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  #51  
Old March 5th, 2008, 09:13 AM
thomaskimura thomaskimura is offline
Thomas Kimura
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Join Date: Nov 2005
Posts: 178
Quote:
Originally Posted by Justice HOLMES

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.

What a badass.
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  #52  
Old March 5th, 2008, 12:58 PM
JMH JMH is offline
Jonathan Hanson
 
Join Date: Aug 2004
Location: Tucson, more or less.
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John, you could have more nice weapons if you didn't spend so much on golf clubs.
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  #53  
Old March 5th, 2008, 01:18 PM
johnlee johnlee is offline
John Lee
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Join Date: Sep 2003
Location: Torrance, CA
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Actually, my golf clubs were cheap.

Titleist 905R driver: $150
Titleist 906F4 spoon: $170
Mizuno MP-33 irons: $600
Mizuno MP-T wedges: $300
Seemore mFGP putter: $325

That's about $1500. That's what a P7M8 goes for. And I use my sticks far more than my P7M8.

And I've spent far more on guns than on sticks too. For example, I have three P7M8's and a P7K3. They didn't cost me $1500 apiece, but they cost the equivalent of $1500 when I bought them years ago. (A grand for a pistol during law school was a hell of a lot of money. Fortunately, there are such things as student loans.) My most expensive gun, my Krieghoff K-20, was $18,000. I've never spent that kind of money on golf clubs. Not even close.
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  #54  
Old March 5th, 2008, 02:14 PM
johnlee johnlee is offline
John Lee
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Quote:
Originally Posted by thomaskimura
What a badass.

Holmes was a bad ass. No doubt. Yet he remains somewhat of an enigma to me.

Abrams was decided on November 10, 1919. Seven members of the Abrams Court voted to affirm the conviction. Holmes and Brandeis dissented on the ground that the First Amendment protected the speech in question.

And yet on March 3, 1919, only several months before Abrams was decided, Holmes wrote Schenck v. United States, a unanimous decision by the Court:

Quote:
Schenck v. United States, 249 U.S. 47 (1919)

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917, c. 30, § 3, 40 Stat. 217, 219, by causing and attempting to cause insubordination, &c., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to-wit, that the defendants willfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the document set forth. The second count alleges a conspiracy to commit an offence against the United States, to-wit, to use the mails for the transmission of matter declared to be nonmailable by Title XII, § 2 of the Act of June 15, 1917, to-wit, the above mentioned document, with an averment of the same overt acts. The third count charges an unlawful use of the mails for the transmission of the same matter and otherwise as above. The defendants were found guilty on all the counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press....

The document in question, upon its first printed side, recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the Conscription Act, and that a conscript is little better than a convict. In impassioned language, it intimated that conscription was despotism in its worst form, and a monstrous wrong against humanity in the interest of Wall Street's chosen few. It said "Do not submit to intimidation," but in form, at least, confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed "Assert Your Rights." It stated reasons for alleging that anyone violated the Constitution when he refused to recognize "your right to assert your opposition to the draft," and went on
"If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain."
It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves, &c., &c., winding up, "You must do your share to maintain, support and uphold the rights of the people of this country." Of course, the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out. The defendants do not deny that the jury might find against them on this point.

But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose, as intimated in Patterson v. Colorado, 205 U. S. 454, 462. We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U. S. 194, 205, 195 U. S. 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 439. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917, in § 4, punishes conspiracies to obstruct, as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. Goldman v. United States, 245 U. S. 474, 477. Indeed, that case might be said to dispose of the present contention if the precedent covers all media concludendi. But, as the right to free speech was not referred to specially, we have thought fit to add a few words.

It was not argued that a conspiracy to obstruct the draft was not within the words of the Act of 1917. The words are "obstruct the recruiting or enlistment service," and it might be suggested that they refer only to making it hard to get volunteers. Recruiting heretofore usually having been accomplished by getting volunteers, the word is apt to call up that method only in our minds. But recruiting is gaining fresh supplies for the forces, as well by draft as otherwise. It is put as an alternative to enlistment or voluntary enrollment in this act. The fact that the Act of 1917 was enlarged by the amending Act of May 16, 1918, c. 75, 40 Stat. 553, of course, does not affect the present indictment, and would not even if the former act had been repealed. Rev.Stats., § 13.

Judgments affirmed.

