I read this last night before going to bed. I decided to just go to bed.
How often do I have to post this?
The Supreme Court in Marbury v. Madison, 5 US 137, 177. (1803) stated: “Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.” And, in their closing the Marbury court, at page 179, stated: “Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.”
The Supreme Court in United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed 588 (1876) declared that the right of “bearing arms for a lawful purpose.” was not granted by the Constitution. The understanding was that it was in existence before the Constitution. “The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress.”
Then 134 years later the Supreme Court declared that the Second Amendment applies to the states. See McDonald v. Chicago, 561 U.S. 742 (2010).
In 2008 the United States Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 592, 171 L.Ed 2d 637, 128 S.Ct. 2783 (2008) declared “we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment.” The Court then cited Cruikshank as part of its historical analysis. Thus, Heller held that the right to bear arms for a lawful purpose was secured by the U.S. Constitution.
More importantly, Heller did not limit the right to bear arms. It specifically stated, “Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.” The Court reiterated, “Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers.”
Additionally, the Supreme Court in Caetano v. Massachusetts, 577 U. S. ____ (2016) unanimously held that “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,” and that this “Second Amendment right is fully applicable to the States.”
Lower courts, federal and state, keep quoting District of Columbia v. Heller, 554 U.S. 570, 592, 171 L.Ed 2d 637, 128 S.Ct. 2783 (2008) for the proposition that keeping and bearing arms only applies to the home and the second amendment is not absolute.
Let’s be clear, Scalia gave his "opinion." His opinion is not the law. Article VI of the Constitution describes what qualifies as the law of the land. The only national laws are the Constitution, congressional law, and treaties. And, congressional law (statutory law) and treaties are only lawful if they pass constitutional muster. In Heller, Scalia told you what the law of the land is, the “Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.” Then Scalia reiterated, “Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers.”
Scalia, speaking for the court, specifically stated what the law of the land is. Anything else he says is his opinion, dicta. "Not absolute" is an opinion, it is not the law. The Supremes have made it clear, the 1A and 2A are absolute. Neither Congress nor the states can make a law that interferes with 1A or 2A, period. And, that is why “only in the home” was struck down.
The lower courts say the Supreme Court proclaims that: “Shouting fire in a crowded theater” is a crime. The case they rely on is Schenck v. United States, 249 U.S. 47 (1919). “Shouting fire in a crowded theater” in of itself is protected speech. The result of that free speech is what could be a crime. Not the speech itself. The actual sentence from Schenck is: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
Apparently, a lot of people believe anything they hear. That includes politicians and judges. Then they try to justify their opinion as law, destroying peoples’ lives.