking there. Well, the Vice President, 55 United States Senators, and 250 members of the House of Representatives have filed a brief contending that a remand is unnecessary because the District of Columbia's handgun ban is unreasonable on its face, under strict or intermediate standard of review. So we have the Vice President and the President taking slightly different positions on this one.

Among the amici in support of the individual rights view, there are some there that are just as funny as some of the amici in favor of the collective right view.

For example, remember the American Academy of Pediatrics arguing that pistols in the home are inherently dangerous to children and therefore should be banned? Well, now comes the Association of American Physicians and Surgeons in favor of private gun ownership:

Quote:
The Association of American Physicians and Surgeons, Inc. (“AAPS”) is a non-profit, national group of thousands of physicians founded in 1943. AAPS has physician members who rely on their freedom to own and carry firearms to guard against criminal activity, which includes attempts to break into their offices to obtain controlled substances or potential attacks by patients on the physicians attempting to help them. AAPS also has members who treat children and psychiatric conditions related to the occasional misuse of firearms.

Moreover, AAPS has long defended the practice of ethical medicine, and firearms serve an essential role against misuse of medicine by tyrannical governments for unethical goals. AAPS has an interest in defending the right to bear arms as a deterrent to tyrannical government, as recognized by many commentators from James Madison to Joseph Story.

Oh man, that's awesome. These doctors want to pack heat. Actually, their slam against the other side's doctors is pretty sweet:

Quote:
Constitutional law – specifically, the Second Amendment – cannot depend on politicized views of medicine. Amici curiae briefs submitted for Petitioners by the American Public Health Association (APHA) and the American Academy of Pediatricians (AAP) (the “Petitioners’ Medical Amici”) insist that medical evidence supports gun control. AAP claims that firearms are a medical “contagion”, and that “children cannot be taught gun safety.” AAP Brief at 5, 12. In fact, medical professionals have no more qualifications or basis to opine about the Second Amendment than anyone else. The attempt to shroud political gun control arguments in the white coat of physicians and public health officials is utterly baseless, and constitutional law should not be influenced by it.

Medical expertise is not required to recognize the obvious defects in the arguments and studies presented by Petitioners’ Medical Amici. Undeniable benefits of firearms, which include self-defense and deterrence, are largely omitted and unaddressed in their submissions. The same logic underlying their briefs’ approach to gun control could be used to insist on a ban on automobiles or swimming pools, by focusing only on the harm they cause and failing to address their benefits. But the benefits of guns are undeniable: one physician surveyed published studies and estimated that the defensive use of guns saves 25 to 75 lives for every one lost to a gun. Miguel Faria, M.D., “Public Health and Gun Control – A Review (Part I: The Benefits of Firearms),” 6 Medical Sentinel 11 (2001). While the magnitude of that comparative benefit may be debated, there is no denying that there are substantial benefits from gun ownership, and no discussion of the harm is complete without addressing the benefits. Virtually all medical professionals support use of drugs and vaccines that cause serious adverse effects as long as they confer greater benefits, yet that basic analytical approach is missing from Petitioners’ Medical Amici.

The female groups are getting involved as well. 126 female legislators and academics filed their brief:

Quote:
Advocates of women’s reproductive choice commonly argue that pregnancy disproportionately affects women due to their innate gender-based characteristics. Thus, they argue, courts failing to recognize the right to terminate a pregnancy therefore discriminate against women and bar their ability to participate as equal and full members of civil society. While choices about pregnancy no doubt impact a woman’s ability to determine the course of part of her life, it is not clear why such a right should be due greater protection than a woman’s ability to defend her very existence. A woman who is murdered, a woman who is so badly injured that she may never recover emotionally and/or physically, and a woman who feels constantly helpless faces even greater barriers to her ability to function as an equal member of society.

Amicae therefore contend that depriving women of the right to possess a handgun in the privacy of their own homes reflects at best an insensitivity to women’s unique needs created by their inherent gender characteristics. A handgun simply is the best means of self-defense for those who generally lack the upper body strength to successfully wield a shotgun or other long gun. To therefore deny half the population a handgun, as the District and the Office of the Solicitor General urge, evinces the “blindness or indifference” to women that only perpetuates women’s vulnerability to physical subordination.

Oh man. "Amicae"? I love it. And a pistol is the best means of self-defense for women, who lack the upper body strength to wield a long gun? This is great stuff. I guess the typical feminist arguments were too ingrained in their minds for them to make better arguments in this case. I guess they've never seen Roseann Hanson at low ready and about to unleash a taste of armageddon:


But who knows. Maybe their feminist arguments will stick with Justice Ginsburg. We'll see.

Even the gay rights groups are getting involved. A gay rights group called "Pink Pistols" filed a brief in favor of the individual rights view.