Now, I can see how a man may change his mind. In the several months between Schenk and Abrams, Holmes may have changed his mind. That's cool. But in Abrams, Holmes writes:

Quote:
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 don't know. I don't see any real difference between what Abrams did and what Schenck did, and yet Holmes' treatment changes completely.

But whatever. Holmes' greatness remains. The concept of a marketplace of ideas approach to the First Amendment remains with us today. The idea of a man's yelling "fire!" in a crowded theater not being protected speech is commonplace now. People say this all the time: "you can't yell fire in a crowded theater". And the "clear and present danger" language is common enough that it's even in common parlance. It's even the title of movies.

These ideas and their elegant language, as well as their greatness and their longevity in the Common Law, make Oliver Wendell Holmes, at least to me, one of the greatest jurists of all time.

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  #55  
Old March 6th, 2008, 09:27 PM
thomaskimura thomaskimura is offline
Thomas Kimura
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Join Date: Nov 2005
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I agree the decisions seem rather contradictory, but I'm not sure there isn't a very real distinction between these cases. I find the historical inquiry especially interesting. As Jack and I often lament, the Great War Generation has now almost entirely passed; as of February, I believe there was only one WWI veteran still alive. Likewise, whereas veterans of WWII returned home to attend the rapidly growing number of universities, those of the Great War largely returned to rural areas and picked up where they left off. While my understanding of the conduct of the war is descent, I'm rather lacking in the social history. From memory and from what I'm gathering from Wikipedia, it seems that hindrance of recruiting and conscription was taken rather seriously whereas socialism was seen as almost laughable. Take Debs v. United States, 249 U.S. 211. This is another Holmes decision from 1919 that I found wherein he upheld the ten year conviction, and disenfranchisement for life, of former socialist presidential candidate Eugene Debs for, arguably, hindering recruitment efforts:

Mr. Justice HOLMES delivered the opinion of the Court.

This is an indictment under the Espionage Act of June 15, 1917, c. 30, tit. 1, 3, 40 Stat. 219, as amended by the Act of May 16, 1918, c. 75, 1, 40 Stat. 553 (Comp. St. 1918, 10212c). It has been cut down to two counts, originally the third and fourth. The former of these alleges that on or about June 16, 1918, at Canton, Ohio, the defendant caused and incited and attempted to cause and incite insubordination, disloyalty, mutiny and refusal of duty in the military and naval forces of the United States and with intent so to do delivered, to an assembly of people, a public speech, set forth. The fourth count alleges that he obstructed and attempted to obstruct the recruiting and enlistment service of the United States and to that end and with that intent delivered the same speech, again set forth. There was a demurrer to the indictment on the ground that the statute is unconstitutional as interfering with free speech, contrary to the First Amendment, and to the several counts as insufficiently stating the supposed offence. This was overruled, subject to exception. There were other exceptions to the admission of evidence with which we shall deal. The defendant was found guilty and was sentenced to ten years' imprisonment on each of the two counts, the punishment to run concurrently on both.

The main theme of the speech was Socialism, its growth, and a prophecy of its ultimate success. With that we have nothing to do, but if a part or the manifest intent of the [249 U.S. 211, 213] more general utterances was to encourage those present to obstruct the recruiting service and if in passages such encouragement was directly given, the immunity of the general theme may not be enough to protect the speech. The speaker began by saying that he had just returned from a visit to the workhouse in the neighborhood where three of their most loyal comrades were paying the penalty for their devotion to the working class- these being Wagenknecht, Baker and Ruthenberg, who had been convicted of aiding and abetting another in failing to register for the draft. Ruthenberg v. United States, 245 U.S. 480 , 38 Sup. Ct. 168. He said that he had to be prudent and might not be able to say all that he thought, thus intimating to his hearers that they might infer that he meant more, but he did say that those persons were paying the penalty for standing erect and for seeking to pave the way to better conditions for all mankind. Later he added further eulogies and said that he was proud of them. He then expressed opposition to Prussian militarism in a way that naturally might have been thought to be intended to include the mode of proceeding in the United States.

