Archive for the ‘personal right’ Category

US V Rybar on the Second Amendment

Editorial note: This is the Section of U.S. v. Rybar,103 F.3d 273 (3d Cir. 1996) that deals with Rybar’s Second Amendment defence. It addresses the arguments found in the pro-Heller briefs and finds them without merit.

Second Amendment

As an independent basis for his argument that section 922(o)
is unconstitutional, Rybar relies on the Second Amendment of the
Constitution, which 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.” U.S.
Const. amend. II.

In support, Rybar cites, paradoxically, the Supreme Court
decision in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816,
83 L.Ed. 1206 (1939), where the Court upheld the
constitutionality of a firearms-registration requirement against
a Second Amendment challenge. Rybar draws on that holding,
relying on the Miller Court’s observation that the sawed-off
shotgun in question had not been shown to bear “some reasonable
relationship to the preservation or efficiency of a well
regulated militia.” Brief of Appellant at 24-25; Miller, 307
U.S. at 178, 59 S.Ct. at 818. Drawing from that language the
contrapositive implication, Rybar suggests that because the
military utility of the machine guns proscribed by section 922(o)
is clear, a result contrary to that reached in Miller is
required, and the statute is therefore invalid under the Second

Rybar’s reliance on Miller is misplaced. The language Rybar
cites is taken from the following passage:

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.
Certainly it is not within judicial notice that this weapon
is any part of the ordinary military equipment or that its
use could contribute to the common defense.

307 U.S. at 178, 59 S.Ct. at 818.

We note first that however clear the Court’s suggestion that
the firearm before it lacked the necessary military character, it
did not state that such character alone would be sufficient to
secure Second Amendment protection. In fact, the Miller Court
assigned no special importance to the character of the weapon
itself, but instead demanded a reasonable relationship between
its “possession or use” and militia-related activity. Id.; see
Cases v. United States, 131 F.2d 916, 922 (1st Cir.1942)
(susceptibility of firearm to military application not
determinative), cert. denied, 319 U.S. 770, 63 S.Ct. 1431, 87
L.Ed. 1718 (1943). Rybar has not demonstrated that his
possession of the machine guns had any connection with
militia-related activity. Indeed, as noted above, Rybar was a
firearms dealer and the transactions in question appear to have
been consistent with that business activity.

Nonetheless, Rybar attempts to place himself within the
penumbra of membership in the “militia” specified by the Second
Amendment by quoting from 10 U.S.C. section 311(a):

The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in
section 313 of title 32, under 45 years of age who are …
citizens of the United States….

Rybar’s invocation of this statute does nothing to establish
that his firearm possession bears a reasonable relationship to
“the preservation or efficiency of a well regulated militia,” as
required in Miller, 307 U.S. at 178, 59 S.Ct. at 818. Nor can
claimed membership in a hypothetical or “sedentary” militia
suffice. See United States v. Hale, 978 F.2d 1016, 1020 (8th
Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123
L.Ed.2d 174 (1993); 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); 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).

Rybar boldly asserts that “the Miller Court was quite simply
wrong in its superficial (and one-sided) analysis of the Second
Amendment.” Brief of Appellant at 27. As one of the inferior
federal courts subject to the Supreme Court’s precedents, we have
neither the license nor the inclination to engage in such
freewheeling presumptuousness. In any event, this court has on
several occasions emphasized that the Second Amendment furnishes
no absolute right to firearms.
See United States v. Graves, 554
F.2d 65, 66 n. 2 (3d Cir.1977); Eckert v. City of Philadelphia,
477 F.2d 610 (3d Cir.), cert. denied, 414 U.S. 839, 843, 94 S.Ct.
89, 104, 38 L.Ed.2d 74, 81 (1973). Federal attempts at firearms
regulation have also consistently withstood challenge under the
Second Amendment. See, e.g., Hale, 978 F.2d at 1020; Warin, 530
F.2d at 108; United States v. Three Winchester 30-30 Caliber
Lever Action Carbines, 504 F.2d 1288, 1290 n. 5 (7th Cir.1974);
United States v. Johnson, 497 F.2d 548, 550 (4th Cir.1974);
Cases, 131 F.2d at 923. We see no reason why section 922(o)
should be an exception.

Are you reading this, Justice Alito?

This blog started as a joke after I realised that my dog has been in more courtrooms than Harriet Miers. No joke. Ask Arnie Silverstein and his partner; they will verify this. There is a District Justice in Montgomery County who also knows I come to court because she brings her dog as well. So, there are dogs out there who have been in Court more than some Judicial nominees, but that is not the point.

Neither is the point that I find this blog comes out top in the search results when I google certain subjects.

I do this for myself, but I wouldn’t mind the recognition. Or money. Michael is truly a slacker given that friends he went to school with are in positions of power: Governors, Judges, Presidential advisors, or high government officials. No, Michael is the honest lawyer, which means he is BROKE .

The real point is that in conversations and my early blogs, I pointed out that Justice Alito was on the three judge panel that decided U.S. v. Rybar,103 F.3d 273 (3d Cir. 1996). That was the case which earned him the nickname “machinegun Sammy”. But, I have been pointing out as frequently as I can that this case addressed the personal right interpretation of the Second Amendment which was raised as a defence by Rybar. The Rybar court held that the Second Amendment was a collective right, which means that it is to ensure the efficacy of the Militia institution set up under Article I, Section 8.

Justice Alito did dissent, but he did so in a manner similar to Justice Kennedy did in US v Lopez, 514 U.S. 549 (1995) which was to say that he would have found the machinegun statute constitutional had Congress provided a finding that these items were in interstate commerce.

Now, I have raised the question whether this means that Justice Alito follows the collective right interpretation of the Second Amendment whenever I can. I am also curious if stare decisis precludes Justice Alito from taking the individual right interpretation, which most commentators are not sure. I would like to think that it does. Or, failing that, I would like to think that Justice Alito is what I consider a true conservative rather than the idiots who call themselves conservative these days. This means that Justice Alito knows the accepted judicial interpretation of the Second Amendment, which is that it is to ensure the efficacy of the militia set up under Article I, Section 8 and has nothing to do with self-defence, hunting, or shooting sports in general.

It is even sillier to say it has something to do with the ability to revolt against a “tyrannical government”.

As I have before, none of those concepts are mentioned in the Second Amendment, and the right of revolt is totally ridiculous as it goes against everything in the Constitution.

I know people who know Justice Alito and they say he is a very intelligent and considered judge. I would like to think that he is not swayed by poor arguments such as the majority of people believe that the Second Amendment guarantees a personal right to things which are not within the scope of that Amendment (self-defence, hunting, shooting sports in general, or “revolt”). It is fallacious reasoning to be swayed by numbers especially when those numbers are wrong.

I read the briefs for Heller that argue the personal right and I see fallacious arguments, false history, misquotations,and so on. The fact is that the Second Amendment has been interpreted as being related to the preservation or efficiency of a well-regulated militia.

The court denied Rybar’s motion to dismiss Counts I and III.
The court held that section 922(o) was “a valid exercise of the
authority granted to Congress under the Commerce Clause” and was
compatible with Second Amendment protections “because this
defendant’s possession of a machine gun was not reasonably
related to the preservation or efficiency of a well-regulated

OK, that may not be the best excerpt from the Rybar decision, but it makes my point.

Please, Justice Alito, you have shown reason in interpretation of the Second Amendment in the past. I hope that you can persuade the other justices that the Personal right interpretation is fallacious and dangerous to society.

You are being “dogged” in this regard.

Note: I just googled “Justice Alito Rybar” and this came up toward the front of the results! I hope Justice Alito reads this!