Quote:
Pink Pistols is an unincorporated association established in 2000 to advocate on behalf of lesbian, gay, bisexual and transgendered (hereinafter LGBT) firearms owners, with specific emphasis on selfdefense issues. There are 51 chapters in 33 states and 3 countries. Membership is open to any person, regardless of sexual orientation, who supports the rights of LGBT firearm owners. Pink Pistols is aware of the long history of hate crimes and violence directed at the LGBT community. More anti-gay hate crimes occur in the home than in any other location, and there are significant practical limitations on the ability of the police to protect individuals against such violence. Thus, the right to keep and bear arms for self-defense in one’s home is of paramount importance to Pink Pistols and members of the LGBT community.

They have the usual arguments. But wait, there's more. They have a damn good argument mixed in the usual suspects. It's so good, I wish I had thought of it. Peep this:

Quote:
An interpretation of the Second Amendment as a guarantee of an individual, rather than collective right of the states, is required if the Second Amendment is to have any application to LGBT individuals. Because the law effectively prevents members of the LGBT community from offering military service, reading the Second Amendment as Petitioners urge – to confer a collective right to keep and bear arms, based upon the condition of membership in “state and congressionally regulated military forces” (see Brief of Petitioners at 8-9, 12-14) – renders that right meaningless to LGBT individuals. Moreover, interpreting the Second Amendment as recognizing a right conditioned upon military service, where eligibility for military service is defined by the Government, prevents the Amendment from acting as a constraint on Government action.

Damn. That's good. That's damn good. If the collective right view is correct and the right to bear arms is conditioned upon military service, then only heterosexuals (and not homosexuals) enjoy Second Amendment protection. The same argument would apply for handicapped people, deformed people, maimed/disfigured people, etc. who are otherwise disqualified from military service. I had never thought about that. I don't think the other liberal groups had ever thought about that either.

This is gonna be good.
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  #36  
Old February 15th, 2008, 09:41 AM
greghirst greghirst is offline
Greg Hirst
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Thanks for posting and keeping us up-to-date on this issue, John.

I've often thought about the "collective" right argument as ignoring the rights of the physically-disabled in our society.

Contrary to the position of the female advocates you posted, one of the issues that I doubt will be addressed is the "type" of firearm that is protected. Since the Second Amendment applies to protection of the people against a tyrannical government (which I believe is an "individual" right) one could certainly argue that the framers believed the individual should have access to the same or equivalent weaponry as may be used against it by the military troops (title 2, NFA firearms).

It would be interesting to me if this court ruling actually went so far as to rule on the constitutionality of NFA 34 and the later GCA 68.

I'm one of those who believe that US v. Miller was flawed in the justices conclusion that a shotgun with a barrel less than 18" "...it is not within judicial notice that this weapon is any part of the ordinary military equipment or that it's use could contribute to the common defense". I'm certain there must have been a few WWI vets who could have elaborated on the use of shotguns in trench warfare.

Of course it didn't help that Miller, Layton and their attorneys failed to even show up in court to argue the point.
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  #37  
Old February 15th, 2008, 12:05 PM
johnlee johnlee is offline
John Lee
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I'm not sure how sweeping the decision will be. I highly doubt NFA stuff will be covered, as the NFA weapons are not at issue here. The grant of cert covers the following question:

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

D.C. Code § 7-2502(a)(4) prohibits the registration of a pistol not registered in the D.C. by the applicant prior to 1976.

D.C. Code § 22-4504 restricts the carrying of a pistol in D.C.

D.C. Code § 7-2507.02 requires that a registered firearm be kept unloaded and disassembled or bound by trigger lock or similar device, unless such firearm is kept at a place of business, or while being used for lawful recreational purposes within the District of Columbia.

I'm guessing the Supreme Court's opinion will concern only these statutes and only as they pertain to private use in homes. § 22-4504 prohibits the carrying of a pistol in D.C., presumably even within private homes. I highly doubt the Supreme Court will cover public carry, because the grant of cert covers "for private use in their homes". Things like public carry and other questions like NFA weapons will have to be decided in later cases, if any.

I'm not that familiar with United States v. Miller so I don't know all the ins and outs of it. But my limited understanding of the case was that it was a kangaroo court. I'm not even sure why the Supreme Court heard the case because I would have thought the case would be mooted by Miller's death before the case reached the merits stage. Again, I'm not sure. I believe Miller happened after the FDR court-packing. If so, the Court at the time was basically rubber-stamping almost any and all exercises of federal power, including the National Firearms Act of 1934.
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  #38  
Old February 15th, 2008, 12:11 PM
johnlee johnlee is offline
John Lee
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I went to the Pink Pistols' site and it's awesome.