After considerable discourse that it is unnecessary to follow, he took up the case of Kate Richards O'Hare, convicted of obstructing the enlistment service, praised her for her loyalty to Socialism and otherwise, and said that she was convicted on false testimony, under a ruling that would seem incredible to him if he had not had some experience with a Federal Court. We mention this passage simply for its connection with evidence put in at the trial. The defendant spoke of other cases, and then, after dealing with Russia, said that the master class has always declared the war and the subject class has always fought the battles-that the subject class has had nothing to gain and all to lose, including their lives; that the working class, who furnish the corpses, have never yet had a voice in declaring war and never yet had a voice in declaring [249 U.S. 211, 214] peace. 'You have your lives to lose; you certainly ought to have the right to declare war if you consider a war necessary.' The defendant next mentioned Rose Pastor Stokes, convicted of attempting to cause insubordination and refusal of duty in the military forces of the United States and obstructing the recruiting service. He said that she went out to render her service to the cause in this day of crises, and they sent her to the penitentiary for ten years; that she had said no more than the speaker had said that afternoon; that if she was guilty so was he, and that he would not be cowardly enough to plead his innocence; but that her message that opened the eyes of the people must be suppressed, and so after a mock trial before a packed jury and a corporation tool on the bench, she was sent to the penitentiary for ten years.

There followed personal experiences and illustrations of the growth of Socialism, a glorification of minorities, and a prophecy of the success of the international Socialist crusade, with the interjection that 'you need to know that you are fit for something better than slavery and cannon fodder.' The rest of the discourse had only the indirect though not necessarily ineffective bearing on the offences alleged that is to be found in the usual contrasts between capitalists and laboring men, sneers at the advice to cultivate war gardens, attribution to plutocrats of the high price of coal, &c., with the implication running through it all that the working men are not concerned in the war, and a final exhortation, 'Don't worry about the charge of treason to your masters; but be concerned about the treason that involves yourselves.' The defendant addressed the jury himself, and while contending that his speech did not warrant the charges said, 'I have been accused of obstructing the war. I admit it. Gentlemen, I abhor war. I would oppose the war if I stood alone.' The statement was not necessary to warrant the jury in finding that one purpose of the speech, whether incidental [249 U.S. 211, 215] or not does not matter, was to oppose not only war in general but this war, and that the opposition was so expressed that its natural and intended effect would be to obstruct recruiting. If that was intended and if, in all the circumstances, that would be its probable effect, it would not be protected by reason of its being part of a general program and expressions of a general and conscientious belief.

The chief defences upon which the defendant seemed willing to rely were the denial that we have dealt with and that based upon the First Amendment to the Constitution, disposed of in Schenck v. United States, 249 U.S. 47 , 39 Sup. Ct. 247. His counsel questioned the sufficiency of the indictment. It is sufficient in form. Frohwerk v. United States, 249 U.S. 204 , 39 Sup. Ct. 249. The most important question that remains is raised by the admission in evidence of the record of the conviction of Ruthenberg, Wagenknecht and Baker, Rose Pastor Stokes, and Kate Richards O'Hare. The defendant purported to understand the grounds on which these persons were imprisoned and it was proper to show what those grounds were in order to show what he was talking about, to explain the true import of his expression of sympathy and to throw light on the intent of the address, so far as the present matter is concerned.

There was introduced also an 'Anti-War Proclamation and Program' adopted at St. Louis in April, 1917, coupled with testimony that about an hour before his speech the defendant had stated that he approved of that platform in spirit and in substance. The defendant referred to it in his address to the jury, seemingly with satisfaction and willingness that it should be considered in evidence. But his counsel objected and has argued against its admissibility at some length. This document contained the usual suggestion that capitalism was the cause of the war and that our entrance into it 'was instigated by the predatory capitalists in the United States.' It alleged that the war [249 U.S. 211, 216] of the United States against Germany could not 'be justified even on the plea that it is a war in defence of American rights or American 'honor." It said:

'We brand the declaration of war by our Governments as a crime against the people of the United States and against the nations of the world. In all modern history there has been no war more unjustifiable than the war in which we are about to engage.'
Its first recommendation was, 'continuous, active, and public opposition to the war, through demonstrations, mass petitions, and all other means within our power.' Evidence that the defendant accepted this view and this declaration of his duties at the time that he made his speech is evidence that if in that speech he used words tending to obstruct the recruiting service he meant that they should have that effect. The principle is too well established and too manifestly good sense to need citation of the books. We should add that the jury were most carefully instructed that they could not find the defendant guilty for advocacy of any of his opinions unless the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service , &c., and unless the defendant had the specific intent to do so in his mind.

