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Thread: Szymecki v. Norfolk 2nd Amendment case dismissed by Judge Morgan!

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    You heard it here first...

    The Second Amendment Wiped Away Again


    For nearly seventy years after the U.S. Supreme Court decision in Miller v. The United States the Second Amendment’s right to keep and bear arms became a dead letter in the law. All of the present gun-control laws were passed and litigated over with seldom a mention of the Second Amendment.


    The Supreme Court decision in District of Columbia v. Heller handed down last Tuesday seemed to change everything. The Second Amendment had been found to be a right belonging to every American. But it took only a single day in Virginia to have the Second Amendment again become largely a dead letter according to the lower federal courts.


    Senior Norfolk Judge Henry Coke Morgan held in a local federal case the day after Heller was decided that the individual right created by the Second Amendment does not impose any obligations whatsoever on state or local governments: only the federal government. The decision came in the controversial case of Chet Szymecki v. City of Norfolk where the citizen was detained, handcuffed and roughed up by Norfolk The count made under the Second Amendment for injunctive relief and for compensation was dismissed. The other constitutional claims made by Szymecki, for an unreasonable seizure and for the use of excessive force by police, survived dismissal, at least for now.

    Judge Morgan’s opinion cites for support but one Fourth Circuit Court of Appeals decision. Edwards v. City of Goldsboro (1999). That case treats the Second Amendment in a single, short paragraph with conclusions only: no analysis. That City of Goldsboro case also cites to but one earlier Fourth Circuit decision. That earlier case provided the same short treatment of the Second Amendment. Love v. Pepersack (1995). That decision cited two U.S. Supreme Court case from 1876 and 1886 that held, like all post Civil War era decisions did, that the Bill of Rights was not made incumbent on state governments by the passage of the 14th Amendment. That constitutional jurisprudence changed entirely during the Twentieth Century making the Bill of Rights incumbent on the States. Judge Morgan finds the Second Amendment to be such a poor stepchild among the Bill of Rights that it can safely be ignored by government in 90% of instances.1

    Many leftist commentators on Heller make the same argument also without providing a logical reason to exempt States and cities from one of the Bill of Rights, but not the others. This issue is the next big hurdle for the Second Amendment to overcome in its long passage to relevance again.


    This publication hopes Mr. Szymecki’s case becomes the next U.S. Supreme Court decision concerning the scope of the Second Amendment. Then Americans will finally have a right of self-defense that applies to all levels of government interference.


    1 This is all of the Fourth Circuit writings there are on the Second Amendment in the past seventy years:

    Edwards v. City of Goldsboro, 178 F.3d 231, 231 (4th Cir. 1999)


    “The Second Amendment provides that “[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. The district court properly dismissed Sergeant Edwards' claim that the Defendants violated the Second Amendment by denying him permission to teach the concealed handgun safety course while he was off-duty and by punishing him for doing so without permission, because the law is settled in our circuit that the Second Amendment does not apply to the States. See Love v. Pepersack, Sr., 47 F.3d 120, 123 (4th Cir. 1995) (holding that Second Amendment does not apply to the States, and therefore affirming dismissal of plaintiff's claim against State of Maryland and several Maryland state police officers, alleging that such parties violated her Second Amendment right to “keep and bear” a handgun by denying her a permit to carry a handgun).”

    Love v. Pepersack, 47 F.3d 120, 120 (4th Cir. 1995)


    “The Second Amendment does not apply to the states. Presser v. Illinois, 116 U.S.United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 [F.3d 124] (1876).5 Moreover, even as against federal regulation, the amendment does not confer an absolute individual right to bear any type of firearm. In 1939, the Supreme Court held that the federal statute prohibiting possession of a sawed-off shotgun was constitutional, because the defendant had not shown that his possession of such a gun bore a “reasonable relationship to the preservation or efficiency of a well regulated militia.” United States v. Miller, 307 U.S. 174, 178, 59 S. Ct. 816, 818, 83 L. Ed. 1206 (1939). Since then, the lower federal courts have uniformly held that the Second Amendment preserves a collective, rather than individual, right. This court's precedent is United States v. Johnson, 497 F.2d 548 (4th Cir. 1974). In Johnson, the defendant challenged the constitutionality of the federal statute prohibiting possession of firearms by convicted felons. We were not impressed (id. at 550):
    252, 6 S. Ct. 580, 29 L. Ed. 615 (1886);

    Johnson's argument that [18 U.S.C. §] 922(g) is an unconstitutional violation of his Second Amendment right to keep and bear arms is not new. See, e.g., United StatesU.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939). The courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms which must bear a “reasonable relationship to the preservation or efficiency of a well-regulated militia.” 307 U.S. at 178, 59 S. Ct. at 818. Johnson presents no evidence that section 922(g) in any way affects the maintenance of a well regulated militia.’


