7th Cir goes other way in Chicago case

Here's the link: http://www.ca7.uscourts.gov/tmp/O01FG1CS.pdf

Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.

Are these judges REALLY that STUPID?

Tiochfaidh ar la!

Can anyone tell me a better "origin of federalism?" than what I found here:

www.montreal2008.info/site/images/PAPERS/section3/RC%2028-%20Stein%20Turkewitsch%203.4.pdf

Michael Stein and Lisa Turkewitsch, The Concept of Multi-level Governance in Studies of Federalism; Paper Presented at the 2008 International Political Science Association (IPSA) International Conference “International Political Science: New Theoretical and Regional Perspectives,” Concordia University, Montréal, Québec, Canada May 2, 2008

Part I: Origin, Definitions, Evolution and Major Academic Criticisms of the Concept of Federalism

Origin of Federalism in Anglo-American Writings “Federalism” as an analytical construct in political science, like “multi-level governance”, has been defined in multifarious ways, particularly since World War II. It has also, like MLG, been given significantly different meanings in the Anglo-American and continental European academic worlds. The modern English-speaking concept of federalism is derived directly from the American Constitution of 1787 and The Federalist, which first appeared in the same year. It was originally viewed by the American Constitutional Fathers (notably Hamilton and Madison) and by nineteenth and early twentieth century writers such as Tocqueville, Bryce and Dicey, in both normative and descriptive terms as an institutional device designed to divide sovereignty and prevent the concentration of authority and power in a single decision-making locus. Its chief objective was to promote political pluralism and maximize liberty (Mogi 1931; Davis 1978; Whitaker 1983).

I though that the "right to carry" (i.e., the right to armed self-defense) was a human right of self-defense that existed simply because people or human beings since their existence (whether by creation or evolution).

Is it my impression that the judge simply and fraudulantly lied? (I'm not a lawyer and I don't even play one on TV. I'm just a litigious merchant seaman for freedom).

The url has changed. http://www.ca7.uscourts.gov/tmp/O01FG2SE.pdf

It's Posner's position that there was no right to be armed ("Englishmen did not have a right to carry guns around with them") in English common law. Since this case didn't deal with regulations on carrying weapons, but a prohibition against owning them in the home, I would agree that he's way off. But he's the judge and he's made his ruling.

I wouldn't get too worked up over it. He can say what he wants, but he knows he's going to be reversed by SCOTUS. His argument boils down to claiming that McDonald et al. are asking the 7th Circuit to overrule the Supreme Court, and since they aren't supposed to do that, he's kicking it upstairs so the SCOTUS can do it.

He would prefer that SCOTUS refuse to incorporate, yes, but that doesn't mean he can't read the tea leaves. Judging by Heller, incorporation is very likely.

Well, Posner is unmasked. This supposed pillar of legal reasoning let his own dislike for firearms triumph over what the 2nd and 14th Amendments clearly intended.

The three justices have decided the case by arguing their hands are tied by Supreme Court precedent.

It seems clear enough from their argument that each of them would prefer not to address the historical facts about the Second Amendment or the Fourteenth Amendment.

Their final observation innacurate as far as the age of Federalism and the American understanding of the right to arms. Madison based his Second Amendment related language directly on that of the Virginia Ratifying Convention. That language was an exact quote of the 1776 Virginia Declaration of Rights proposal with added langauge from Pennsylvania's 1776 Declaration and the words "keep and" added to the latter. The protections within 1776 written state bills of rigths, upon which the Second Amendment is based, most assuredly were older than Federalism that originated in 1787.

The Court should have cut off its opinion after saying "the Supreme Court told us to follow precedent even if the case is from the 1800s, so we will do that and let SCOTUS address incorporation." Their diatribe about self-defense and federalism shows that they don't understand natural rights or enlightenment philosophy. Self-defense is one of our most fundamental rights. It is much more than just a criminal defense. If a judge contemporary with the Founders had suggested that a state could ban or hamstring the right to self-defense in such a manner he would have been tarred and feathered and sent back to England.

This is the comment that disturbs me...

"That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule."

It echoes Obama's comment endorsing local control.

Funny how the libs only like local control when it suits them. If you want to talk about for example a reversal of roe v. wade on the other hand, they feel that federal control is necessary and proper. You can't have your cake and eat it too.

We don't need to incorporate the Second Amendment through the Fourteenth Amendment! The Second Amendment ALREADY applies to the States through the Supremacy Clause of Article VI, Clause 2.

See Stephen Gardbaum, THE "HORIZONTAL EFFECT" OF CONSTITUTIONAL RIGHTS, 102 Michigan Law Review (Dec. 2003) www.ssrn.com/abstract=437440

How soon will it be known if this will be appealed, and if it is, when would the Supremes decide if they will take it? Is it possible for them to reverse it on its face, without actually accepting it?

