Tuesday, August 26, 2014

Why Presser v. Illinois is the progunner's worst nightmare.

Of course, Scalia dismissed it in his exposition of mendacity called District of Columbia v. Heller, 554 U.S. 570 (2008), but he also dismissed such pearls as:
With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

To make this view of the case still more clear, we may remark, that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides, "that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive
Since they "weren't helpful".

That's putting it mildly--they totally contradict your position.

After all, why not dismiss anything which shows that what you are saying is total bollocks?

The American people are too happily ignorant to notice anyway.


Presser basically is making the same tired argument we hear over and over about being part of an unorganised militia, except that term didn't have actual currency back then in US Federal law.  The court tossed that argument since Presser wasn't part of the enrolled militia.

Even better, Presser actually addressed the incorporation issue.  If Heller is a joke, then McDonald v. Chicago is even worse of a joke since Presser came to the correct conclusion about the matter:
We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265]   and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.
Yeah, the Second Amendment relates to congress' power under article I, Section 8, Clauses 15 & 16--not state power.

I thought that Alito was on the ball when he asked if congress' power was "plenary" in the Heller.  Yeah, it is which means that the answer is:
The right is related to the militia and congress' power to arm it
Seriously, you had it right in US v Rybar, 103 F.3d 273 (3d Cir. 1996), WHAT MADE YOU GO FOR THE INTELLECTUALLY DISHONEST POSITION??? DIDN'T THINK YOU WOULD GET CAUGHT????

Back to the story,  Presser concerned people openly carrying while pretending to be a militia and claiming their Second Amendment right, but the court swatted it down saying:
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think [116 U.S. 252, 266]   it clear that the sections under consideration do not have this effect.
Oh dear, it's that nasty civic right interpretation.

And, unlike Justice Stevens' version, this one actually got it right on incorporation.

Presser even compares the First Amendment claim:
We have not been referred to any statute of the United States which confers upon the plaintiff in error the privilege which he asserts. The only clause in the constitution which, upon any pretense, could be said to have any relation whatever to his right to associate with others as a military company, is found in the first amendment, which declares that 'congress shall make no laws ... abridging ... the right of the people peaceably to assemble and to petition the government for a redress of grievances.' This is a right which it was held in U. S. v. Cruikshank, above cited, was an attribute of national citizenship, and, as such, under the protection of, and guarantied by, the United States. But it was held in the same case that the right peaceably to assemble was not protected by the clause referred to, unless the purpose of the assembly was to petition the government for a redress of grievances. The right voluntarily to associate together as a military company or organization, or to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law.
By now, I am laughing my arse off since this case is a serious nugget when looked at in relation to the farce that is Heller-McDonald.  Combine Presser with Miller, and Heller-McDonald is the serious odd man out.

As I have been pointing out, it is a tough stretch to say that carrying weapons in public outside the national defence context is protected (again, the US Constitution makes it clear it addresses NATIONAL Defence and no where mentions self-defence).

I keep mentioning that if the law is silent on the topic, one cannot assume or imply it is somehow addressed, which is something else Presser mentions:
Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.
I keep wishing that someone with more academic clout/prestige would take up these arguments, but it seems that I am the little boy who is saying the emperor has no clothes here.

But, I have loads of evidence he is as naked as a jaybird.

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