Great Second Amendment News: Heller Can Be Retroactive

News from last week I missed: a D.C. Court of Appeals decision says that a guilty plea for gun-related actions now legal in D.C. post-Heller can be set aside. The court saith: "A conviction for conduct that is not criminal, but is instead constitutionally protected, is the ultimate miscarriage of justice."

Via Volokh Conspiracy.

The full decision in Magnus v. U.S.

Comments

[TheOtherSomeGuy]

Wow. When was the last time you remember seeing a story about the courts actually delivering real justice?

This makes me feel much better. Hope is a wonderful thing.

[Suki]

Never before.

[KAOS has been destroyed]

Max turn in your shoe, Agent 13 GTF out of the mailbox, and Agent 99 take a pill; he married three times and was a gambling addict.

[me]

"A conviction for conduct that is not criminal, but is instead constitutionally protected, is the ultimate miscarriage of justice." Wow, I had to read this line twice just to be sure I was reading right. This sounds something like, like, like sanity!

[dunphy]

hope is the thing with feathers

[Chad]

Given that we are all strict constructionists around here, shouldn't the "arms" part of the second amendment refer to ye olde musket and cannon, and not Glocks. Clearly, it takes a living interpretation of our founders' words to get from "slow-ass, breach-loading, wildly-inaccurate ten-pound musket" to "thirty-three bullets in fifteen seconds, hid comfortably in your pocket".

[Thane Eichenauer]

If the founders wanted to recognize the right of the people to keep and bear muskets they would have said so.

There were pistols in the 1700's. If the founders had wanted to authorize the regulation of pistols they could have but didn't.

[sevo]

Chad|1.10.11 @ 11:11PM|#
"Given that we are all strict constructionists around here, shouldn't the "arms" part of the second amendment refer to ye olde musket and cannon, and not Glocks..."
Given that Chad is an ignorant asshole, shouldn't Chad's comments be considered worthless on the face of them?

[sevo]

Chad|1.10.11 @ 11:11PM|#
"Given that we are all strict constructionists around here, shouldn't the "arms" part of the second amendment refer to ye olde musket and cannon, and not Glocks..."
And just for the heck of it, asshole, at the time "speech" was also limited to actual noises and printing presses. Asshole.

[Mr Powerless]

Not just any printing presses, but manual flatbed ones. No spewing out hundreds of thousands of pages from your power rotary press!

[OhioOrrin]

no & no

[John Thacker]

Chad, you're the one who believes that freedom of speech doesn't apply to the Internet because it's all different and stuff, not us.

[Chad]

It's different, but not in a way that matters.

This is not true for Glocks.

[Huh?]

Huh?

[OhioOrrin]

wingnuts cant follow logic chad since they react w emotion to common stimuli. >hurry & stockpile ammo before the NEXT gun confiscation! lol

[Barely Suppressed Rage]

It is painfully obvious to any reasoning, rational human being that the left-wing progressives are constitutionally incapable of following logic, and react solely with emotion.

After all, they're the ones who, after a lone, deranged gunman kills some people, want to restrict the rights of those who didn't do it.

[hmm]

Not true. Arms were evolving and the innovation of arms played a vital role in the revolution. You assume that the people that wrote a document that even your dizzying intellect seems to have trouble comprehending weren't aware that the science of war would change. That's a pretty big stretch considering the history of the guys that wrote it.

[MNG]

" weren't aware that the science of war would change"

War? Are you admitting it was meant as a militia based right and not an "individual armed self defense" right?

[Barely Suppressed Rage]

No. The two are not mutually exclusive, and there's the incorrect trope of the left.

"The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans. The unlimited power of the sword is not in the hands of either the federal or state governments but where, I trust in God, it will always remain, in the hands of the people.

The "militia" is made up of all able-bodied free men, formerly limited to those between the ages of 18 and 45.

The militia IS the people, individually armed, acting in organized concert for self-defense and common defense.

[Barely Suppressed Rage]

Forgot to close quotes up there and attribute the quote. It's from Tench Coxe.

[Sam Grove]

Obviously they were referring to the state of the art.

[dunphy]

if one was to use that "logic" (for very loose definition of logic) than the first amendment wouldn't apply to the internet, for example.

[MNG]

I can't speak for Chad but I imagine he would say this bolsters his point (that is one must have living interpretations of both the 1st and 2nd, we should not be bound by the original expecations of the ratifiers but rather apply their principles to our facts).

[Steve]

It's still "the press," it does not matter that the technology has changed, the basic idea is still there.

The same with weapons (arms.)

[hmm]

Why would it have to be living. Arms are arms, speech is speech. Those seem pretty fucking simple terms to the majority of the country until you get to the people that think they know best for everyone.

[Zeb]

How fucking stupid do you think people are, Chad?

[Barely Suppressed Rage]

"Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans." - Tench Coxe.

When they said "arms," they meant the types of arms useful to an organized military force. "The great object is that every man be armed." The idea being that the individual people have the right to the same types of "arms" as the military. They were very suspicious of a standing army becoming too powerful and imposing tyranny over the citizens, so the intent was that the citizenry be equally armed.

Take a look at U.S. v. Miller and you'll see the Supreme Court of the U.S. said exactly this in its not very well-written opinion. The only thing Miller stands for is the conclusion that the "arms" mentioned in the Second Amendment are meant to include current state-of-the-art military-style light infantry weapons: sidearms, rifles, shotguns and small mortars.

[Binky]

"A conviction for conduct that is not criminal, but is instead constitutionally protected, is the ultimate miscarriage of justice."

When the new "hate-speech" legislation gets passed, this will seem quaint.

[Bucky]

this ^^^^

[hmm]

That gets filed under "F" for FUCKING OWNED ASSCLOWNS.

