Thursday, August 11, 2011

Historic Document fun!

This is Sandidge v. United States, 520 A.2d 1057 (D.C. 1987), the case that Judge Silberman decided was incorrect for whatever reason. I believe that Silberman's reason was that Dred Scot v Sandford,60 U.S. (19 How.) 393 (1857), a case relating to a fugitive slave which determined that said slave, as property did not have rights, was sufficient to overturn this judgement.

Anyway, read it and enjoy.

My question is was Silberman's reasoning sufficient for violating stare decisis? Given that the interpretation given to Miller by courts prior to the Emerson decision was pretty much consistent with this, was Scalia's reinterpretation ultra vires without the Constitution being Amended? What is the remedy for the Supreme Court acting ultra vires?

Additionally, since it is pretty much a historic fact that the Second Amendment refers to FEDERAL powers under Article I, Section 8 Clause 16, not any of those given to the states. That means that McDonald so out of wack as to be capable of being ignored? That truly requires the Constitution to be amended for it to be a valid decision.

Personally, I believe in stare decisis and the rule of law. But what is the remedy for the US Supreme Court acting ultra vires in its decisions?

Sandidge v. United States, 520 A.2d 1057 (D.C. 1987)
Cite as: 520 A.2d 1057 Can be found here

Lee A. SANDIDGE, Appellant,
No. 84-1045.
District of Columbia Court of Appeals.
Argued Dec. 11, 1986.
Decided Feb. 11, 1987.

Defendant was convicted by jury in the District of Columbia Superior Court, Ronald P. Wertheim, J., of carrying pistol without license, possession of unregistered firearm, and unlawful possession of ammunition, and he appealed. The Court of Appeals, Ferren, J., held that District of Columbia firearms statutes did not violate defendant's constitutional right to keep and bear arms.

Nebeker, J., concurred and filed opinion.

*1057 Elaine Mittleman, Washington, D.C., appointed by the court, for appellant.
Maria Cassalia, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and
Michael W. Farrell, J. Edward Agee, and Donald Allison, Asst. U.S. Attys., Washington,
D.C., were on the brief, for appellee.
William J. Olson, Washington, D.C., filed an amicus curiae brief for The Center for
Judicial Studies and Gun Owners Foundation.
Dan M. Peterson was on the brief for the amici curiae.

Before NEBEKER, FERREN, and ROGERS, Associate Judges.

FERREN, Associate Judge:

After a jury trial, appellant was convicted of carrying a pistol without a license, D.C.Code ' 22-3204 (1981), possession of an unregistered firearm, id. ' 6-2311, and unlawful possession of ammunition, id. ' 6-2361. The trial court sentenced him to one to ten years imprisonment, then suspended the sentence and placed appellant on probation for two years. Appellant also was fined $150. Appellant's sole contention is that the District of Columbia firearms statutes violate his constitutional right to "keep and bear Arms." U.S. CONST. amend. II. [FN1] In previous decisions upholding firearms statutes in the District of Columbia against constitutional challenges, we have not addressed second amendment concerns. Williams v. United *1058 States, 237 A.2d 539, 540 (D.C.1968) (court will not consider second amendment challenge raised for the first time on appeal);
Scott v. United States, 243 A.2d 54 (D.C.1968) (holding that statute is not void for
vagueness); McIntosh v. Washington, 395 A.2d 744, 754-57 (D.C.1978) (ruling against appellant who raised defenses based on due process, equal protection, vagueness, and the burdening of interstate commerce); Fesjian v. Jefferson, 399 A.2d 861 (D.C.1979) (denying equal protection and takings challenges). We now hold that D.C.Code '' 6-2311, 6-2361, and 22-3204 (1981) do not violate the second amendment. We affirm appellant's convictions.

