The 9th Circuit gets one right

3 judge panel strikes down magazine ban

Amazingly, 3 judges in the 9th circuit understand that Constitutional rights can’t be voted away.

I hope they appeal, that will force SCOTUS to face the issue.

17 thoughts on “The 9th Circuit gets one right

  1. While I agree that a 10-round mag does not really constitute an “extended” mag, 25 and 30 round mags do.

    But I don’t think Bercerra is going to challenge it as the 9th explained the decision well and it is a SCOTUS loser for gun reform causes.

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  2. To understand the Second Amendment, you must understand a little of the history that was happening at the time it was written.

    In 1791, when the Second Amendment was ratified, the Revolutionary War had been over for 8 years.  
    The people had been living under The Articles of Confederation, drawn up before the war.  The Articles of Confederation established a “league” among the 13 independent states and gave the country the legitimacy it needed to conduct business with foreign countries.  But, the “league” was very loosely governed.  The country had had 10 Presidents in 8 years and none of them had the power to get things done.  

    Then, as today, members of Congress didn’t agree on much but, one thing everyone agreed on was that nothing was getting done.  Something had to change.

    In 1789, the Constitution came into effect.  It provided both a centralized government AND a confederation of sovereign states.   Unlike any country that had ever existed before, the federal government would have enough power to get things done but, the states reserved powers of their own.

    Still, this was not enough for the anti-federalists.

    The anti-federalists worried that the office of the President might somehow evolve into a monarchy.   Many feared they would lose individual rights.  The Constitution needed to be amended to spell out rights that could not be taken away. For the South, the Second Amendment in the Bill of Rights was particularly important.  

    If the Constitution gave the federal government the right to raise and supervise a militia, the federal militias could, one day, subsume state militias and change them from slavery-enforcing institutions into something that could set slaves free.

    We only need to look at the differences between the first draft and the final draft of the Second Amendment to know their overwhelming concern was to protect state militias.

    MADISON’S FIRST DRAFT OF THE SECOND AMENDMENT: 
    The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

    FINAL DRAFT: 
    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    They were not concerned about conscientious objectors.  They were concerned about whether the “country” or the “state” controlled the militias.

    So, how were state militias used?

    Shay’s Rebellion, in Massachusetts, was put down by the state militia 4 years before the Second Amendment was written.

    The Whiskey Rebellion was put down in Pennsylvania by the George Washington and the national militia 3 years after the Second Amendment was written.

    The first rebellion was put down by a state militia before the Second Amendment and the second rebellion was put down by a national militia after the Second Amendment.  Why did the Second Amendment need to be there at all?

    There is really evidence for only one conclusion as to why STATE militias were so important they needed to be written into the Bill of Rights.

    They were Slave Patrols.

    In the South, militias were used as Slave Patrols. They were regulated by the states and the federal government had no control over them. Slave Patrols had a free hand to do anything they wanted to do…. and it was all legal.

    Slave Patrols were established in South Carolina nearly 90 years before the Revolutionary War.

    In Georgia, all plantation owners and their white male employees were required to be members of the militia.  Their job was NOT to put down tax rebellions or discourage moonshiners.  Their job was to make monthly inspections of slave quarters and apprehend any slaves found outside the plantation where they did not belong.  

    Members of a slave patrol were authorized to give any slave 20 lashes for being outside the plantation but, if an ambitious patroller got carried away, the fact he was a member of a legal state authority kept him from the wrath of a slave owner who might be upset over “property damage.”

    In Virginia, all free white men, between the ages of 18 and 45 were subject to being called up for Slave Patrol duty.  This included ministers and doctors.  The only exceptions were judges, legislators, and students.

    There are no records of anyone objecting to serving on a Slave Patrol, although some may have.  There were several advantages to being a slave patroller.

    If you were a slave owner, of course, there was the benefit of protecting your property while being totally unaccountable for any property damage you might do to the property of others. But, even if you weren’t a slave owner, there was still a major advantage to being on a Slave Patrol.  You were exempt from federal taxes for all the entire time you served on the patrol.

    In the years before the IRS, the government did taxes quite differently. They spent money all year and, at the end of the year, they sat down, added up the cost of running the government for the year, counted the names of eligible taxpayers on the “tithable lists,”  divided the amount equally, and sent out bills.  

    Every white male in the family was taxed as “one tithable unit.”  Also, every slave, whether male or female, was taxed as “one tithable unit.”  White females weren’t considered valuable enough to tax.

    Many of these original tithable lists are still available today at the Library of Virginia.  They have long been of interest to genealogists but, lately, they are becoming of more interest because they are evidence of Slave Patrols… a thing largely “overlooked” in our history books.

    The Second Amendment was written to protect Slave Patrols in the south.  It’s a well documented fact. That’s where it came from.

    So, after the Civil War, with Slave Patrols gone, what happened to the Second Amendment?

    The first test came in 1875, about 10 years after the Civil War.  It began on Easter Sunday in 1873, in Colfax, Louisiana.  The Colfax Massacre is a whole book unto itself, many details of which are still unknown.  But, what is known is the resulting legal ramifications. Several white men were arrested and charged with “conspiring to prevent black men from exercising their right to bear arms.”  It resulted in the Supreme Court case known as the United States v. Cruikshank (1875). It essentially said, the Constitution did not guarantee blacks the right to bear arms.  Citizens must look to local legislation when other citizens deprive them of such rights. The Second Amendment clearly did not protect an individual’s right to bear arms.  If a state wanted to take guns away from anyone, for any reason, the federal government was not going to step in.