    Obviously, these judges were quite wrong about the import of the Second Amendment.






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    Well, we have our test case. I'm not sure it could be under better circumstances. Chet seems like a stand-up guy, and he was very clearly within his rights. The fact that he didn't break any laws makes things even better.

    I too hope Chet's case makes it to the SCOTUS.

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    Campaign Veteran deepdiver's Avatar
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    Wow. History unfolding right here with a member of our forum.
    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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    Regular Member Virginiaplanter's Avatar
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    Sorry to hear what happened. As I have stated previously, the Heller decision now allows under Virginia law for declaratory and injunctive relief if the Feds don't allow relief at higher levels.





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    I think this was expected. A federal judge may not incorporate the 2nd amendment via the 14th on his or her own. That will likely take a Supreme Court decision.

    In 1875, the Sumpreme Court ruled that the Bill of Rights does not apply to the states. Later, portions of this ruling were reversed by the Court (the 1875 decision ruled that both the 1st and 2nd amendments did not apply to the states). A generation later, the court reversed itself in regards to the 1st amendment. There is little reason to believe they will not do the same in regards to the 2nd - but a case begging this question must come before them.

    I know how critical some folks on this board are of the NRA - and the NRA is notoriously selective in the cases it will support (wisely, I believe). However, this is a good example of the kind of case the NRA might would support. Because Chet is (by all accounts) as "pure as the driven snow", he passes the NRA's first hurdle. A family man who is ex-military, etc. The financial support of an organization like the NRA would be very helpful if the goal is to eventually get this case before the Supreme Court.

    A question for the attorney's on the board: am I correct in thinking only the Supreme Court (and not a circuit court, such as the 4th circuit) will be able to reverse Judge Morgan and rule that the 2nd amendment is incorporated against the states?

    Also, do we know why this case was not filed in state court?


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    SicSemperTyrannis wrote:
    I think this was expected. A federal judge may not incorporate the 2nd amendment via the 14th on his or her own. That will likely take a Supreme Court decision.

    In 1875, the Sumpreme Court ruled that the Bill of Rights does not apply to the states. Later, portions of this ruling were reversed by the Court (the 1875 decision ruled that both the 1st and 2nd amendments did not apply to the states). A generation later, the court reversed itself in regards to the 1st amendment. There is little reason to believe they will not do the same in regards to the 2nd - but a case begging this question must come before them.

    I know how critical some folks on this board are of the NRA - and the NRA is notoriously selective in the cases it will support (wisely, I believe). However, this is a good example of the kind of case the NRA might would support. Because Chet is (by all accounts) as "pure as the driven snow", he passes the NRA's first hurdle. A family man who is ex-military, etc. The financial support of an organization like the NRA would be very helpful if the goal is to eventually get this case before the Supreme Court.

    A question for the attorney's on the board: am I correct in thinking only the Supreme Court (and not a circuit court, such as the 4th circuit) will be able to reverse Judge Morgan and rule that the 2nd amendment is incorporated against the states?

    Also, do we know why this case was not filed in state court?
    It feels soooo good!

    Losing this round could prove to be a good thing - I hope so!

    Yata hey
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Regular Member Thundar's Avatar
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    I could not imagine a better incorporation case. I hope Chet appeals the ruling.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitableand let it come! I repeat it, Sir, let it come . PATRICK HENRY speech 1776

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    A better incorporation case would be one filed in federal court and would specifically deal with a ban on possession rather than carrying. Here Norfolk violated a state law which protected Chet's right to carry his weapon, and a court will typically decline to decide a constitutional issue if it can decide a case without doing so.

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    Regular Member Thundar's Avatar
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    ianto94 wrote:
    A better incorporation case would be one filed in federal court and would specifically deal with a ban on possession rather than carrying. Here Norfolk violated a state law which protected Chet's right to carry his weapon, and a court will typically decline to decide a constitutional issue if it can decide a case without doing so.
    Scalia's opinion was quite clear about keeping and bearing being individual rights. Chet sued in Federal Court for violation of rights. The court dismissed based upon the lack of incorporation of the 2nd in the 14th.

    Edwards v. City of Goldsboro, 178 F.3d 231, 231 (4th Cir. 1999)

    “The Second Amendment provides that “[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. The district court properly dismissed Sergeant Edwards' claim that the Defendants violated the Second Amendment by denying him permission to teach the concealed handgun safety course while he was off-duty and by punishing him for doing so without permission, because the law is settled in our circuit that the Second Amendment does not apply to the States.