IN THE CONGRESSIONAL RECORD: JUNE 13, 1967, PAGE 15641.

The Fourteenth Amendment is Unconstitutional!

www.pacinlaw.org/pdf/sup/Congressional_Record_14th_Amend_1967.pdf

That extract from the Congressional Record by www.pacinlaw.org is NOT verbatim. I am comparing it to the Congressional Record (right now) at a university library.

About "Who's the boss? Judge or society?

For, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.

Sir William Blackstone, Blackstone's Commentaries on the Laws of England, Book I, Chp3, pg.205/6

Apparently, Blackstone is not taught in law school. Maybe because judges don't want to admit that WE THE PEOPLE are the boss and they are mere servants. Whenever WE THE PEOPLE decide something as a society, we override the judges EVERY TIME. When the state judges in Cali reviewed the SSM, they really had no authority because the people of California had spoken. According to Blackstone above, the people outrank the courts. Now had the case been brought in federal court, it might be a different matter.

As Blackstone says, Judges have no power except that delegated by society. We the People have been screwed, blued, and tatooed by judges. WE the People have been lied to about "Who's the Boss?" It's time we begin telling them to FO. In the 19th century the States quite often told the judiciary, including the SC, to FO regularly. For a bit more info, check out _Hamilton's Curse_ by DiLorenzo.

14th Amendment was unconstitutional because it created citizens where one cannot be a citizen, i.e. "of the United States". Can one be a citizen of the U.N.? Well, the U.S. is actually the original version of the U.N. with 50 nations (most call them states) as members. $1000 to the first person to find the US referred to as a nation in the Constitution. Can't do it. All references to the US as a "Nation" and the government as "national" were removed in 1787 at the urging of Mr. Ellsworth because, as he said, they were NOT forming a "nation". Why do people think the US is a "nation"? The big lie, brain-washing. The Pledge of Allegiance - used to destroy individual and state sovereignty.

Secondly, and I need to research this better, BUT I believe the southern States were denied suffrage in the Senate contrary to the Constitution's statement that no amendment shall be made that will deny equal suffrage in the senate. I suspect that since no power exists for Congress to deny suffrage and no amendment can be made, any denial of suffrage on the 14th would void the 14th. - Just a thought. Need to research.

There is a good paper on the web that I read 10-15 yrs ago about the law versus the predilections of the judges.

I suspect that We the People could decide that "bad behavior" for a judge was going against the will of the people since We the People have the final say, over Congress, the President, and the Judiciary. This is also noted in the Declaration of Independence - "alter or abolish" whenever We the People don't like the government.

Self-defense is not only a fundamental right, it is a requirement of service to our Lord. We are to protect our gift of life against those who would do us harm.

Don - While I stand by Rawle's view concerning the 2nd (and the BoR)for a myriad of reasons, I hadn't thought about the supremacy clause. It it my contention that the BoR was the best and correct place to enumerate the necessary requirements for "a republican form of government" which the feds MUST guarantee to each state. What better list than that of the BoR as the core of republican government!

Tiochfaidh ar la!

"Are these judges REALLY that STUPID?"

Yes.

REBUTTAL TO FWB:

I'm working on a theory that "Natural Law" of self-defense is sifted through the "Common Defense Clause" and the "More Perfect Union" Clause ot the Preamble to the Constitituion, throught the Supremacy Clause to the States. In that "state of nature" and if the "national government" and the states held true to the Constitution then there would have been no need for a Bill of Rights. But as the Founders knew about "The Nature of Government" with an unquenchable hunger for power they added the Bill of Rights.

Where the NRA and everyone else is on the bandwagon to incorporate the Second Amendment throught the Fourteenth Amendment I am taking a separate path, alone as no one so far has joined my effort for "National Open Carry Handgun" to enforce the Second Amendment through Comparative Constitutional Law, Human Rights Treaties, Natural Law, and the Supremacy Clause in order to restore the old constitutional norm of open carry wherever you went, beit intrastate or interstate, or even via inland waterways or on the high seas.

I always thought Posner was a dumb-ass because of his views on "efficient breach" in contracts. Now I have a separate basis for asserting that he is a dumb-ass.

Blackstone Online here:

http://ebooks.adelaide.edu.au/b/blackstone/william/comment/book1.3.html

Of greater concern to me is the passage discussing use of handguns in self-defense in the home:

"Suppose a state were to decide that people cornered in their homes must surrender rather than fight back—in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for
self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens.

"Our hypothetical is not as farfetched as it sounds. Self defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force
when retreat is not possible.

"An obligation to avoid lethal force in self-defense might imply an obligation to use
pepper spray rather than handguns. A modification of the self-defense defense may or may not be in the best interest of public safety but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people’s hands since 1868 [date of the 14th Amendment]."