The home page:




Homegirl with her M8:




She's also got a Scout:




Ching Sling and Everything. Girlfriend's got it goin on.
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  #39  
Old February 15th, 2008, 04:34 PM
nosivad_bor nosivad_bor is offline
Rob Davison
 
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Or is it a transgender homeboy?
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  #40  
Old February 16th, 2008, 08:39 AM
montanablur montanablur is offline
Sinuhe Xavier
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What are this forums opinions of the ramifications, if any, with all the recent shootings will be?
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  #41  
Old February 17th, 2008, 10:02 AM
DCWhybrew DCWhybrew is offline
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I think this article pretty my hits the nail on the head regarding my opinion. I agree with Rep. Pierce and Sen. Johnson that schools have become no-defense zones.

http://www.azcentral.com/news/articl...6guns0216.html
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  #42  
Old February 18th, 2008, 03:16 PM
thomaskimura thomaskimura is offline
Thomas Kimura
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I noticed an interesting issue in the Petition for Certiorari today. In the statement of fact (page 21), the point is made that even if there is an individual gun rights unrelated to the militia service, the Second Amendment only protects the state militias from Federal interference. Now, obviously the point is pretty absurd to begin with, but it sounds very similar to a 4th Amendment issue I have been dealing with lately. Mainly, it had been argued at the turn of the century that the Fourth Amendment, in essence at least, only guarantees the right to be free of search and seizures from the Federal government. Subsequent cases used the 14th Amendment (equal rights under the law) to give citizens 4th Amednment protection from the state and local governments as well.

While this is somewhat a footnote to Heller, it would be interesting if the Court addresses this issue, and applied the Fourteenth Amendment to the Second Amendment right.

Just something that occured to me as potentially interesting.
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  #43  
Old February 18th, 2008, 05:10 PM
JSQ JSQ is offline
Jack Quinlan
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Another interesting argument is the suggestion that the 2nd ammendment provides no guarantees for protection of individual assembly in the state militia, but rather prevents the interference of the federal government in the assembly because individual rights are tenets of English common law and were assumed as defacto by early Americans.

I think this assertion is completely ridiculous.
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  #44  
Old February 19th, 2008, 07:44 AM
johnlee johnlee is offline
John Lee
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Quote:
Originally Posted by montanablur
What are this forums opinions of the ramifications, if any, with all the recent shootings will be?

I don't think the shootings will make any difference. Anti-gun people will point to the shootings and argue we need stricter gun laws to prevent the psychos from getting guns. Pro-gun people will point to the shootings and argue we need more widespread carry laws so that law-abiding people can pack heat to protect themselves from the psychos.

Obviously, I side with the latter camp.
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  #45  
Old February 19th, 2008, 08:30 AM
johnlee johnlee is offline
John Lee
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Quote:
Originally Posted by thomaskimura
it would be interesting if the Court addresses this issue, and applied the Fourteenth Amendment to the Second Amendment right.

I highly doubt the Supreme Court will address this issue in Heller, because the issue is not before it. Heller concerns the District of Columbia, which is not a state. I can't recall the exact legal parlance, but my recollection is that the District of Columbia is a "federal enclave" or something to that effect. It's not a "state" under the Constitution. Remember that the jurisdiction of the federal courts is limited only to "actual cases and controversies". The federal courts can adjudicate only legal questions that are actually before them, and not abstract questions of law. Anything else, and the federal courts are overstepping their bounds.

Of course, if the Supreme Court rules that the Second Amendment protects individual rights, then you can bet the farm that there will be a flurry of cases filed immediately thereafter that pertain to the states, to settle the question of whether the Fourteenth Amendment incorporated the Second Amendment.

If the Supreme Court holds that the Second Amendment protects an individual right, then I think it's pretty much inevitable that it will hold later on that the Second Amendment was incorporated by the Fourteenth Amendment and applies to the states as well as the federal government.

The rule in the Ninth Circuit right now is that the Second Amendment was not incorporated by the Fourteenth Amendment. Here's footnote 17 of Silveira v. Lockyer:

Quote:
We concluded in Hickman that because the individual plaintiff had no legally protectable interest under the Second Amendment, he lacked constitutional standing to bring a claim under that provision. Other courts have addressed Second Amendment claims on the merits, rather than under the rubric of standing doctrine. See, e.g., Gillespie, 185 F.3d at 710 (offering an informed discussion not only of the standing issue but also of some of the amendment’s possible applications). Although in every case we are required to examine standing issues first, see, e.g., Scott v. Pasadena Unified School Dist., 306 F.3d 646, 653-54 (9th Cir. 2002) (“We must establish jurisdiction before proceeding to the merits of the case.”), here an examination of that question requires us as a first step to conduct a thorough analysis of the scope and purpose of the Second Amendment. Only after determining the amendment’s scope and purpose can we answer the question whether individuals, specifically the plaintiffs here, have standing to sue. Thus, as a practical matter, the choice of jurisprudential approach makes little or no difference. Because we held in Hickman that the absence of an individually enforceable Second Amendment right resulted in a lack of standing, we follow our precedent and decide the case on that basis here.