    The next test of the Second Amendment was Presser v. Illinois (1886). Herman Presser headed a German-American paramilitary shooting organization and was arrested for leading a parade group of 400 men, with military weapons, with the declared intention to fight, through the streets of Chicago. The Court upheld the state’s authority to regulate militias but also added “citizens had no right to create their own militias or to own weapons for semi-military purposes.”

    The next interesting case was Miller v. Texas, 153 (1894). Franklin Miller was convicted and sentenced to be executed for shooting a police officer to death with an illegally carried handgun in violation of Texas law.
    Miller sought to have his conviction overturned, claiming his Second Amendment rights were violated.
    Once again, the Supreme Court ruled that the Second Amendment does not apply to state laws.  
    In Robertson v. Baldwin, (1897), the Supreme Court ruled that just as the right of freedom of speech is not infringed by prohibiting libel, the right to bear arms is not infringed by regulating concealed arms.

    The National Firearms Act of 1934 was passed in response to the public outcry over the famous St. Valentine’s Day Massacre.  It required certain types of weapons, such as sawed off shotguns to be registered. The Supreme Court ruled that the federal government and the states could limit any weapon types not having a “reasonable relationship to the preservation or efficiency of a well regulated militia.” Gun rights advocates claim that the Court in Miller ruled that the Second Amendment protected the right to keep arms that are part of “ordinary military equipment.”  (That, however, was already decided in Presser v Illinois.)

    For about 70 years, the courts were relatively silent on gun rights… until the Bush administration, sanctioned by the NRA, came into power and appointed the John Roberts Supreme Court. Then we got Heller.

    District of Columbia v. Heller (2008) was a landmark case.  In a narrow 5-4 decision, FOR THE FIRST TIME IN THE HISTORY OF THE COUNTRY, the Second Amendment was interpreted as protecting an individual’s right to keep and bear arms. It only included federal enclaves, but it was only the beginning.

    McDonald v Chicago (2010) was the NRA’s proudest moment.  It essentially said, neither federal nor state nor local governments could prevent an individual from keeping and bearing a firearm.

    And a “well regulated militia” was thus twisted into “a well-armed, unregulated populace.” 

    What started as an effort to control slaves ended in school shootings and private militias such as the Sovereign Citizens militia which blew up the Murrah Federal Building in Oklahoma and killed 168 people.  

    Einstein said, “Three great forces rule the world:  stupidity, fear, and greed.”  Not necessarily in that order.

    Greed, fear, and stupidity is where the Second Amendment came from and this is where we still are.

    Karma smiles. 

    Liked by 1 person

    1. That is a very lengthy non-sequitur.

      From Scalia’s opinion in Heller “The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose.”

      Heller decision

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      1. And you do not think it odd that in 217 years, Scalia was the first to see it that way? The Second Amendment was written with the intent of preserving slave patrols. Its evil intent took over two centuries to rebound onto today’s racist society, and Antonin Scalia was the perfect man to make it happen. Again… Karma smiles.

        Liked by 1 person

        1. The idea that the 2nd Amendment is about slave patrols is conspiracy theory nonsense.

          The framers of the Constitution were well aware that governments tended to grow in power until they became oppressive, and that democracies could be every bit as oppressive as dictatorships. The 2nd Amendment was the guarantee of the ideal expressed in the Declaration of Independence, of government by the consent of the governed. Only armed citizens are capable of withdrawing their consent.

          Slave patrols were the farthest things from their minds, what they feared was being made slaves of their neighbors by way of democracy.

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          1. There has been much actual academic research to prove you are wrong. There are many dissertations and books available but I recommend “Slave Patrols: Law and Violence in Virginia and the Carolinas (Harvard Historical Studies) by Sally E. Hadden.

            Liked by 1 person

          2. SCOTUS agrees with me.

            And keep in mind that many of the most ardent advocates of the 2nd Amendment were from Northern states which had no need for slave patrols.

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  3. Would that be the United States v. Cruikshank (1875) SCOTUS that ruled the Second Amendment clearly did not protect an individual’s right to bear arms? Or the Presser v. Illinois (1886) SCOTUS that ruled citizens have no right to create their own militias or to own weapons for semi-military purposes? Or the Miller v. Texas, 153 (1894) SCOTUS that ruled the Second Amendment does not apply to state laws? Or the Robertson v. Baldwin, (1897) SCOTUS that states, just as the right of freedom of speech is not infringed by prohibiting libel, the right to bear arms is not infringed by regulating concealed arms? It wasn’t until George W. Bush stacked SCOTUS with judges more friendly to the NRA than the Constitution that Columbia v. Heller (2008) was ruled upon based on grammar rather than the intent of the Constitution. The SCOTUS has never agreed nor disagreed with you that the Second Amendment was placed into the Constitution by slave states in order to protect slave patrols. It was never ruled upon it because it has never been in question. It’s just a historical fact that is conveniently overlooked by people who suffer their own prejudices.

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        1. Again, some of the staunchest advocates of the 2nd Amendment, like Samuel Adams, were from non-slave states.

          The idea that the primary justification for the 2nd Amendment was to protect slave patrols is just plain silly. There is less support for that argument than for the birther movement. It is a fairly new conspiracy theory, I can’t find any reference to it prior to 2010.

          On the contrary, the racist roots of gun control are well documented, beginning with warnings from Frederick Douglas in 1867

          The Hill Racist roots of gun control

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        1. Really? What do you think in that TV show snippet refutes anything in the Heller decision?

          Aside from which, the clip is ridiculous. There is no 9mm firearm that can fire that many rounds in 30 seconds without overheating.

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          1. Really? Please show me a cite of a full automatic firearm being used in a multiple victim shooting.

            For that matter, show me a 9mm full auto 9mm firearm that you can fire in full auto mode for 30 seconds.

            Rate of fire does not translate into actual use.

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