Without going into further particulars we are of opinion that the verdict on the fourth count, for obstructing and attempting to obstruct the recruiting service of the United States, must be sustained. Therefore it is less important to consider whether that upon the third count, for causing and attempting to cause insubordination, &c., in the military and naval forces, is equally impregnable. The jury were instructed that for the purposes of the statute the persons designated by the Act of May 18, 1917, c. 15, 40 Stat. 76 (Comp. St. 1918, 2044a-2044k), registered and enrolled under it, and thus subject to be called into the active service, were a part of the military forces of the United States. The Government presents a strong argument from the history of the statutes that the instruction [249 U.S. 211, 217] was correct and in accordance with established legislative usage. We see no sufficient reason for differing from the conclusion but think it unnecessary to discuss the question in detail.

Judgment affirmed.



I think the fourth paragraph provides a glimpse into Holmes' perception. Mainly, I take the fourth paragraph to mean something like "they were talking about some weirdo socialism crap but then they talked about the war and recruiting, and that's a problem." Mostly this seems to be a question of history, but it seems that our perception of free speech and socialism is profoundly different than that of this generation. In both Abrams and Debs Holmes seems to dismiss the ideas of socialists and anarchists as raving lunatics. From Abrams:

"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."

The "squared the circle" seems especially indicative of Holmes' contempt for socialism and the ideas stated by the defendants. They were simply too far fetched to be taken seriously. I need to read up much more on the social history of this era, but it seems that the only real concerns for leftist ideology came from organized labor. It would not be until the late 20s that the country came to have a fear of anarchists, perhaps indicated by the execution of Sacco and Vanzeeti, and it would not be until the late 1940s and the 1950s that the country cared in any real sense about communism.

I just seems important to remember that at this point, a strong majority of the country remained illiterate, children were still working in factories, and only a limited few went to university. Today it is clear that activists can make concerted efforts to hinder recruitment, and of course there are few prohibitions against socialism. The distinction drawn by Holmes, which I can only believe was deliberate, reflects what is, essentially, the mentality of the essentially pre-modern society of 1919.
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  #56  
Old March 7th, 2008, 05:35 AM
JMH JMH is offline
Jonathan Hanson
 
Join Date: Aug 2004
Location: Tucson, more or less.
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Quote:
And I use my sticks far more than my P7M8.

That's your problem right there, John!
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  #57  
Old March 9th, 2008, 05:57 PM
Roseann
 
Posts: n/a
Quote:
Originally Posted by johnlee
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?

Perhaps we women have all the sweet weaponry because of the shopping gene? Just kidding. I hate shopping.

Let's hope Ms. Ginsburg sees the light.

Is this:
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.
. . . really one of the filed arguments? Wow.

And by the way, in full disclosure here - the Jeffery is not mine . . . though we bought it in England, it's currently residing in the collection of a friend and often available to borrow. My personal bird gun is actually this wonderful Webley & Scott 16 ga:



For home protection, I prefer our simple pump 12 ga, though.

Clearly whoever filed the argument above has no clue about self-defense - has never been in a defensive situation. Physical subordination? I'm 5'7" and weigh 120 fully kitted out, but have no trouble with the heavy 12 ga Mossberg, and know for sure, from personal experience, that in full-on-fight-or-flight adrenalin-mode, I could easily heft an M-4 or similar and never even notice.

But then again, I suppose it's a legal argument - in the end, whatever it takes to win the day would be okay by me. I'm not giving up my CCW and lovely P7.
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  #58  
Old March 10th, 2008, 08:39 AM
johnlee johnlee is offline
John Lee
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You go, girl.
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  #59  
Old March 18th, 2008, 06:18 PM
Blueboy
 
Posts: n/a
John,

any insight on what took place?


Jaime
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  #60  
Old March 19th, 2008, 09:57 AM
thomaskimura thomaskimura is offline
Thomas Kimura
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  #61  
Old March 19th, 2008, 04:48 PM
johnlee johnlee is offline
John Lee
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Join Date: Sep 2003
Location: Torrance, CA
Posts: 16,068
You can also hear the audio of oral arguments here:

http://www.oyez.org/cases/2000-2009/...8-argument.mp3

I think it's best to listen to the audio while reading the transcript. If you only listen to the audio, it can be difficult to grasp who is saying what as well as what is being said. If you only read the transcript, it can be difficult to get a good grasp of the timing of the justice's comments or questions.

Quote:
Originally Posted by Blueboy
any insight on what took place?

I don't know. Predicting how the Supreme Court will rule is very difficult. Not even Dionne Warwick and her psychic friends could do it.

