POST-Heller comment repeal gun-ban in Nat Parks: 1 day left!

[HerbM]

The following is copied from the VCDL so edit the suggested comments as appropriate for you.

**Even if you have already sent in a comment on the proposed gun-ban
repeal in National Parks - READ ON**

With the Heller decision ruling by the Supreme Court, it looks like
the National Park gun ban is toast!

The comment period on the repeal of the National Park gun ban ends
MONDAY night, so WE NEED TO GET CRACKING NOW!!!

We need to let the Department of the Interior know that the National
Park gun ban is DOA, that the current gun-ban regulations be removed
from the books, and that they need to implement the new regulations as
per the VCDL wording.

Here is the link to the contact page:

http://tinyurl.com/5juwn3

Copy and paste the following text into the "General Comments" box and
then click "Next Step" at the bottom to continue.

***EVEN IF you already commented, you can submit an amendment to your
comments with the text below***

Suggested "General Comments" text:

--

Pursuant to the US Supreme Court decision in District of Columbia vs.
Dick Heller, both the existing and proposed National Park Service &
National Wildlife Refuge weapons regulations are invalid,
unconstitutional and void. The Virginia Citizens Defense League and
over 4 dozen co-petitioning organizations advised the Parks service of
this as long ago as 2004. Since the holding in Heller is that their
total ban on handguns infringes the 2nd Amendment, DOI and NPS should
accept the VCDL petition language as follows and implement the
regulation IMMEDIATELY after the comment period closing.

Under existing legal doctrine, once a law is held unconstitutional, it
is stricken; in the case of the park service CFR 36, regulation 2.4,
it is almost exactly the same as the District of Columbia, and
therefore void. Further, the DOI proposed regulation with it's flawed
"analogous state lands" language and is thereby also in violation
since any state level bans on bearing arms in analogous state lands
would also be implicated under Heller. The Department of the Interior
is hereby instructed to IMMEDIATELY amend the current regulations
pursuant to the VCDL petition language, copied below and the decision
of the US Supreme court rendered in Heller. The Supreme Court held
that the 2nd Amendment is an individual right protecting the rights to
keep arms and bear arms which supersedes CFR 36 regulation 2.4.

I support the proposed change to permit loaded firearms / weapons in
National Parks and Wildlife refuges but comment that the proposed
regulation should be amended as follows:

"A person may possess, carry, and transport loaded, and operable
firearms or other weapons within a national park area in the same
manner, and to the same extent, that a person may lawfully possess,
carry, and transport loaded and operable firearms or other weapons in
the state in which the federal park, or that portion thereof, is
located, provided that such possession, carrying and transporting
otherwise complies with applicable federal and state law."

And for National Wildlife Refuges:

"A person may possess, carry, and transport loaded, and operable
firearms or other weapons within a national wildlife refuge area in
the same manner, and to the same extent, that a person may lawfully
possess, carry, and transport loaded and operable firearms or other
weapons in the state in which the federal wildlife refuge, or that
portion thereof, is located, provided that such possession, carrying
and transporting otherwise complies with applicable federal and state
law."

[Charles L. Cotton]

I find it disgusting that VCDL is trying to get it's name involved in the National Parks issue again. They are the reason an earlier "deal" fell through. The new rules are entirely the result of the NRA's work on this issue and VCDL knows it.

By all means comment on the proposed rule change, but there is absolutely no reason to mention VCDL -- in fact, it may hurt.

Chas.

[Liberty]

I find it disgusting that VCDL is trying to get it's name involved in the National Parks issue again. They are the reason an earlier "deal" fell through. The new rules are entirely the result of the NRA's work on this issue and VCDL knows it.

By all means comment on the proposed rule change, but there is absolutely no reason to mention VCDL -- in fact, it may hurt.

Chas.

They have a point, don't they? Doesn't Heller emphasise the importance of the changes that that the parks departmentare concidering even more important. Adopting the suggested rules would prevent a court from intervening. No one wants that.

I still stand behind my promise, if this one flies I will sign up for the NRA.

[Charles L. Cotton]

I find it disgusting that VCDL is trying to get it's name involved in the National Parks issue again. They are the reason an earlier "deal" fell through. The new rules are entirely the result of the NRA's work on this issue and VCDL knows it.