    By the time this case gets to SCOTUS do you think open carry will belegal in DC?
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitableand let it come! I repeat it, Sir, let it come . PATRICK HENRY speech 1776

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    Thundar wrote:
    By the time this case gets to SCOTUS do you think open carry will belegal in DC?
    I wouldn't hold your breath

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    Maybe its just my bad eyes, but I don't see a link.

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    mariner wrote:
    Maybe its just my bad eyes, but I don't see a link.
    ...to what?

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    xd.40 wrote:
    mariner wrote:
    Maybe its just my bad eyes, but I don't see a link.
    ...to what?
    The 2A doesn't apply to the states????

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    Maybe I need some clarification as well because I don't understand this. How can the bill of rights be ignored/be infringed without repurcussion by the states?


    Doesn't that defeat the purpose of having a bill of rights?

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    It's a rather long and drawn-out discussion, but the Bill of Rights wasn't originally seen to limit a state's powers with regards to individuals. That has changed over time on an amendment-by-amendment basis.

    So as it stands right now, the Fourth Amendment, for example, has been ruled to limit the states as well as the federal government. No court has yet ruled whether or not the Second Amendment is a restriction on the states.

    Does that make sense (I don't mean the logic, because I know that doesn't make sense, I just mean my explanation of the situation)?

    ~ Boyd

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    Yes, the explanation helps. I wasn't aware of the distinction. Thank you

    Crazy stuff...here are the laws that protect all american's rights, but local/state governments can ignore these rules.

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    Thundar wrote:
    ianto94 wrote:
    A better incorporation case would be one filed in federal court and would specifically deal with a ban on possession rather than carrying. Here Norfolk violated a state law which protected Chet's right to carry his weapon, and a court will typically decline to decide a constitutional issue if it can decide a case without doing so.
    Scalia's opinion was quite clear about keeping and bearing being individual rights. Chet sued in Federal Court for violation of rights. The court dismissed based upon the lack of incorporation of the 2nd in the 14th.

    Edwards v. City of Goldsboro, 178 F.3d 231, 231 (4th Cir. 1999)

    “The Second Amendment provides that “[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. The district court properly dismissed Sergeant Edwards' claim that the Defendants violated the Second Amendment by denying him permission to teach the concealed handgun safety course while he was off-duty and by punishing him for doing so without permission, because the law is settled in our circuit that the Second Amendment does not apply to the States.


    By the time this case gets to SCOTUS do you think open carry will belegal in DC?
    I agree Scalia's opinion portends incorporation. However, Chet's state law claims survive here according to the story. Assuming he wins on his state law claims -- and I think he should -- there is unlikely to be an appeal to the 4th circuit to vindicate his second amendment claim.

    On open carry in DC, that fight will be coming soon I think but what DC will likely do with its back against the wall is to allow mandatory issue CC permits under tightly restrictive conditions and that may, repeat may, survive a DC Circuit challenge. Hold on to your seats, this will be a fun ride.

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    Hang in there, Chet. Ever anything I can do to help, or even to just vent, drop me a line.

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    Neplusultra wrote:
    xd.40 wrote:
    mariner wrote:
    Maybe its just my bad eyes, but I don't see a link.
    ...to what?
    The 2A doesn't apply to the states????
    The 2A doesn't even have to apply to the states in order for our rights to be protected.

    Virginia has their own 2A:

    Section 13. Militia; standing armies; military subordinate to civil power.

    That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.



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    Yeah, but I don't think the FEDERAL court has jurisdiction over claims made under the state constitution.

    I will go so far as to say an RKBA claim on the basis of the state constitution must be made in STATE court.

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    W.E.G. wrote:
    Yeah, but I don't think the FEDERAL court has jurisdiction over claims made under the state constitution.

    I will go so far as to say an RKBA claim on the basis of the state constitution must be made in STATE court.
    oops...I missed that part about being in a federal court.

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    See Judge Morgan’s opinion and order…


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    What the hell? How is it that "the Norfolk ordinance is valid under Virginia Law"?

    See page four, section IV.
    Why open carry? Because 1911 > 911.

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    AbNo wrote:
    What the hell? How is it that "the Norfolk ordinance is valid under Virginia Law"?

    See page four, section IV.
    That's the defendants assertion. The court is just re-stating a summary of the City's list of reasons. Which is kind of funny given that the Citymanager or somebodyapologized and said not long after the incident something to the effect Chet wasn't breaking the law.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    So basically, this judge is either ignorant of, or purposefully ignoring VA State law?
    Why open carry? Because 1911 > 911.

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