However, I got the feeling that Chief Justice Roberts, as well as Justice Scalia, Justice Kennedy, and Justice Alito will have a pro-gun view when they vote. That's four right there. Justice Thomas speaks very little during oral arguments, but I think it's safe to say that he's pro-gun. That's five, and it takes five votes to create a majority opinion.

I got the feeling that Justice Ginsburg is on the fence.

I also got the feeling that Justices Stevens, Souter, and Breyer are in favor of the collective-right view, or at least are in favor of something like the individual-right interpretation combined with something like a rational-basis review for gun laws.

Frankly, I don't see how any Supreme Court justice could go on record as ruling that the Second Amendment protects a collective right. The very idea is absurd. It says right there the "right of the people". How can any justice, regardless of his political leanings, rule otherwise? If I were a justice and were very anti-gun, I would simply rule that the Second Amendment protects an individual right, but that only rational basis review applies and thus 99% of gun laws would be upheld. I would get the result I wanted, but I wouldn't go down in History as a moron.

Thus, I think the real battle in the Supreme Court will be for the level of scrutiny. I think most or all of the justices will rule for the individual-right interpretation. How they will rule on the level of scrutiny remains highly uncertain. The Court may even sidestep the scrutiny question all together and rule simply that the D.C.'s absolute ban on handguns fails any level of scrutiny and leave it at that. I hope not.

Justice Scalia struck me as being very in favor of the individual-right view and for strict scrutiny. He gave indications several times and even hinted to Heller's counsel how he should answer. I love this bit from Scalia:

Quote:
MR. DELLINGER: It's a reasonable regulation for two kinds of reasons. First, in order -- the amendment speaks of a well-regulated militia. Perhaps it's the case that having everybody have whatever gun they want of whatever kind would advance a well-regulated militia, but perhaps not. But, in any event --

JUSTICE SCALIA: It means "well trained," doesn't it?

MR. DELLINGER: When you -- when you have one --

JUSTICE SCALIA: Doesn't "well regulated" mean "well trained"? It doesn't mean "massively regulated." It means "well trained."

Justice Scalia gets it. Chumps like Constitutional Law professor Erwin Chemerinsky or the District's counsel argue, quite dishonestly I think, that "well regulated" means "highly controlled" or something similar. I could not disagree more. I think of "well regulated" to mean well adjusted, as in "regulated sights" or "regulated barrels". I'm glad Justice Scalia agrees.

Justice Kennedy was a surprise for me. He seemed all into the self-defense thing. He was all over it, in fact. This leads me to believe he is one who believes the extent of the Second Amendment right (the right to keep and bear arms) is broader than its civic purpose (a well-regulated militia). Kennedy has been, over the years, a swing vote in many of the big/controversial Supreme Court cases. How he votes in Heller just might decide the case.

This was the first time I heard Justice Breyer speak. He sounds very impressive on tape. I also thought the Solicitor General did a very good job on oral argument. He was very clear. Heller's counsel and the District's counsel didn't do it for me. I thought they both sucked. Not that I can do better, but I don't practice before the Supreme Court.

If you want to put faces to the names, here's Chief Justice John Roberts:


John Paul Stevens:


Antonin Scalia:


Anthony Kennedy:


David Souter:


Clarence Thomas:


Ruth Bader Ginsburg:


Stephen Breyer:


Samuel Alito:


You may agree or disagree with what these Justices say or how they rule. But they are all bad asses.
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  #62  
Old March 20th, 2008, 03:42 AM
Blueboy
 
Posts: n/a
thanks John.


Jaime
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  #63  
Old March 22nd, 2008, 05:08 PM
johnlee johnlee is offline
John Lee
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Join Date: Sep 2003
Location: Torrance, CA
Posts: 16,068
For what it's worth, the newspapers seem to think the Supreme Court will rule in favor of the individual-right interpretation.

Chicago Tribune:

http://www.chicagotribune.com/news/n...,7945192.story

Washington Post:

http://www.washingtonpost.com/wp-dyn...031801354.html

USA Today:

http://www.usatoday.com/news/washing...terstitialskip

Los Angeles Times:

http://www.latimes.com/news/nationwo...,4813199.story

New York Times:

http://www.nytimes.com/2008/03/19/wa...yt&oref=slogin
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  #64  
Old March 24th, 2008, 05:53 AM
JMH JMH is offline
Jonathan Hanson
 
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It's looking good . . .
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  #65  
Old March 26th, 2008, 12:05 PM
johnlee johnlee is offline
John Lee
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Check out these pricks:

http://www.aclu.org/police/gen/14523res20020304.html

What make the ACLU pricks is not that they support the collective-right interpretation of the Second Amendment. They can take whatever stance they want. Not everyone is going to agree. Rather, what makes them pricks is that they state:

Quote:
The national ACLU is neutral on the issue of gun control.