We agree with numerous other courts that "the Second Amendment guarantees a collective rather than an individual right." United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976); accord Stevens v. United States, 440 F.2d 144, 149 (6th Cir.1971); United States v. Kozerski, 518 F.Supp. 1082, 1090 (D.N.H.1981), aff'd mem., 740 F.2d 952 (1st Cir.), cert. denied, 469 U.S. 842, 105 S.Ct. 147, 83 L.Ed.2d 86 (1984); Annot. 37 A.L.R.Fed. 696, 706 (1978) (citing cases). That is to say, it protects a state's right to raise and regulate a militia by prohibiting Congress from enacting legislation that will interfere with that right. The second amendment says nothing that would prohibit a state (or the legislature for the District of Columbia) from restricting the use or possession of weapons in derogation of the government's own right to enroll a body of militiamen "bearing arms supplied by themselves" as in bygone days. United States v. Miller, 307 U.S. 174, 179, 59 S.Ct. 816, 818, 83 L.Ed. 1206 (1939). In sum, "[t]he right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights the people may have depend upon local legislation...." Cases v. United States, 131 F.2d 916, 921 (1st Cir.1942), cert. denied, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943).

This is not a case where Congress, wearing a federal hat, has used the criminal law to undercut rights granted elsewhere in the District of Columbia Code by the Council of the District of Columbia or by Congress itself, acting as a local legislature. Indeed, there is no local legislation granting the right to bear unregistered firearms in the District of Columbia. To the contrary, the statutory provisions for an "enrolled militia," D.C.Code '' 39-101 through 39-105 (1981), do not refer to arms, and the provisions for organizing a "portion of the enrolled militia," id. ' 39-105, into a volunteer "National Guard of the District of Columbia," id. ' 39-106, make clear that the arms, as well as the uniforms and equipment, shall be furnished by the government, id. ' 39-201, not by the individuals themselves. Accordingly, assuming the second amendment applies to the District of Columbia, we hold it affords appellant no protection whatsoever since the congressionally approved criminal law does not interfere with any government-created right to keep and bear arms.

Appellant's reliance on United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), is misplaced. In Miller, the Supreme Court held that the National Firearms Act of 1934 did not violate the second amendment:

In the absence of any evidence tending to show that possession or use of a
"shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

307 U.S. at 178, 59 S.Ct. at 818. We reject appellant's contention that Miller stands for the proposition that Congress may regulate only those classes of weapons which have no relationship to the militia. The Supreme Court "did not intend to formulate a general rule in Miller, but merely dealt with the facts of that case." Warin, 530 F.2d at 106 (citing Cases, 131 F.2d at 922). Given the destructive capabilities of modern weaponry, it is inconceivable and *1059 irrational to suggest, as the logic of appellant's argument does, that Congress may only regulate weapons which have no possible relationship to the common defense today "such as a flintlock musket or a matchlock harquebus." [FN2] Id.

The purpose of the second amendment is "to preserve the effectiveness and assure the continuation of the state militia." United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978). Appellant cannot show that possession of a handgun by an individual bears any relationship to the District of Columbia's desire and ability to preserve a well regulated militia. See D.C.Code '' 39-106, - 201 (1981) (provides for organized militia, called the National Guard, to be armed by government); Miller, 307 U.S. at 178, 59 S.Ct. at 818; Warin, 530 F.2d at 106 (possession of submachine gun by individual has no relationship to preservation or efficiency of a well regulated militia).


NEBEKER, Associate Judge, concurring:

On the assumption which we make that the second amendment applies at all to the
District of Columbia, I concur in the opinion of the court. I write separately to state my conclusion that the second amendment does not apply to the seat of national government. This amendment is to ensure "the security of a free State." State militias were essential to that end--hence, the amendment. Nothing suggests that the founders were concerned about "free territories," "free protectorates" or a "free Seat of Government of the United States." See U.S. Const. art. I, ' 8, cl. 17. Indeed clause 17 gives to Congress exclusive legislative power in all cases over such "District." It may fairly be said that a federal militia is available in such places. Therefore, whatever may be said for the second amendment and its reach within the several states, I conclude first that it does not apply to the Seat of Government of the United States.