In Hickman, we did not rely on our earlier decision in Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723 (9th Cir. 1992), that the Second Amendment is not incorporated by the Fourteenth and does not constrain actions by the states, although we noted in dictum that had standing existed, Fresno Rifle would be applicable. We undoubtedly followed that approach in Hickman because, as noted above, we must decide standing issues first. Fresno Rifle itself relied on United States v. Cruikshank, 92 U.S. 542 (1876), and Presser v. Illinois, 116 U.S. 252 (1886), decided before the Supreme Court held that the Bill of Rights is incorporated by the Fourteenth Amendment’s Due Process Clause. Following the now-rejected Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833) (holding that the Bill of Rights did not apply to the states), Cruikshank and Presser found that the Second Amendment restricted the activities of the federal government, but not those of the states. One point about which we are in agreement with the Fifth Circuit is that Cruikshank and Presser rest on a principle that is now thoroughly discredited. See Emerson, 270 F.3d at 221 n.13. Because we decide this case on the threshold issue of standing, however, we need not consider the question whether the Second Amendment presently enjoins any action on the part of the states.

The Ninth Circuit takes a weirdo approach to standing so the discussion in Silveira is convoluted and difficult for the layman to understand. But even Silveira admits that that "Cruikshank and Presser rest on a principle that is now thoroughly discredited". Cruikshank and Presser are pre-incorporation cases. While the Supreme Court has never explicitly held that the Second Amendment was incorporated by the Fourteenth Amendment, I think it will be an inevitable conclusion if the Court holds that the Second Amendment protects an individual, fundamental right.
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  #46  
Old February 20th, 2008, 10:53 AM
Blueboy
 
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the history of the District of Columbia is pretty interesting as the formation of the District dates back to when the Constitution was adopted.

there is a decent read here - http://www.narpac.org/ITXICE.HTM

scroll down aways to see the history.

and John, thanks for keeping us up to date since the ramifications of this ruling will be broad.

looking forward to March 18th.

forgot to add - yes, the District is considered a Federal Enclave - it is similiar with Natl. Parks, military bases.


Jaime
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  #47  
Old February 29th, 2008, 08:37 PM
johnlee johnlee is offline
John Lee
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Quote:
Brown v. Board of Education, 347 U.S. 483 (1954)

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.

In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called "separate but equal" doctrine announced by this Court in Plessy v. Fergson, 163 U.S. 537. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.

The plaintiffs contend that segregated public schools are not "equal" and cannot be made "equal," and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction. Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court.

Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then-existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among "all persons born or naturalized in the United States." Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.

An additional reason for the inconclusive nature of the Amendment's history with respect to segregated schools is the status of public education at that time. In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences, as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states, and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.

In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race. The doctrine of "separate but equal" did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation. American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the "separate but equal" doctrine in the field of public education. In Cumming v. County Board of Education, 175 U.S. 528, and Gong Lum v. Rice, 275 U.S. 78, the validity of the doctrine itself was not challenged. In more recent cases, all on the graduate school level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. Missouri ex rel. Gaines v. Canada, 305 U.S. 337; Sipuel v. Oklahoma, 332 U.S. 631; Sweatt v. Painter, 339 U.S. 629; McLaurin v. Oklahoma State Regents, 339 U.S. 637. In none of these cases was it necessary to reexamine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education.

In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other "tangible" factors. Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.

In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on "those qualities which are incapable of objective measurement but which make for greatness in a law school." In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: ". . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession." Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:

Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.

Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question -- the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term. The Attorney General of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954.

It is so ordered.
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Old March 3rd, 2008, 08:30 PM
johnlee johnlee is offline
John Lee
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Another great case from the Supreme Court. The case is infamous in result and more famous for its dissent than for its ruling. Today, we study the dissent and not the majority opinion. The case is:

Quote:
Abrams v. United States, 250 U.S. 616 (1919)

Mr. Justice CLARKE delivered the opinion of the Court.

On a single indictment, containing four counts, the five plaintiffs in error, hereinafter designated the defendants, were convicted of conspiring to violate provisions of the Espionage Act of Congress (section 3, title I, of Act June 15, 1917, c. 30, 40 Stat. 219, as amended by Act May 16, 1918, c. 75, 40 Stat. 553 [Comp. St. 1918, 10212c]).

