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Landmark 2nd Amendment ruling due this morning
Submitted by R. Neal on Thu, 2008/06/26 - 7:42am.
The U.S. Supreme court is expected to hand down their decision re. D.C. v. Heller this morning. UPDATE: Decision is in... The much anticipated (by gun enthusiasts and legal scholars) landmark ruling may decide a) whether sweeping gun bans by state or local governments are constitutional, and b) whether the "right to bear arms" is an individual or collective right. In other words, we may finally know what "A well regulated Militia, being necessary to the security of a free State" means, and whether "the people" means you and me or us. ("Shall not be infringed" seems pretty clear.) Scalia is said to be writing the majority opinion, suggesting a favorable ruling for gun enthusiasts. Or they could dodge the bullet, so to speak, and send it back to the lower court. This is a significant ruling, because it's the first time in the history of the Constitution that these issues have been addressed so specifically. SCOTUSBlog will be blogging it live. UPDATE: The Supreme Court has upheld the lower court on D.C. v. Heller which struck down the D.C. ban, meaning the 2nd Amendment protects an individual's right to posses firearms. UPDATE: The decision: "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditional lawful purposes, such as self-defense within the home. The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms." Wow. Guess they settled that quite definitively. Let the parsing begin! (Start with "within the home." Heh.) UPDATE: The "but": Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those UPDATE: The scorecard: SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined. |
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My bet: It will be 7-2 with the DC ban struck down, but with the government's ability to say when and where the right can be executed upheld. This would be like the "free-speech zones." Johnny Ringo? You down with that?
True happiness is knowing you are a hypocrite. -- Ivor Cutler
Wow.
I had that originally. But I thought that there may have been common ground in a couple of places. Seems that opinion leaves all other kinds of restrictions in place other than the DC Ban and ones like it, according to SCOTUSBlog. Now, did they or did they not just say that DC is a "free State?"
True happiness is knowing you are a hypocrite. -- Ivor Cutler
Now, did they or did they not just say that DC is a "free State?
I've been very busy today and have not had the chance to read the ruling, but on SCOTUSblog they are saying that the opinion leaves open the question of whether the 2nd Amendment is applicable to the states through the "incorporation doctrine."
Now given that the Supreme Court usually doesn't go beyond what is absolutely necessary to decide the case at hand, I would say, if SCOTUSblog is right, that the Supreme Court has NOT declared DC to be a state. If DC is a "state" then the Court could not invalidate the DC gun ban without finding that (a) the 2nd Amendment guarentees the individual right, and (b) that right is incorporated through the 14th so as to apply to the states. If DC is NOT considered a state, then a finding that the 2nd Amendment is incoporated is unnecessary.
So with a buttload of caveats, I'd say your friends are going to be disappointed to the extent that they thought Heller would be a backchannel route to statehood.
I think you are right, but Scalia does talk about corporation in the ruling. It's tricky as the amendment applies to the "Free States," but DC is not a State. It's something else. The logic is that since it has been acted upon as a "free State" is has become, de facto, a State and must be accorded the same representation. I am not saying this is true, but there's a reason Laurence Tribe switched from "collective" to "individual." This ruling is a way bigger can of worms.
Anyhow, I was just in a meeting with a professor who has a JD and does constitutional law and policy. His take was that this ruling was a bit more than even NRA types probably wanted as it leaves open DC's adoption of NYC-style licensure and permits. Big bucks. He agreed with your take (when we talked on the phone lately) that DC could say "OK. You can have the weapon in your house, transport it to your house to/from the gun shop, but not across the District line, and that's it. Anywhere else and you've committed a felony."
True happiness is knowing you are a hypocrite. -- Ivor Cutler
No decision yet. The first one was interesting though. They struck down the "millionaire's amendment" that relaxes campain finance contribution rules for opponents of candidates who spend more than $350K on their own campaign.
So, Heller is permitted to have the gun, but DC is permitted to set the rules for the permit. So, they just imitate NYC's law. Not much better. I think it was easy for the 4 to come down against this because, well, nothing much changed.
True happiness is knowing you are a hypocrite. -- Ivor Cutler
And there's a whole new term in the gun v. anti-gun lexicon: "dangerous and unusual weapons."
That's been around for a while, but I don't think it has ever appeared in a ruling. It all depends on what "dangerous" means and "unusual" means.
True happiness is knowing you are a hypocrite. -- Ivor Cutler
More: "Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional."
"a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body."
"We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."
This is mind-blowing in its judicial activism. Since the court has now specified the type, size, weight (ie, characteristics) of what the Second Amendment intended, how can any other "arms" be limited per the Constitution? Whatever the vagueness of the Second Amendment, it obviously didn't address the means by which one may arm oneself, as did this court. Wonder what Saturday Night Specials were called back then, because of course that has to be written in there somewhere. Doesn't it?
Guess I should start pricing grenade launchers on e-Bay. (I'm sure they'll change their weapons policy now to conform to the free law of the land.)
Go back and read the quote from the case posted by Metulj. There are no "absolute" constitutional rights - all such "rights" are subject to reasonable restrictions. What restrictions are "reasonable", of course, will be the subject of much litigation to come.
I hope you're right. It's hard be optimistic with a court that was installed across unprecedented party division. At least Slick Willie solicited conservatives for SCOTUS nominees who would get bipartisan support. He reached across the aisle; W doesn't in spite of his promise to.
What was in the dissent?
True happiness is knowing you are a hypocrite. -- Ivor Cutler
You know, in the last few weeks the Court has given us this and this, so to suggest as you seem to that the Heller decision comes from some kind of right-wing dominated Court is a bit silly. This is not a liberal Court, by any means, but it is certainly capable of decisions which liberals can celebrate.
I was musing to the wife about how this Supreme Court is very moderate if only because the poles of the range of decisions are so far apart.
True happiness is knowing you are a hypocrite. -- Ivor Cutler
It has certainly been one of the more unpredictable Courts in recent memory.
I can't find the quote I was looking at earlier or heard on the radio, but it's worse than dissent. In the majority opinion:
How many non sequiturs can they stuff in here? "amounts to"? All trigger locks, even those not yet designed, are inherently difficult and time consuming to remove? Popularity of weapons of choice (which itself is debatable) divines new wording and intent from over 200 years ago? Wouldn't marijuana be inherently constitutional because of the right to pursue happiness?
This is bullshit written by a bunch of Monica Goodling clerks.
All trigger locks, even those not yet designed, are inherently difficult and time consuming to remove?
Some trigger locks are activated by a ring worn by the user. Anyone else attempting to use the gun will find it locked. I don't remember the brand, and they are more expensive, but well worth the added safety.
To the extent that some decisions could be called left-pleasing or whatever (and I'm not sure I'd characterize any that way), those could most all be attributable to "strict constitutionalist" interpretations (or whatever the phrase is they claim to represent). I'd say any such decisions from this court have been more libertarian than liberal.
From the ruling:
If the ruling is faulty because of some trigger locks, how can all trigger locks violate the Second Amendment, just as declared?! After all, if some
firearms"arms" make allfirearms"arms" applicable under the law, don't some trigger locks make all of them constitutional?I guess it will take a future SCOTUS not dominated by elite ideologues with their heads up their asses to fix things.
Why do you hate freedom?
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