Neutral? These assholes are far from neutral. They are about as neutral as the NRA. For example:

Quote:
We believe that the constitutional right to bear arms is primarily a collective one, intended mainly to protect the right of the states to maintain militias to assure their own freedom and security against the central government. In today's world, that idea is somewhat anachronistic and in any case would require weapons much more powerful than handguns or hunting rifles. The ACLU therefore believes that the Second Amendment does not confer an unlimited right upon individuals to own guns or other weapons nor does it prohibit reasonable regulation of gun ownership, such as licensing and registration.

An unlimited right? Nice. So the ACLU apparently believe that if a right to keep and bear arms exists, it must be unlimited or absolute? Again, these assholes are far from neutral.

I like this one too:

Quote:
"The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment [as set forth in the 1939 case, U.S. v. Miller] that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms." — Policy #47

That's funny. I thought the problem with Miller was that it was capable of two different intrepretations. Note that both sides in the gun argument cite to Miller as supporting their side. And, as Justice Kennedy pointed out in Heller's oral arguments, Miller has the problem of being both overinclusive (protecting any smallarm used by the military forces) and underinclusive (ignoring other aspects of gun ownership that are unrelated to military service, such as self-defense or as a check against government tyranny).

And if Miller uneuivocally held that individuals qua individuals have no Second Amendment protection as the ACLU claims, then why is the Supreme Court even hearing D.C. vs. Heller right now? Hasn't the question already been decided? The answer, of course, is that Miller didn't decide anything. All Miller said was that it was not within judicial notice that a short-barreled shotgun was suitable for militia use.

The ACLU are not this stupid. These are very intelligent people. And yet they twist the meaning of Miller so that it comports with their anti-gun stance.

This is nice too:

Quote:
If indeed the Second Amendment provides an absolute, constitutional protection for the right to bear arms in order to preserve the power of the people to resist government tyranny, then it must allow individuals to possess bazookas, torpedoes, SCUD missiles and even nuclear warheads, for they, like handguns, rifles and M-16s, are arms. Moreover, it is hard to imagine any serious resistance to the military without such arms. Yet few, if any, would argue that the Second Amendment gives individuals the unlimited right to own any weapons they please. But as soon as we allow governmental regulation of any weapons, we have broken the dam of Constitutional protection. Once that dam is broken, we are not talking about whether the government can constitutionally restrict arms, but rather what constitutes a reasonable restriction.

Again, we have the "if there is an individual right to keep and bear arms, then such rights must be absolute" argument. This is not neutral. This is not reasoned. Again, the ACLU are not this stupid. Nobody is. But they take this untenable position because that is all they have. They lack historical and legal authority for their side of the gun argument, so they resort to their parade of horribles to try to scare the dumb shits of the world over to their side.

Note that the ACLU didn't file an amicus brief in Heller. I think that's extremely telling. These busy-bodies love to file anything in any case. But on Heller they were silent. Why? Because they don't want to be on record as saying a section of the Bill of Rights doesn't apply to the people.
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  #66  
Old March 27th, 2008, 08:16 AM
Mike_Rupp Mike_Rupp is offline
Mike Rupp
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I'll admit I'm completely clueless as to how the court rules on cases, but does historical evidence come into play at all?

A quick trip down history lane show that the writers of the bill of rights clearly thought that it is an individual right, not a collective one. Take a look at this quote:

"I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them."
George Mason - Co-author of the Second Amendment
during Virginia's Convention to Ratify the Constitution, 1788

That sums it up for me.
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  #67  
Old March 27th, 2008, 09:40 AM
greghirst greghirst is offline
Greg Hirst
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"The strongest reason for the people to keep and bear arms is, as a last resort, to protect themselves against the tyranny of government."