Each of the first three counts charged the defendants with conspiring, when the United States was at war with the Imperial Government of Germany, to unlawfully utter, print, write and publish: In the first count, 'disloyal, scurrilous and abusive language about the form of government of the United States;' in the second count, language 'intended to bring the form of government of the United States into contempt, scorn, contumely, and disrepute;' and in the third count, language 'intended to incite, provoke and encourage resistance to the United States in said war.' The charge in the fourth count was that the defendants conspired 'when the United States was at war with the Imperial German Government, ... unlawfully and willfully, by utterance, writing, printing and publication to urge, incite and advocate curtailment of production of things and products, to wit, ordnance and ammunition, necessary and essential to the prosecution of the war.' The offenses were charged in the language of the act of Congress.

It was charged in each count of the indictment that it was a part of the conspiracy that the defendants would attempt to accomplish their unlawful purpose by printing, writing and distributing in the city of New York many copies of a leaflet or circular, printed in the English language, and of another printed in the Yiddish language, copies of which, properly identified, were attached to the indictment.

All of the five defendants were born in Russia. They were intelligent, had considerable schooling, and at the time they were arrested they had lived in the United States terms varying from five to ten years, but none of them had applied for naturalization. Four of them testified as witnesses in their own behalf, and of these three frankly avowed that they were 'rebels,' 'revolutionists,' 'anarchists,' that they did not believe in government in any form, and they declared that they had no interest whatever in the government of the United States. The fourth defendant testified that he was a 'Socialist' and believed in 'a proper kind of government, not capitalistic,' but in his classification the government of the United States was 'capitalistic.'

It was admitted on the trial that the defendants had united to print and distribute the described circulars and that 5,000 of them had been printed and distributed about the 22d day of August, 1918. The group had a meeting place in New York City, in rooms rented by defendant Abrams, under an assumed name, and there the subject of printing the circulars was discussed about two weeks before the defendants were arrested. The defendant Abrams, although not a printer, on July 27, 1918, purchased the printing outfit with which the circulars were printed, and installed it in a basement room where the work was done at night. The circulars were distributed, some by throwing them from a window of a building where one of the defendants was employed and others secretly, in New York City.

The defendants pleaded 'not guilty,' and the case of the government consisted in showing the facts we have stated, and in introducing in evidence copies of the two printed circulars attached to the indictment, a sheet entitled 'Revolutionists Unite for Action,' written by the defendant Lipman, and found on him when he was arrested, and another paper, found at the headquarters of the group, and for which Abrams assumed responsibility.

Thus the conspiracy and the doing of the overt acts charged were largely admitted and were fully established.

On the record thus described it is argued, somewhat faintly, that the acts charged against the defendants were not unlawful because within the protection of that freedom of speech and of the press which is guaranteed by the First Amendment to the Constitution of the United States, and that the entire Espionage Act is unconstitutional because in conflict with that amendment.

This contention is sufficiently discussed and is definitely negatived in Schenck v. United States and Baer v. United States, 249 U.S. 47 , 39 Sup. Ct. 247, and in Frohwerk v. United States, 249 U.S. 204 , 39 Sup. Ct. 249.

The claim chiefly elaborated upon by the defendants in the oral argument and in their brief is that there is no substantial evidence in the record to support the judgment upon the verdict of guilty and that the motion of the defendants for an instructed verdict in their favor was erroneously denied. A question of law is thus presented, which calls for an examination of the record, not for the purpose of weighing conflicting testimony, but only to determine whether there was some evidence, competent and substantial, before the jury, fairly tending to sustain the verdict. Troxell, Administrator, v. Delaware, Lackawanna & Western R. R. Co., 227 U.S. 434, 442 , 33 S. Sup. Ct. 274; Lancaster v. Collins, 115 U.S. 222, 225 , 6 S. Sup. Ct. 33; Chicago & North Western Ry. Co. v. Ohle, 117 U.S. 123, 129 , 6 S. Sup. Ct. 632. We shall not need to consider the sufficiency, under the rule just stated, of the evidence introduced as to all of the counts of the indictment, for, since the sentence imposed did not exceed that which might lawfully have been imposed under any single count, the judgment upon the verdict of the jury must be affirmed if the evidence is sufficient to sustain any one of the counts. Evans v. United States, 153 U.S. 608 , 14 Sup. Ct. 939; Claassen v. United States, 142 U.S. 140 , 12 Sup. Ct. 169; Debs v. United States, 249 U.S. 211, 216 , 39 S. Sup. Ct. 252.

The first of the two articles attached to the indictment is conspicuously headed, 'The Hypocrisy of the United States and her Allies.' After denouncing President Wilson as a hypocrite and a coward because troops were sent into Russia, it proceeds to assail our government in general, saying:- 'His [the President's] shameful, cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington and vicinity.'