By all means comment on the proposed rule change, but there is absolutely no reason to mention VCDL -- in fact, it may hurt.

Chas.

They have a point, don't they? Doesn't Heller emphasise the importance of the changes that that the parks departmentare concidering even more important. Adopting the suggested rules would prevent a court from intervening. No one wants that.

I still stand behind my promise, if this one flies I will sign up for the NRA.

No, they are not correct. Heller has nothing to do with carrying a handgun outside one's home. That case is probably coming and coming soon, but Heller is very clear -- it applies only to the home. There is very good dicta, but it's only dicta. VCDL doesn't help the long-term battle of expanding the scope of what Heller started by claiming any and every gun law in the country is now "invalid, unconstitutional and void." It plays into the hands of those who opposed the decision in Heller and who will oppose expansion of Heller.

Chas.

[HerbM]

No, they are not correct. Heller has nothing to do with carrying a handgun outside one's home. That case is probably coming and coming soon, but Heller is very clear -- it applies only to the home. There is very good dicta, but it's only dicta. VCDL doesn't help the long-term battle of expanding the scope of what Heller started by claiming any and every gun law in the country is now "invalid, unconstitutional and void." It plays into the hands of those who opposed the decision in Heller and who will oppose expansion of Heller.

Chas.

While it is true that this case is limited to the specific situation faced by Mr. Heller, it is also important to separate mere dicta into Ratio decidendi and Obiter dicta for which the word dicta standing alone is often incorrect used.)

Ratio dicidendi are the binding reasons for the decision, while Obiter dicta are (mere) editorializing or non-binding explanation.

The following is Ratio dicidendi are clear:

Majority Opinion DC v Heller, page 8:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Individual (natural) right, just like the 1st and 4th Amendments provide, not based on military service, protecting the right to all bearable arms!

[Liberty]

While it is true that this case is limited to the specific situation faced by Mr. Heller, it is also important to separate mere dicta into Ratio decidendi and Obiter dicta for which the word dicta standing alone is often incorrect used.)

Ratio dicidendi are the binding reasons for the decision, while Obiter dicta are (mere) editorializing or non-binding explanation.

The following is Ratio dicidendi are clear:

Majority Opinion DC v Heller, page 8:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Individual (natural) right, just like the 1st and 4th Amendments provide, not based on military service, protecting the right to all bearable arms!

Huh??? Is there an English translation available?

[Pinkycatcher]

Huh??? Is there an English translation available?

Yah, Scalia compared the second amendment to other amendments that are incorporated and not confined to the home, that along with the scrutiny level in how those are carried out are going to be an argument to start allowing rulings outside of allowing handguns in the home.

[HerbM]

Huh??? Is there an English translation available?

Yah, Scalia compared the second amendment to other amendments that are incorporated and not confined to the home, that along with the scrutiny level in how those are carried out are going to be an argument to start allowing rulings outside of allowing handguns in the home.

Good summary.

The translation part goes like this:

Cases have a decision, what the result and the orders are -- and they have explanations of those decisions.

The decisions are BINDING on the lower courts when they have a similar case. The lower court decides what is similar enough but will be reversed if it decides AND rules incorrectly. Since the lower courts usually decides correctly (enough) very few cases are heard by the Supreme Court.

The explanations for decisions are usually called "dicta" or what was "said" in getting to the opinion. Dicta is usually used in legal arguments to weaken, counter, or dismiss a legal argument from precedent that is based on the explanations of a decision. But this is a mistake sometimes since there are two kinds of dicta, and so it properly refers to obiter dicta or something said by the way -- i.e. a non-binding explanation or editorializing.

The other form is ratio dicidendi which means the reason for the decision -- i.e., the necessary logic and facts to arrive at the decision, and these ARE BINDING on lower courts.

So mere dicta, obiter dicta, the explanations are non-binding on (but might be helpful to) lower courts, while the decision itself, the necessary reasons for the decision, the logic and facts use to reach the decision are binding on the lower court when it considers similar cases.

So, when you hear something is dicta you may presume that lower courts may treat it with some, more or less weight, but that it is not an unfailing or undefeatable argument that is NECESSARILY going to bind the lower court or a future court to the same logic. (It might be -- just no guarantees.)