FN1. The second amendment to the Constitution provides: "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."

FN2. Appellant's argument that the second amendment guarantees an
individual the right to bear only those weapons that one person can operate
does not supply a meaningful limitation. That interpretation would still put
lethal weapons such as high powered rifles, machine guns, and even some
antitank weapons beyond the scope of legislative control. See Cannon
Control, Washington Post, Dec. 19, 1986, at A20, col. 1. It is
inconceivable that the Supreme Court intended in Miller to recognize the
right of unrestricted access to such weapons.


  1. What we seem to be dancing around is that it is possible for the Supreme Court to make a decision which is wrong, and which has to be carefully undone later.

    Like Dredd Scott.

    As I watch this SCOTUS in action, including Scalia, and Scalito, and the idiot they don't let talk or write much, Clarence Thomas, we're going to be looking at a lot of having to violate stare decis (undoing the SCOTUS precedent) PRECISELY because they are responsible for right wing nut judicial activism / ultra vires that grotesquely over reaches the boundaries of law, and wrongly exceeds their judicial authority in doing so.

    I still like defining ultra vires as a social disease, LOL...

  2. Yes, SCOTUS has been severely infected with ultra vires and needs to be slapped down badly.

    BTW, Jim ever think that those five Justices ARE WRONG.

    As I said, the old argumentum ad populem fallacy.

  3. Do I think the Supreme Court is ever wrong? Sure I do. Does it matter what I think - nope it will still be the law until the Court rules otherwise.

  4. Yes but Jim the difference between what you think, and what someone with a better understanding of the law is, don't really carry the same weight or importance. There will sooner or later, be similar corrections, although hopefully not through the means that rendered the awful Dredd Scott decision moot.

  5. You betcha, Jimbo, the Supreme Court Fucks up big time.

    It's called DC v.Heller and McDonald v. Chicago.

    Scalia has also been criticised for Bush v.Gore as well.

    It seems that all you need to do to become a member of the Supreme Court of the US these days is to be a political hack with a clean background--e.g., Chief Justice Roberts and Justice Alito.

    BTW, trivia question for you, U.S. v. Rybar,103 F.3d 273 (3d Cir. 1996) of which Justice Scalito was a member, addressed the Second Amendment issue--He followed the Collective right interpretation.

    True or False?

  6. "Yes but Jim the difference between what you think, and what someone with a better understanding of the law is, don't really carry the same weight or importance."

    As far a Supreme Court decisions go, my opinion carries just as much weight as Laci's or yours. Until one or both of you are Supreme Court Justices it will remain that way too. I don't care how many cases Laci can site as to why the Court was wrong. Until another Court rules otherwise or the Legislature passes a law to change something then what the Court has ruled is law. You may think it is wrong, you may even be right, but you don't have any say in the matter.

  7. I didn't claim to have a 'say in the matter' Jim.

    I simply made the two points, that not all discussion is equally well informed, and therefore merits different consideration.

    And I made the point that in the past when a bad Supreme Court decision was overturned, or rendered moot, that discussions like this, based on knowledge, were better predictors of that than....oh, say ignorance, or less knowledge.

  8. pay close attentionAugust 13, 2011 at 8:31 AM

    As I watch this SCOTUS in action, including Scalia, and Scalito, and the idiot they don't let talk or write much, Clarence Thomas

    Mighty white of you DG....

    Wow they all seem to have problems like that Alzheimer-whore that falls asleep all the time Ruth Bader Ginsburg.....

  9. Doesn't "collective right" mean the whole thing is bullshit?

    That's what I believe. And I never understood the gun-rights folk's over-reliance on the 2A. It's like saying the Constitution says I have the right to own a microwave. Aren't the pro-gun guys the same ones who keep saying the gun is just an inanimate object, or a tool like any other?