It continues:
'He [the President] is too much of a coward to come out openly and say: 'We capitalistic nations cannot afford to have a proletarian republic in Russia."
Among the capitalistic nations Abrams testified the United States was included.

Growing more inflammatory as it proceeds, the circular culminates in:
'The Russian Revolution cries: Workers of the World! Awake! Rise! Put down your enemy and mine!'

'Yes friends, there is only one enemy of the workers of the world and that is CAPITALISM.'
This is clearly an appeal to the 'workers' of this country to arise and put down by force the government of the United States which they characterize as their 'hypocritical,' 'cowardly' and 'capitalistic' enemy.

It concludes:
'Awake! Awake, you Workers of the World!

REVOLUTIONISTS.'
The second of the articles was printed in the Yiddish language and in the translation is headed, 'Workers-Wake Up.' After referring to 'his Majesty, Mr. Wilson, and the rest of the gang, dogs of all colors!' it continues:
'Workers, Russian emigrants, you who had the least belief in the honesty of our government,'
- which defendants admitted referred to the United States government--
'must now throw away all confidence, must spit in the face the false, hypocritic, military propaganda which has fooled you so relentlessly, calling forth your sympathy, your help, to the prosecution of the war.'
The purpose of this obviously was to persuade the persons to whom it was addressed to turn a deaf ear to patriotic appeals in behalf of the government of the United States, and to cease to render it assistance in the prosecution of the war.

It goes on:
'With the money which you have loaned, or are going to loan them, they will make bullets not only for the Germans, but also for the Workers Soviets of Russia. Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, but also your dearest, best, who are in Russia and are fighting for freedom.'
It will not do to say, as is now argued, that the only intent of these defendants was to prevent injury to the Russian cause. Men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce. Even if their primary purpose and intent was to aid the cause of the Russian Revolution, the plan of action which they adopted necessarily involved, before it could be realized, defeat of the war program of the United States, for the obvious effect of this appeal, if it should become effective, as they hoped it might, would be to persuade persons of character such as those whom they regarded themselves as addressing, not to aid government loans and not to work in ammunition factories, where their work would produce 'bullets, bayonets, cannon' and other munitions of war, the use of which would cause the 'murder' of Germans and Russians.

Again, the spirit becomes more bitter as it proceeds to declare that--
'America and her Allies have betrayed [the Workers]. Their robberish aims are clear to all men. The destruction of the Russian Revolution, that is the politics of the march to Russia.

'Workers, our reply to the barbaric intervention has to be a general strike! An open challenge only will let the government know that not only the Russian Worker fights for freedom, but also here in America lives the spirit of Revolution.'
This is not an attempt to bring about a change of administration by candid discussion, for no matter what may have incited the outbreak on the part of the defendant anarchists, the manifest purpose of such a publication was to create an attempt to defeat the war plans of the government of the United States, by bringing upon the country the paralysis of a general strike, thereby arresting the production of all munitions and other things essential to the conduct of the war.

This purpose is emphasized in the next paragraph, which reads:
'Do not let the government scare you with their wild punishment in prisons, hanging and shooting. We must not and will not betray the splendid fighters of Russia. Workers, up to fight.'
After more of the same kind, the circular concludes:
'Woe unto those who will be in the way of progress. Let solidarity live!'
It is signed, 'The Rebels.'

That the interpretation we have put upon these articles, circulated in the greatest port of our land, from which great numbers of soldiers were at the time taking ship daily, and in which great quantities of war supplies of every kind were at the time being manufactured for transportation overseas, is not only the fair interpretation of them, but that it is the meaning which their authors consciously intended should be conveyed by them to others is further shown by the additional writings found in the meeting place of the defendant group and on the person of one of them. One of these circulars is headed: 'Revolutionists! Unite for Action!'

After denouncing the President as 'Our Kaiser' and the hypocrisy of the United States and her Allies, this article concludes:- 'Socialists, Anarchists, Industrial Workers of the World, Socialists, Labor party men and other revolutionary organizations Unite for Action and let us save the Workers' Republic of Russia!
'Know you lovers of freedom that in order to save the Russian revolution, we must keep the armies of the allied countries busy at home.'
Thus was again avowed the purpose to throw the country into a state of revolution, if possible, and to thereby frustrate the military program of the government.

