Thursday, June 26, 2008
DC v Heller
Held:It's a day of joy for gunowners. Many constraints on this right are noted, but overall this is the ruling gunowners have been craving - the Second Amendment refers to an individual right. Eugene Volokh is cited!
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, butdoes not limit or expand the scope of the second part, the operativeclause. The operative clause’s text and history demonstrate that itconnotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physicallycapable of acting in concert for the common defense. The Antifederalists
feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and beararms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediatelyfollowed the Second Amendment. Pp. 28–30.
The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.
Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.
None of the Court’s precedents forecloses the Court’s interpretation.
Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.
So all you gunnies can settle down to roll around in Scalia's scholarly exercise in the explication of the blindingly obvious. Enjoy his merciless flogging of Stevens:
Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded inusing select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31–53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103–106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms.Really, it's worth the read. DU has many avid RTKB supporters, and the thread on this decision is nearing 300 comments. To a certain type of person, this is manna from heaven. To another type of person, it is coals of fire:
By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Black-stone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.
120. What a happy day! I couldn't have HOPED for a better ruling!Coals of Fire:
It would have been nice if they somehow could have added 14th amendment incorporation, but that wasn't the question in front of them.
OUR RIGHTS ARE SAFE!!!
I am SO stoked today. I'm walking on clouds!
2. It is just what BushCo and minions ordered!!!The debate gets heated. One guy chimes in a la Europe:
Tell me again how there was no difference between Bush and Gore ...or Bush and Kerry!!!!!!!!!!!
They have made a mockery of the Supreme Court..
Only political solutions and peaceful solutions will ever do anything. Meanwhile, you'll feel safe thinking you will know what to do when that Hollywood script presents itself. I find this whole debate laughable.Another:
No wonder America has selected the likes of Bush for two terms. Everybody thinks they are John Wayne.... FEAR without THINKING. More guns will only make us less secure and de-evolved as a society. May as well get rid of the Police Force too... who needs their protection anymore, we'll just privatize security and leave personal security up to the individual.
123. Kind of a moot point...But wait!! The gunnies have been researching the point and fire back with Gandhi quotes:
... since gun nuts don't wish to avail themselves of the services of police, preferring instead to just blast away at anything that moves and then pat themselves on the back for having defended themselves. It's so much tidier that way: with your victim dead, there's no way s/he's going to contradict your side of the story. With police, you've got all of those inconvenient things like due process of law, it's just a nuisance. Gun owners don't need no stinking badges, they have an innate sense for who deserves to die, no need to muddy the waters.
I see you are a fan of Gandhi. So am I:And another commenter:
"Taking life may be a duty...Suppose a man runs amuck and goes furiously about, sword in hand, and killing anyone that comes in his way, and no one dares to capture him alive. Anyone who despatches this lunatic will earn the gratitude of the community and be regarded as a benevolent man." -- Gandhi, M., SELECTIONS FROM GANDHI, by Nirmal Kumar Bose, Navajivan Pub. House, Ahmedabad, 1948.
"Among the many misdeeds of the British rule in India, history will look upon the Act depriving a whole nation of arms as the blackest." -Mahatma GandhiThis is too much!! Not only do the gunnies want to spray the streets with fire and mow down innocent bystanders, now they're torturing Gandhi posthumously!! The viciousness!
198. Ironic...Most of the commenters are favorable, but our Gandhi-deprived individual is inconsolable:
... that out of of all of the teachings of a man renowned for his abhorence of violence and devotion to peaceful resolutions of disputes, even at the cost of self-sacrifice, you should latch on to that one quote. Ghandi must be spinning in his grave.
114. Actually, this was too right-wing for even the bushistasSo it goes. The irony of the above exchange is that it was a policeman who challenged the handgun ban. He wanted to keep one in his house.
They opposed this, as it renders unconstitutional any attempt to regulate any weapons in anyone's hands. The shrub's crazy enough for that kind of reich-wing decision, but I think he must suspect that he's not terribly well-loved in this country and now that any escaped mental patient can assert a constitutional right to purchase a nuclear missile at any street corner ATM, he's got to be a bit worried. No, it took the Federalist Society half a century to stack the Supreme Court with wackos sufficiently right-wing to overturn the Constitution and 200+ years of legal precedent. A dark day for American jurisprudence indeed.
If any reader knows where to find these street corner ATMs that sell nuclear missiles, let me know, okay? In GA we don't have them. It must be a Yankee thing, which is surprising, because generally you can only buy fireworks in the south. And won't it be a nice Fourth this year?
In conclusion, I think the Democratic party should be very careful about yapping about this decision. Second Amendment types cross all parties and are generally quite serious about the topic, to the point of voting all the time, and they even know how to spell Gandhi's name. Plus, apparently many of them will be able to pick up nuclear missiles on street corners now, so we will have Gandhi-quoting gun nuts roaming the streets with handheld nuclear missiles frowning at politicians. Are those really the type of people politicians should needlessly irritate?