Overall, the opinion seems rational, if not slightly disingenuous. It's pretty clear that judges, just like any other rational, thinking human being, can come up with very reasonable-sounding arguments to support their preferred conclusion. It's just that Circuit Court judges tend to be better at presenting their argument as if it is the only result possible or required by applicable law.

I say this after having spent 14 hours yesterday preparing motions and briefs in support of motions for filing with a U.S. District Court today...(not a gun case, though).

Don't worry about this opinion. Posner and Easterbrook said how they were going to rule in oral arguments and told Alan Gura that it doesn't matter because the Supreme Court will take it. This case will be brought forward to SCOTUS in the fall or spring term. There is a split in the Circuits with the 7th and 2nd voting against incorporation and the 9th in favor of it. SCOTUS will obviously accept it.

Even better, because Sotomayor wrote the 2nd Circuit case denying incorporation, she will have to recuse herself in the Supreme Court case. This could be one of the biggest cases in the century if the Court incorporates through the P or I clause overturning the Slaughterhouse cases rather than the 14th Amendment. Either way the 2nd Amendment will be incorporated in the next year.

Let's look at this decision another way.

How would 3 "conservative" judges ensure an immediate review of Slaughter-House by SCOTUS?

Such that if SH is overturned then the itemized BoR amendment incorporation fight is over.

They did us a favor by issuing such a quick ruling.

These judges actually believe that it's okay to make self-defense illegal. This is one of the most frightening opinions I've read in a while. I sure do hope the Supreme Court gets to review this decision.

SEE ALSO: BLACKSTONE, BOOK 1, CHAPTER 1: OF THE ABSOLUTE RIGHTS OF INDIVIDUALS

http://ebooks.adelaide.edu.au/b/blackstone/william/comment/book1.1.html

I'm not sure what the Judges' motives were, but they sure gave the Federal DOJ a real reason NOT to fight TOO hard against incorporation. If the SC accepted their logic, about 90% of all federal law and regulations made over the last 50 years would be out the window.

>These judges actually believe that it's okay to make self-defense illegal. This is one of the most frightening opinions I've read in a while.

I think any State that makes self-defense illegal would rapidly lose its status as a legitimate government. At least here in America, if Americans are still Americans. The 7th Circuit panel seems to have thrown the gauntlet in the face of the people.

I think there are 36 states which have some form of the "castle doctrine" in their laws now, and there are likely more to follow. That is enough to call for a constitutional convention. In a perverse sort of way, I hope it comes to that. These elitist bastards need to be brought to heel when it comes to abrogating the natural human right to life.

Also check out the books at:

Constitution Society

Tiochfaidh ar la!

Well, recall a couple years ago when the U.N. panel on human rights or whatever it was calling itself issued the big report saying that there was no legitimate individual right to self-defense, and it existed only so far as the government allowed it.

And look at what's going on in England - pretty much abrogating any "so-called" right to self-defense. You have the right to run like hell out of your own house, or cower in a closet and blow your police whistle or something. Just make sure you don't do a thing to harm a hair on the burgler's head, or else you'll be charged and the poor widdle burgler will be encouraged to file a state-funded lawsuit against you.

The US was/is an entirely new concept of government. Most folks just can't grasp things when in the old world and the rest of the world, all power flows from the government and the people are the pawns of the powerful. Ours is/was the sole governmental system wherein it was recognized that a Creator endowed upon his creation, as an inviolable individual, certain inalienable Rights. And that those individuals associated with each other by transferring some fraction of their autonomy to "the system".

I teach it this way.

Be you evolutionist or creationist, first came the individual. That individual held all sovereignty/all authority. Next individuals banded together as a "family", transferring some necessary but small portion of authority from the individual to the family while retaining the bulk of the individual's authority. Next "families" grouped together to form "societies", transferring a portion of the authority of the "family", which is only a small portion of the individual's authority, to the "society". Lastly, "societies" band together to form governments by transferring a portion of the societies' authority, an authority less than that of the "family" which was less than that retained by the individual. Thus governments have the smallest amount of authority of all associations, and only that authority explicitly delegated by the members of the group. The individual is always paramount, having retained the majority of authority.

Realize that Bill's discussion above about Enlgand (and the same is true for Canada) is one of the primary driving forces for the immigration of our ancestors to these shores. Our ancestors didn't like what they did. Our ancestors were rebels. Our ancestors were willing to risk it all to establish what they desired. Were there issues? Of course but those issues were worked on and corrected whereever possible.

"I believe that all government is evil, and that trying to improve it is largely a waste of time."
- H. L. Mencken

Tír gan teanga, tír gan anam

Tiochfaidh ar la!