The remaining article, after denouncing the President for what is characterized as hostility to the Russian revolution, continues:
'We, the toilers of America, who believe in real liberty, shall pledge ourselves, in case the United States will participate in that bloody conspiracy against Russia, to create so great a disturbance that the autocrats of America shall be compelled to keep their armies at home, and not be able to spare any for Russia.'
It concludes with this definite threat of armed rebellion:
'If they will use arms against the Russian people to enforce their standard of order, so will we use arms, and they shall never see the ruin of the Russian Revolution.'
These excerpts sufficiently show, that while the immediate occasion for this particular outbreak of lawlessness, on the part of the defendant alien anarchists, may have been resentment caused by our government sending troops into Russia as a strategic operation against the Germans on the eastern battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military plans of the government in Europe. A technical distinction may perhaps be taken between disloyal and abusive language applied to the form of our government or language intended to bring the form of our government into contempt and disrepute, and language of like character and intended to produce like results directed against the President and Congress, the agencies through which that form of government must function in time of war. But it is not necessary to a decision of this case to consider whether such distinction is vital or merely formal, for the language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war, as the third count runs, and, the defendants, in terms, plainly urged and advocated a resort to a general strike of workers in ammunition factories for the purpose of curtailing the production of ordnance and munitions necessary and essential to the prosecution of the war as is charged in the fourth count. Thus it is clear not only that some evidence but that much persuasive evidence was before the jury tending to prove that the defendants were guilty as charged in both the third and fourth counts of the indictment and under the long established rule of law hereinbefore stated the judgment of the District Court must be

AFFIRMED.

Mr. Justice HOLMES, dissenting.

This indictment is founded wholly upon the publication of two leaflets which I shall describe in a moment. The first count charges a conspiracy pending the war with Germany to publish abusive language about the form of government of the United States, laying the preparation and publishing of the first leaflet as overt acts. The second count charges a conspiracy pending the war to publish language intended to bring the form of government into contempt, laying the preparation and publishing of the two leaflets as overt acts. The third count alleges a conspiracy to encourage resistance to the United States in the same war and to attempt to effectuate the purpose by publishing the same leaflets. The fourth count lays a conspiracy to incite curtailment of production of things necessary to the prosecution of the war and to attempt to accomplish it by publishing the second leaflet to which I have referred.

The first of these leaflets says that the President's cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington. It intimates that 'German militarism combined with allied capitalism to crush the Russian revolution'-goes on that the tyrants of the world fight each other until they see a common enemy-working class enlightenment, when they combine to crush it; and that now militarism and capitalism combined, though not openly, to crush the Russian revolution. It says that there is only one enemy of the workers of the world and that is capitalism; that it is a crime for workers of America, etc., to fight the workers' republic of Russia, and ends 'Awake! Awake, you workers of the world! Revolutionists.' A note adds 'It is absurd to call us pro-German. We hate and despise German militarism more than do you hypocritical tyrants. We have more reason for denouncing German militarism than has the coward of the White House.'

The other leaflet, headed 'Workers-Wake Up,' with abusive language says that America together with the Allies will march for Russia to help the Czecko-Slovaks in their struggle against the Bolsheviki, and that his time the hypocrites shall not fool the Russian emigrants and friends of Russia in America. It tells the Russian emigrants that they now must spit in the face of the false military propaganda by which their sympathy and help to the prosecution of the war have been called forth and says that with the money they have lent or are going to lend 'they will make bullets not only for the Germans but also for the Workers Soviets of Russia,' and further, 'Workers in the ammunition factories, you are producing bullets, bayonets, cannon to murder not only the Germans, but also your dearest, best, who are in Russia fighting for freedom.' It then appeals to the same Russian emigrants at some length not to consent to the 'inquisitionary expedition in Russia,' and says that the destruction of the Russian revolution is 'the politics of the march on Russia.' The leaflet winds up by saying 'Workers, our reply to this barbaric intervention has to be a general strike!' and after a few words on the spirit of revolution, exhortations not to be afraid, and some usual tall talk ends 'Woe unto those who will be in the way of progress. Let solidarity live! The Rebels.'

No argument seems to be necessary to show that these pronunciations in no way attack the form of government of the United States, or that they do not support either of the first two counts. What little I have to say about the third count may be postponed until I have considered the fourth. With regard to that it seems too plain to be denied that the suggestion to workers in the ammunition factories that they are producing bullets to murder their dearest, and the further advocacy of a general strike, both in the second leaflet, do urge curtailment of production of things necessary to the prosecution of the war within the meaning of the Act of May 16, 1918, c. 75, 40 Stat. 553, amending section 3 of the earlier Act of 1917 (Comp. St. 10212c). But to make the conduct criminal that statute requires that it should be 'with intent by such curtailment to cripple or hinder the United States in the prosecution of the war.' It seems to me that no such intent is proved.