Thomas Jefferson

I don't think anyone who is a serious student of either history or the law can legitimately argue that any of the founders intended anything less than PERSONAL ownership of, and access to, firearms and thus INDIVIDUAL rights.
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  #68  
Old June 19th, 2008, 10:46 AM
johnlee johnlee is offline
John Lee
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Not as interesting as the Supreme Court's decision on the Second Amendment, but the Second Circuit handed down this gun case on 04/30/08:

http://online.wsj.com/public/resourc...ts/beretta.pdf

Check out the defendants/apellees in this case. The City of New York sued almost everyone. Companies like US Repeating Arms are named as defendants but others like Heckler & Koch Inc. are not. Weird.

Anyway, the Second Circuit upheld the Protection of Lawful Commerce in Arms Act.

For those of you unfamiliar with the PLCAA, it was a federal response to the flurry of lawsuits against gun manufacturers and dealers by the anti-gun people. The anti-gunners are very smart people. They face an uphill battle in illegalizing guns, so they use other routes to try to get guns effectively banned. A big tactic by them was trying to sue the gun manufacturers, ammunition manufacturers, and dealers out of business.

A common legal theory was strict products liability. Dirtbag shoots victim with a pistol and ammunition. The anti-gunners sue the pistol and ammunition manufacturers under a strict products liability theory. This is sleazy, but the anti-gunners are sleazy people.

City of New York v. Beretta involved a nuissance theory.

The PLCAA
prohibit[s] causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearms products or ammunition products by others when the product functioned as designed and intended.
In enacting the PLCAA, Congress found:
Businesses in the United States that are engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition products that have been shipped or transported in interstate or foreign commerce are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.
The Second Circuit upheld the PLCAA and dismissed the City of New York's lawsuit. This is hardly as compelling as the United States Supreme Court's ruling on the meaning of the Second Amendment, but it does make for interesting reading.
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  #69  
Old June 19th, 2008, 11:59 AM
JSQ JSQ is offline
Jack Quinlan
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I love the basis for NY's claim of public nuisance:
"The City claimed that the Firearms Suppliers market guns to legitimate buyers with the knowledge that those guns will be diverted through various mechanisms into illegal markets.

What a joke.
I can only assume that there is some sort of precedent for filing suit on such grounds, but I can't think of it. Maybe marketing cigarettes that you know will eventually be obtained by minors. The tobacco industry is probably the only manufacturing group I can think of that is more vilified than gun makers so I can see how some anti-tobacco lobby could hope for success with such a weak argument. To me this is all akin to suing L’eggs because their nylons might be used in a bank robbery. The fact that NY is acknowledging that the manufacturers are conducting legal sales seems to negate their liability argument from the get go. Not that I'm an attorney or anything.
I recognize that the PLCAA became law years after the suit was filed, but I can conceive of many arguments based in basic liability that would negate the claim without having to rely on a commerce act.

I also like the part about how the US intervened to defend the constitutionality of the PLCAA but without taking any position on the litigation. I realize why that statement is made, but the trial doesn't exist in a vacuum. It's like telling jurors to disregard testimony. It may be law, but it's not reality. Once they hear some shit, they are affected by it even if you tell them to wipe their own memory banks. When you're attacking commerce and government and the government comes into bitch slap you, commerce and the court takes notice. Especially when substantiating the validity of the PLCAA basically defeats NY's case in and of itself.

All of NY's arguments against the PLCAA are lame except for the objection based on the 10A. I can see the argument they are making here and understand New York's long standing protection of their sovereignty under Federalist principles, but then again, the court cites so much precedent regarding "commandeering" the states into Federal programs that NY's objection just ends up looking weak.

I also love the part of the ruling where the court basically tells NY to learn how to use a fucking dictionary.

The Katzmann is dissent is lame.
His position seems to be along of the lines, of:

"Hey guys, I thought we had agreed not to talk about any hot or controversial topics, especially ones that involve constitutionality? Don't you think how it would be easier, and a lot less trouble for everyone if we didn't have to wrestle with this examination and just defaulted to know-nothing status?"

Apparently Katzmann likes to be Mr. StatusQuo. Especially when faced with making a difficult decision:
"As a result, if possible, courts must interpret statues to avert constitutional questions, rather than to embrace them, as the majority does here.

Katzmann knows that the 10A states rights issue is the best argument so he tries to vilify Congress and their process for legislating "traditionally sensitive areas".

His fruit and gasoline analogy is silly too. Talk about failing to compare apples to apples.

He's so weak on citations he has to quote Catch 22.