At that point, it makes sense to look for the ratio dicidendi, the reasons that are necessary for the decision, because they are necessary to the binding decision they are also binding. The lower court must use them as it does the decision or be in direct risk of being reversed if it decides incorrectly due to such a mistake.

Again, a lower court is bound, but might not apply it correctly, or might apply it to the wrong cases (not similar enough), etc.

The following declarations (with citations stripped for more clarity -- they are included above in this thread) are necessary to the decision, because they arrive at the fact that the 2nd Amendment protects an individual right which is directly used to rule that Heller has that right and can demand the government honor that right, and a right similar to those protected by both the 1st and 4th Amendments -- natural rights -- rights that are inseparable from the human condition, what the Declaration of Independence called unalienable rights -- even the states must respect these which is not necessarily true for rights CREATED by the Constitution such as trial by jury.

Majority Opinion DC v Heller, page 8:
Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

This leave prima facie which means that the conclusion is obvious, used to mean that a matter or conclusion appears to be self-evident. In law, prima facie denotes evidence that would be sufficient to prove a particular proposition or fact -- unless rebutted by other evidence.

This means that UNLESS the government could show that you do not have the right to own "all...bearable arms" you would (or should) win.

The burden of proof is on the other to show your right does NOT include some specific firearm (or other arm for that matter.)

This may never get fully enforce, but it is very powerful language -- probably the most powerful that could have been written by Justice Scalia.*

Why is it so powerful, yet so many people seem disappoint? Ignoring the fact that we want IT ALL, and we want it NOW, it really doesn't SEEM to go far enough (to us RKBA activists). Why? Because anything Scalia writes that goes BEYOND the logic necessary to the decision covered by the facts of this specific case is mere dicta and he doesn't waste his political clout (or time and energy) on those arguments which would be non-binding anyway.

He puts the FORCE into the necessary REASONS for the decision. Those are binding precisely because they are necessary -- so he makes that as strong as required (and possible) by the Constitution, and history of the 2nd Amendment, and history of the natural rights to self-defnese and to keep and bear arms.

Masterful. The more I read the decision, the better it gets.

I don't like that the 'sensative places' includes "schools" as an example, but that is MERE dicta, obiter dicta, explanation and editorializing -- unfortunately it is however VERY STRONG dicta, almost binding in fact, but not quite. Anything that weakens majority opinion in a split decision is unlikely to be changed since it supports the other side's argument. But actual facts might show that such protected places or the infringements they justify are a) not necessary or useful b) actually problem causing or c) somehow really do violate the right in an impermissible way not yet covered.

Tough, and don't expect a lower court to go there with extreme proof. Probably easier to just convince the legislatures that the Israelis STOPPED school terrorism by arming parents and teachers, and that gun free zones make targets for psychopaths who want helpless victims.

*It is also buttressed by other dicta (obiter dicta probably) that discuss "common use", weapons commonly in use. But unlike what most people have been presuming (including me) it does not once say, "in common use BY CIVILIANS", but only "in common use". No one can say that the issued automatic rifles of the individual infantryman or police officer are NOT in common use -- and equivalent semi-automatics are as common among non-military citizens. The only reason for the difference being that the government has made the automatic version (virtually) illegal through licensing, taxing, and manufacturing or import restrictions.

So you have "all bearable arms" as a necessary reasoning and "in common use" as a further guide (but not a restriction.) This means that the typical gun control strawman (or an exaggerated characture) that this would authorize "nuclear weapons" or "WMD" is simply avoided. None of these (WMD) are in common use by either our individual soldiers, the police, nor civilians.

I got carried away, I only meant to explain the latin.

[Kythas]

I got carried away, I only meant to explain the latin.

I'm glad you did get carried away, Herb. That was a very insightful explanation.

Thanks.

[Charles L. Cotton]

No, they are not correct. Heller has nothing to do with carrying a handgun outside one's home. That case is probably coming and coming soon, but Heller is very clear -- it applies only to the home. There is very good dicta, but it's only dicta. VCDL doesn't help the long-term battle of expanding the scope of what Heller started by claiming any and every gun law in the country is now "invalid, unconstitutional and void." It plays into the hands of those who opposed the decision in Heller and who will oppose expansion of Heller.

Chas.

