[lbo-talk] 2d Amendment/Rule of Law (Was: The curse of literacy)

jared unended at houston.rr.com
Mon Jul 19 16:29:37 PDT 2004


Andie wrote:

"In addition, also more important than legislative history, is the history of interpetation -- precedent -- which is also law, unlike legislative history, In the almost 70 years since Miller, not one appeals court has deviated a hair from the collective rights interpretation."

Not quite true anymore. Leave it to the Fifth Circuit (Texas, Mississippi, Louisiana):

"We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller."--United States v. Emerson, Oct. 16, 2001.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=5th&navby=case&no =9910331cr0

Certiorari was denied. The court went on to state that even though the 2nd Amendment provides the individual right to keep and bear arms, that right is "subject to...limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." So the regulations were "reasonable," and Emerson remained convicted. I'm pretty sure the Court knew that had it reversed Emerson's conviction, the Supreme Court would have accepted cert. This way, they got the precedent on the books without having it immediately reversed.

--Jared

-----Original Message----- From: andie nachgeborenen [mailto:andie_nachgeborenen at yahoo.com] Sent: Monday, July 19, 2004 7:50 AM To: lbo-talk at lbo-talk.org Subject: Re: [lbo-talk] 2d Amendment/Rule of Law (Was: The curse of literacy)

I don't know from the legislative history. But when it comes to law, if the text is clear, I'm sort of a textualist. Meaning that the law is what the text of the law says. The legislative history is not law. It's not even commentray. Here the text if pretty clear. If the Framers meant to support the individual rights interpretation, they shoulda said so.

As for legislative history, to take as analogy, we know as well pretty much beyond a any doubt that the framers of the equal protection clause did not support, and i=did not intent the 14A to support, integration in schools or public accomomdations. But the text they would didn't say that, and though not crytal clear, is best interpreted as saying the opposition, that the equal ptotection of the laws applies throughout.

In addition, also more important than legislative history, is the history of interpetation -- precedent -- which is also law, unlike legislative history, In the almost 70 years since Miller, not one appeals court has deviated a hair from the collective rights interpretation.

So whiled the legislative history is inheresting history, it's not law and it's not legally relevant unless you need it to help you inderstand text that is cloudy because of open-ended drafted and lack of interpretation. We have neither here.

jks

--- Doug Henwood <dhenwood at panix.com> wrote:
> andie nachgeborenen wrote:
>
> >As it presently interpreted by every federal
> Appeals
> >Court that has weighed in, under the authority of
> US
> >v. Miller (S.Ct 1937), the 2d Amendment does not
> give
> >private individuals a right to bear arms, but only
> in
> >the context of a "well-regulated militia." The
> courts
> >regularly dismiss law suits brought by right wing
> gun
> >nuts arguing the contrary.
>
> Dan Lazare had a piece in Harper's some years ago
> arguing that based
> on the legislative history, the pro-gun forces were
> right about the
> 2A. It's reprinted here:
>
<http://www.findarticles.com/p/articles/mi_m1111/is_1793_299/ai_55881915
>.
>

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