The one thing I don't really understand about all of this is how NY and Katzmann argue that somehow 1A rights to the courts are being violated. First I thought Katzmann didn't like to tackle Constitutional issues, but that aside, aren't these proceedings satisfactory? Isn't it being heard?
I need some law clarification here.
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  #70  
Old June 19th, 2008, 03:28 PM
johnlee johnlee is offline
John Lee
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It's funny that you should mention the tobacco industry, because the same people who tried to sue and tax the tobacco industry out of business are the ones who tried to sue and tax the gun industry out of business. Make no mistake. The exact same people.

Same arguments too:

http://www.cnn.com/video/#/video/us/...nted.guns.kpnx

Children being drawn to the pink guns? This is a joke, right?

According to the anti-gunners, the AR15 should be illegal because it looks like an "assault weapon". It has a pistol grip. It has a bayonet lug. It has black furniture. It looks menacing.

Now the pink guns should be illegal because they don't look menacing enough.
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  #71  
Old June 23rd, 2008, 02:13 PM
thomaskimura thomaskimura is offline
Thomas Kimura
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Rumor has it that Scalia is writing the majority opinion for D.C. v. Heller.

Any day now
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  #72  
Old June 23rd, 2008, 02:36 PM
johnlee johnlee is offline
John Lee
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Holy shit.

Where did you hear that rumor?

If this rumor is true, then that would be kick ass. It takes a little while for this to happen, but somewhere in second-year law school, it dawns on the student what the outcome of a Supreme Court decision will be without even reading the opinion. He just has to read who authored the opinion and he knows what the outcome will be.

For example, if it's a Second Amendment decision and the opinion starts out with:

"Mr. Justice STEVENS delivered the opinion of the Court:

then that's not a good sign. If, however, the opinion opens with:

"Mr. Justice SCALIA delivered the opinion of the Court:"

then you know it will be a pro-gun decision.

If indeed Justice Scalia is writing the majority opinion, then it means we won. It also probably means that D.C. v. Heller will be a bomb. Scalia is not a consensus type of Judge. He doesn't hold any punches. He doesn't dilute the contents of an opinion to get at least four other judges to sign off on it. Scalia has been known to lose a majority vote because his draft opinions were too Armageddon for four other Justices to sign off on. But I'm hoping at least Chief Justice Roberts and Justices Scalia, Thomas, Alito, and Kennedy were able to agree on a very strong Second Amendment opinion.

Of course it could be that a majority of the court were unable to agree and Justice Scalia is merely writing a plurality opinion. I doubt this is the case in Heller because the legal questions presented in Heller are pretty straightforward. At least I hope it's not the case.

I'm not sure how much weight to give to this rumor about Scalia writing the Heller opinion, but it's getting me pumped up. I look forward to reading those magic words:

"Mr. Justice SCALIA delivered the opinion of the Court:"
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  #73  
Old June 23rd, 2008, 02:40 PM
johnlee johnlee is offline
John Lee
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Quote:
MR. DELLINGER: It's a reasonable regulation for two kinds of reasons. First, in order -- the amendment speaks of a well-regulated militia. Perhaps it's the case that having everybody have whatever gun they want of whatever kind would advance a well-regulated militia, but perhaps not. But, in any event --

JUSTICE SCALIA: It means "well trained," doesn't it?

MR. DELLINGER: When you -- when you have one --

JUSTICE SCALIA: Doesn't "well regulated" mean "well trained"? It doesn't mean "massively regulated." It means "well trained."

Oh man. Awesome.
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  #74  
Old June 23rd, 2008, 02:55 PM
thomaskimura thomaskimura is offline
Thomas Kimura
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The rumor has been popping up in what looks to be conservative-type webpages. I was looking at the NYTimes.com and it linked to some site. When I google DC v. Heller + Scalia it pops up frequently but not all over the place. Overall, these sites are probably not especially reliable.

The basis of the rumor is that Scalia is the only justice who has not written a decision for a case that was heard in March.

I apologize to everyone if this one doesn't turn out to be true; I got excited and kind of jumped the gun.
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  #75  
Old June 23rd, 2008, 03:07 PM
johnlee johnlee is offline
John Lee
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Your enthusiasm is shared. I hope it's Scalia and I'd very much like to believe it'll be Scalia's opinion. He is perfect for the pro-gun movement. His opinions are so clear and unequivocal that it would be hard for the anti-gunners to argue that Heller said X when it really said Y. His opinions are also very sound from a logical standpoint. They have no flaws in them that the liberals can jump on to discredit the opinion.

We'll see what happens.
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