While it is true that this case is limited to the specific situation faced by Mr. Heller, it is also important to separate mere dicta into Ratio decidendi and Obiter dicta for which the word dicta standing alone is often incorrect used.)

Ratio dicidendi are the binding reasons for the decision, while Obiter dicta are (mere) editorializing or non-binding explanation.

The following is Ratio dicidendi are clear:

Majority Opinion DC v Heller, page 8:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Individual (natural) right, just like the 1st and 4th Amendments provide, not based on military service, protecting the right to all bearable arms!

You are wrong. "Dicta" used in legal circles does not refer to ratio decidendi regardless of what you may have read in Wikipedia. The Latin phrase for "dicta" is obiter dictum" which means:

• "words of an opinion entirely unnecessary for the decision of the case. A remark made, or opinion expressed, by a judge this is incidentally or collaterally, and not directly upon the question before him, or upon a point not necessarily involved in the determination of the cause. Such are not binding as precedent.

Black's Law Dictionary (See also Noel v. Olds 138 F.2d 581, 586)

When lawyers and judges refer to dicta, they do not mean Ratio decidendi. Ratio decidendi is "the grounds or reason of a decision. The point in a case which determines the judgment." These are the facts and legal grounds for the decision in a specific case and of course it sets precedent; it's the very reason for the decision. As a very general statement, in Heller the ratio decidendi, or basis of the decision, is the protection the Second Amendment provides to a person wanting to use a handgun for self-defense in his home. Any statements not directly relating to personal protection in the home are merely dicta, i.e. obiter dictum. Dicta can be powerful and persuasive in future cases, but it is not precedent, it is not controlling, and it cannot be used to say that Heller renders National Park Rules unconstitutional. That will require a future case where either National Park Rules or other governmental rules or regulations are the central issue in the case.

Just an example of the dicta in Heller, Scalia sends a pretty clear message how the majority would rule on incorporating the Heller decision to the states via the Fourteenth Amendment. Since incorporation was not an issue in the case, Scalia's comments were merely dicta and cannot be used as precedent in the lower courts in other cases. Nevertheless, it could influence a lower court to rule that Heller applies to the states and let the state appeal his ruling, but it is not binding.

Nothing in Heller renders the current or prospective National Park Rules "invalid, unconstitutional and void" as VCDL contends. Indeed, nothing in the opinion deals with anything outside the home.

Chas.

[Charles L. Cotton]

The explanations for decisions are usually called "dicta" or what was "said" in getting to the opinion.

No it is not. No judge or attorney refers to the relevant facts underpinning a decision as "dicta." A reference to "dicta" by an attorney or a judge is a reference to what you are referring to as obiter dictum.

Dicta is usually used in legal arguments to weaken, counter, or dismiss a legal argument from precedent that is based on the explanations of a decision.

No it is not. Dicta is used by a person trying to extend the holding of an appellate court's decision beyond the scope of the opinion. Often this is done by acknowledging that the language upon which an argument is made is merely dicta, but then showing why an appellate court will accept this argument when presented with a case on point. For example, I could argue that "Your honor, in Heller the Supreme Court noted in dicta that Cruikshank held that the Second Amendment applies only to the federal government, but Justice Scalia also pointed out that the Cruikshank Court also held the First Amendment did not apply to the states." I would be acknowledging that the language upon which I relied was merely dicta, but I would be showing that this dicta likely will become law, when the Supreme Court takes a case where incorporation of the Second Amendment is an issue. My opposition could well argue that the language I quoted is only dicta and this is not controlling and he would go on to show the court why my case differs factually from Heller.

Remember the quote from VCDL in the original post argued that Heller renders current and proposed National Park Rules unconstitutional and void. It does no such thing.

Chas.

[stevie_d_64]

Note to self:

"Never, ever get into a legal battle of wits, or interpretations of latin phrases or words with Charles..."

But that doesn't mean I do not have opinions about these issues...As many do here...

I would not want to handcuff us too quick by using this Heller opinion as the "pitard" to make other things happen too soon, in regards to stamping out other infringing policies and ordinances that are obviously un-Constitutional...

Lets see how this plays out with some of the state legislatures in the next year...I believe we may shift things around a bit more effectively if we follow (and support the bills) some of our elected officials carry for us in this next go-around...