The Countertop Chronicles

"Run by a gun zealot who's too blinded by the NRA" - Sam Penney of

Wednesday, May 11, 2005

Bach v. Pataki

Jeff at Alphecca gives his usual treatment to a Yahoo Biz story on the recent Bach v. Pataki decision in the Second Circuit.

There are, of course, a couple of points he misses (not being a lawyer, he may be unaware of them).

First, there is no such case as Presser v. Illinois, 16 U.S. 2252 (1886). I haven't read the Back opinion so I don't know on whom the error falls, but what I presume Yahoo Biz was citing is Presser v. Illinois, 116 U.S. 252 (1886).

Of course, Presser's applicability as well as that of U.S. v. Cruikshank, 92 U.S. 542 (1876) was soundly questioned in Silveira v. Lockyer 312 F.3d 1052 at 1067 (9th Cir. 2002) as occuring
before the Supreme Court held that the Bill of Rights is incorporated by the Foureenth Amendment due process clause.
In fact, the Silveira court - not a friend of gun owners at all - went so far as to even state
One point about which we are in agreement with the Fifth Circuit is that Cruikshank and Presser rest on a principle that is now thoroughly discredited.
Boy, I'd love to see the Supreme Court knock this one out of the park. Unfortunatly, its probably a very good delaying tactic on part of the GFW's on the 2nd, because if the Supreme's were to take the issue up, they likely would limit their review to the error of relying upon Presser. Once reveresed, they would simply send it back down to the Second Circuit and avoid any discussing of the underlying Second Amendment concerns that are really at issue.


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