I am aware of course that the word 'intent' as vaguely used in ordinary legal discussion means no more than knowledge at the time of the act that the consequences said to be intended will ensue. Even less than that will satisfy the general principle of civil and criminal liability. A man may have to pay damages, may be sent to prison, at common law might be hanged, if at the time of his act he knew facts from which common experience showed that the consequences would follow, whether he individually could foresee them or not. But, when words are used exactly, a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed. It may be obvious, and obvious to the actor, that the consequence will follow, and he may be liable for it even if he regrets it, but he does not do the act with intent to produce it unless the aim to produce it is the proximate motive of the specific act, although there may be some deeper motive behind.

It seems to me that this statute must be taken to use its words in a strict and accurate sense. They would be absurd in any other. A patriot might think that we were wasting money on aeroplanes, or making more cannon of a certain kind than we needed, and might advocate curtailment with success, yet even if it turned out that the curtailment hindered and was thought by other minds to have been obviously likely to hinder the United States in the prosecution of the war, no one would hold such conduct a crime. I admit that my illustration does not answer all that might be said but it is enough to show what I think and to let me pass to a more important aspect of the case. I refer to the First Amendment to the Constitution that Congress shall make no law abridging the freedom of speech.

I never have seen any reason to doubt that the questions of law that alone were before this Court in the Cases of Schenck ( 249 U.S. 47 , 29 Sup. Ct. 247) Frohwerk ( 249 U.S. 204 , 39 Sup. Ct. 249), and Debs ( 249 U.S. 211 , 39 Sup. Ct. 252), were rightly decided. I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times.

But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so. Publishing those opinions for the very purpose of obstructing, however, might indicate a greater danger and at any rate would have the quality of an attempt. So I assume that the second leaflet if published for the purposes alleged in the fourth count might be punishable. But it seems pretty clear to me that nothing less than that would bring these papers within the scope of this law. An actual intent in the sense that I have explained is necessary to constitute an attempt, where a further act of the same individual is required to complete the substantive crime, for reasons given in Swift & Co. v. United States, 196 U.S. 375, 396 , 25 S. Sup. Ct. 276. It is necessary where the success of the attempt depends upon others because if that intent is not present the actor's aim may be accomplished without bringing about the evils sought to be checked. An intent to prevent interference with the revolution in Russia might have been satisfied without any hindrance to carrying on the war in which we were engaged.

I do not see how anyone can find the intent required by the statute in any of the defendant's words. The second leaflet is the only one that affords even a foundation for the charge, and there, without invoking the hatred of German militarism expressed in the former one, it is evident from the beginning to the end that the only object of the paper is to help Russia and stop American intervention there against the popular government- not to impede the United States in the war that it was carrying on. To say that two phrases taken literally might import a suggestion of conduct that would have interference with the war as an indirect and probably undesired effect seems to me by no means enough to show an attempt to produce that effect.

I return for a moment to the third count. That charges an intent to provoke resistance to the United States in its war with Germany. Taking the clause in the statute that deals with that in connection with the other elaborate provisions of the Act, I think that resistance to the United States means some forcible act of opposition to some proceeding of the United States in pursuance of the war. I think the intent must be the specific intent that I have described and for the reasons that I have given I think that no such intent was proved or existed in fact. I also think that there is no hint at resistance to the United States as I construe the phrase.

In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; I will add, even if what I think the necessary intent were shown; the most nominal punishment seems to me all that possible could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow-a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the Court.

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798 (Act July 14, 1798, c. 73, 1 Stat. 596), by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, 'Congress shall make no law abridging the freedom of speech.' Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.

Mr. Justice BRANDEIS concurs with the foregoing opinion.
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Old March 4th, 2008, 03:40 PM
JMH JMH is offline
Jonathan Hanson
 
Join Date: Aug 2004
Location: Tucson, more or less.
Posts: 274
" . . . about to unleash a taste of armageddon." Cool. Roseann also carries a P7, and has used this very one in anger, to decisively frighten off a nude pervert on a deserted stretch of Arizona's San Pedro River. She's actually had anti-gun people suggest she should have used judo or pepper spray instead.



Obviously, she is a believer in the individual right.
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  #50  
Old March 4th, 2008, 06:15 PM
johnlee johnlee is offline
John Lee
K6YJ
 
Join Date: Sep 2003
Location: Torrance, CA
Posts: 16,070
There's something wrong with this thread.

First we have Roseann Hanson with a marvelous Wm. Jeffery's double:




and an equally wonderful P7 from Messrs. Heckler und Koch:




No M8 for this traditionalist. It's a P7.

Then we have homegirl with a P7M8, also from Heckler & Koch:




and a Scout Rifle, conceived by Jeff Cooper and produced by the gentlemen at Steyr-Mannlicher GmbH:




How come the women have all of the sweet weaponry?

What's next? Is Justice Ginsburg going to be packing a Triple Lock?
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