Sadly the slew of other retarded legislation rulings that will follow will negate any good this does.

[Paul]

Makes sense to me. If you're convicted on an specific type of search, and a court later finds all searches of that type to be unconstitutional... then you were never guitly.

[Paul]

Given that we are all strict constructionists around here, shouldn't the "arms" part of the second amendment refer to ye olde musket and cannon

Nope, because words mean things and the constitution doesn't say "ye olde musket and cannon". Had it said "Ye olde musket and cannon" then you'd have a match to light that straw man with.

[robc]

Exactly. However, I think the term bear in front of arms limits it to small arms, as a person cant bear a nuke.

Basically, any single person transportable and fireable firearm would be 2nd amendment protected, including those developed in the future.

Which takes out a lot of the silliness that people suggest if you take the 2nd amendment seriously. Some might disagree, but I dont think crew served weapons are covered by 2A.

[OhioOrrin]

the 2d also says milita but the gun nuts ignore that as well.

[robc]

Im a member of the militia, I assume you are too.

But it doesnt see anything about the right belonging to the milita, the right belongs to the people.

And I know for a fact that I am a people.

[OhioOrrin]

no im off active duty & in the reserves not some end-times chickenhawk milita like the hutaree.

[Zeb]

Ignorance of the law is no excuse: http://en.wikipedia.org/wiki/Militia_Act_of_1903 .

[Zeb]

Sorry, not a useful link. Try this: http://www.law.cornell.edu/uscode/10/311.html

[robc]

I think it would be constitutional for the congress to REQUIRE every* male 17 thru 45 (who is a citizen or has intent to become one) to have a functioning firearm in their household.

I dont support this law, but you know, you realize cant trust those Canadians.

*excepting those who are restricted by law.

[OhioOrrin]

so the milita consists of...the milita, organized or not. very enlightening...

[robc]

Diagram 2A then come back and tell us what it means.

[Barely Suppressed Rage]

And the gun-fearing wussies who want to ban private ownership ignore the entire history of the right to keep and bear arms and everything that was written about it by the Founders and other contemporary commentators.

If you're any representation, they also apparently have a pretty hard time with spelling, punctuation and grammar in general.

[MNG]

Are'nt RPG launchers a transportable and fireable firearm?

[Gray Ghost]

And can't you own one, provided you go through the NFA explosive device tax/background check rigamarole?

[Brett L]

Yes. But BATFE can shoot your dog and kick down your door at random. And you pay something like $3500 for the privilege.

[John Thacker]

Sounds good. Now I wish that President Obama would commute the sentences of those who were convicted under the now repealed excessive crack laws.

[Michael Ejercito]

The crack laws were repealed legislatively; they were not invalid in abnitio via judicial construction of the U.S. Constitution.

[domoarrigato]

We have a winner - tell him what he's won!

[dunphy]

correct. they were stupid, but stupid =/= unconstitutional.

whether a law is a good idea and whether a law is constitutional (or not) are two ENTIRELY different determinations

sometimes they intersect, and sometimes they don't

[robc]

It is well within the presidents power to commute/pardon people convicted of stupid but constitutional laws. In fact, given that he has this power, commuting those convicted of stupid laws would seem to be its primary purpose. It is yet another unused check on legislative power.

[robc]

Other unused checks on legislative power:

1. Jury nullification
2. Cops using judgement

[generic Brand]

You're really asking a lot of cops there. Why don't you just say what you really mean: "Turn in your gun and your badge" because that's what you're asking of them if you demand they use judgment.

[dunphy]

an average patrol cop in a busy district has to do, and does, use a LOT of judgment quite frequently.

the fallacy is that the good judgment calls rarely make the news (the lady with the knife i tackled the other day instead of shooting being an excellent example). i was legally justified in shooting. i CHOSE not to

stuff like that doesn't even MAKE the press. you'll never know about it. it doesn't bleed, it didn't lead.

since you generally only read about the controversial or bad (especially here) judgment calls, you get a naturally skewed perspective

imo, if you haven't done a ride along with the local pd a couple of times (i did over a dozen before i applied to be a cop) you only know what the media tells you

[dunphy]

i use the latter. juries should use the former more frequently. i've read a metric assload of jury interviews where a juror said "we had no choice to convict" etc. jurors ALWAYS have a choice. they are the ... "decider"

[M!]

Seattle Superhero 'Phoenix Jones' Patrols Streets, Fights Crime
http://newsallaroundus.blogspo.....trols.html

[M!]

Seattle Superhero 'Phoenix Jones' Patrols Streets, Fights Crime
mhttp://newsallaroundus.blogspot.com/2011/01/seattle-superhero-phoenix-jones-patrols.html

[suede slouch boots]

Excellent read, I just passed this onto a colleague who was doing a little research on that. And he actually bought me lunch because I found it for him smile So let me rephrase that: Thanks for lunch!

[?????? ?????]

Given that we are all strict constructionists around here, shouldn't the "arms" part of the second amendment refer to ye olde musket and cannon, and not Glocks. Clearly, ???? ?????? ????? ??????? ???? ????? ????? ??????? it takes a living interpretation of our founders' words to get from "slow-ass, breach-loading, wildly-inaccurate ten-pound musket" to "thirty-three bullets in fifteen seconds, hid comfortably in your pocket".
breach-loading, wildly-inaccurate ten-pound musket" to "thirty-three bullets in fifteen seconds, hid comfortably in your pocket".

[alaamiah]

decision says that a guilty

[alaamiah]

Court of Appeals decision says that

[alaamiah]

decision says that a guilty plea for gun-related actions now legal in D.C. post-Heller can be set aside.

[alaamiah]

ller can be set aside. The court saith: "A conviction for conduct that is not criminal, but is i

[moving]

post-Heller can be set aside.