I mean, if we are supposed to be talking nice to the Iranians who want all the Jews dead, shouldn't we also appease the Gandhi gun nuts? Also, if the Iranian nutso should be allowed to have nukes, what is wrong with the Gandhi-quoting gun nuts having them? Some of these people are even Jewish, and some are gay, and everyone knows that gays have been historically discriminated against and are constantly being beaten to death on the streets of progressyve Amerikkka. Therefore, if they want weapons they should be allowed to have them, surely? If you're gonna appease, I say appease!!
I leave you with a Full Auto Car Shooting Okie style. The little girl is cute. I have no idea where I got that, so I apologize to some unknown blogger. I was saving it to send to my brother as soon as his baby-on-the-way is official (especially if a girl), but I share with the world to celebrate this occasion. Remember to stress the importance of ear protection when you are training your little girl on the proper launching of nuclear missiles.
Now if we could only get this court to agree that those words in the First Amendment "Congress shall make no law ... abridging the freedom of speech" mean that Congress shall make no law abridging freedom of speech, such as the right of citizens to band together to take out an ad right before an election mentioning their Congress Critter's voting record on say, gun rights, I'd be really happy. Really, really happy.
Why would you send your brother such a movie print? I am sure if he is to soon have a child he would not want child to be exposed to such items. If not, I am sure his wife will object, unless she is from a redneck area of your nation. Since your column is literate, I expect not.
Perhaps there is humor in you posting which I miss?
I wouldn't use Germany as a comparison to America pal. Not only that America came into this world shooting guns and chances are if we ever break up it will be the same way.
Germans ban of guns from 1938:
"Jews are prohibited from acquiring, possessing, and carrying firearms and ammunition, as well as truncheons or stabbing weapons. Those now possessing weapons and ammunition are at once to turn them over to the local police authority.
Firearms and ammunition found in a Jew’s possession will be forfeited to the government without compensation. Whoever willfully or negligently violates the provisions...will be punished with imprisonment and a fine."
-- NAZI WEAPONS LAW OF 1938 (Regulations Against Jews’ Possession of Weapons, 11 November 1938, German Minister of the Interior
No, it's the constitutional decision. The humor is that it took a few centuries for this to come up at the SC.
In parts of DC having a gun in your house for protection is a good idea.
My brother would laugh a great deal over that film. That's why I'd send it to him. Shamefully, he lives up in the Yankee north, and probably some of his neighbors don't have guns. In my part of the swamps, only criminals don't have guns. Heinlein was right - an armed society IS a polite society.
However my brother is a very tolerant individual, so I suppose he deigns to treat his neighbors well regardless of whether they have guns or not.
I's just a GA rattlesnake-stompin' gator-whackin' cracker, myself. Illiterate as they come. As for his wife, the first time a hostile-looking squirrel or a large spider comes near the window of the room in which her baby's lying I expect she will demand an Okie-like full auto sweep of the neighborhood.
My paternal grandparents were German. He was nearly killed during the troubles after WWI, when the FreiKorp were roaming Germany, when everyone was starving, and gangs of criminals were heading out to loot the countryside.
Then he got out to France, and then they got over here in 1929. His brothers weren't so lucky.
My grandparents' best friends were the K_____s, who lived in France. It wasn't their correct name - I remember my father telling me that. They came for a visit when I was in high school, and they were terrified of police.
My grandparents got one of their mothers out of Germany after WWII, and she lived with them until her death. One day a policeman came to the door. The police were going through the neighborhood because there had been a couple of cases of some contagious disease, and free immunizations were being offered by the city. They were going to every family to tell them about those shots. The old lady opened the door, saw the uniform, screamed, ran for her bedroom and could not be coaxed out for hours. She thought it was all happening again....
No, I wouldn't take Europe as a model. Really, I wouldn't.
And now they are talking about purging the Muslims the same way!! Some people never learn. They go from supine to vicious in an instant. There is something about an armed society that is different. I cannot put my finger on how it is different, but it is.
Especially charming was how lame the dissent was: Justice John Paul Stevens wrote that the majority “would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.” Uh, yeah, that's exactly what the Framers intended. That's why they wrote this amendment in the first place. What else can be read from the unambiguous text of the 2nd amendment?
Hooray! And M_O_M that video is awesome - where do I sign up for that? As for the little girl, some day she'll be a bigger girl who says "no" to some guy - said guy in for the surprise of his life when he tries to "convince" her she meant "yes"!
Guys, the great thing is that liberals, conservatives and libertarians all can agree on keeping the Bill of Rights. It's worth noting that they were an add-on in the beginning. The professional politicians are always going to find them inconvenient.
Yes, they're still in style.
I found Scalia's evisceration of the opposition hilarious. It makes me think he shoots.
Bob, welcome to the gunnie club. Nicest group of people you'd ever want to know. Bad victims, good friends.
Granted that gun laws like drug laws came from a desire to keep stuff out of the hands of the lesser humans, still we really do not know a lot.
The main one is what exactly are the regulations to be. For example, before the 1930 you could own a cannon or fully automatic machine gun. Do we go totally unregulated?
This decision seems to imply so. On the other if we regulate, where do we stop? Back to where we are today.
On that last point, maybe nothing has changed except you cannot forbid weapons in the home. