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Amicus brief in NYSRPA v. NYC
Online at the Supreme Court's website here.
The underlying strategy: (1) Do not worry about winning the case. It was won the moment the Court took review. It's an uncommonly silly and useless law. The Court didn't take review to strike it down, but because it wanted to give sorely-needed guidance to the lower courts. (2) Offer suggestions for what that might be. (3) Give flanking supporter to petitioner's main brief, which strict scrutiny is the right standard, by arguing that the standard below was clearly the wrong standard.
Here's another to which I gave aid. Its strategic purpose: the Heller dissenters took the position that the 2A is militia-centric. The 2A's militia clause sets out its purpose, which was to protect the militia as a system, not to protect individual rights.
The brief's argument: the 2A has two clauses because it had two independent purposes. The militia clause appealed to thinkers who were classical republicans, to whom the militia system seemed essential, and who were more concerned with stability and security than with individual rights. The right to bear arms appealed to thinkers who were Jeffersonian, and concerned with individual rights. The two were not inconsistent, so why not insert both and please everyone? To the extent that we can compare the importance of the two, the individual right to arms was dominant over the militia guarantee even in 1788-89, became even more so as the universal militia faded after the War of 1812, and had entirely vanished by the time of the 14th Amendment in 1866-68. The same Congress that passed out the 14th Amendment voted to disband the southern militias, but refrained from disarming their members because of Second Amendment concerns!
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Some folks read the 2nd much too narrow. A free State might apply to a body-politic such as what we call a state but more appropriately a well regulated militia is necessary to maintain a free state, as in state of being, to maintain freedom of the people. Most folks are just not well enough versed in language and grammar to grasp the breadth or narrowness of a clause.
Another clause is the necessary and proper restriction on the laws that Congress can make. One who has a proper grasp of English sentence structure and grammar recognizes immediately that the inclusion of the words "necessary and proper" restricts the breadth of Congress' power. A broad writing would have simply given Congress the power to make all laws for carrying into execution the foregoing powers, etc. Most judges aren't that bright so we end up with a mess.
FWB: 'A free State might apply to a body-politic'
'A free State' might also apply to a condition of life for an individual or familiy, a State of freedom from intrusion.
I am bothered by the minimization of the militia clause.
The primary purpose of the Second Amendment is to protect the right of individuals to own guns which they can use to deter tyranny by serving in a local militia.
The primary purpose is not to have a pistol to shoot robbers in your home (though that is protected as well).
Americans have the right to own militia weapons- weapons of war... the exact sort politicians are so eager to ban.
"Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."
-Tench Coxe
Note that there is a semicolon after the religion clause. That simple punctuation mark tells one that the next clause is independent of the prior clause.
One can find proper important punctuation throughout the document.
Note that in the 4th the separator is a comma telling us that the unreasonable search clause is dependent upon the warrant clause. Thus no search without a warrant is reasonable.
States got away with their searches because the supreme court in 1833 decided none of the Bill of Rights bond the states.
Much 4th jurisprudence today is still incorrect because the 4th is not applied word for word, punctuation for punctuation. If it were all searches would require a warrant, with a statement of probable cause, following proper affirmation and all warrants would specify exactly what was being searched, who was to be searched and what was to be seized. For example, on a computer system the warrant should be required to specify what files "particularly" are to be searched NOT some general statement and all files not listed in the particulars should be off limits.
Yes!
The first amendment mentions freedom of speech, freedom of religion, and the right to freely assemble. That doesn't mean that people only have the right to speak and assemble for religious purposes.
The 2nd amendment reserves the right to keep and bear arms to individual persons, while also affirming the authority of free states to form and arm militias. These two things are not mutually exclusive, and doesn't give the state any power to restrict individually owned arms. This is reinforced by the 10th amendment, which was also passed as a part of the Bill of Rights.
The tenth amendment:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, OR to the people."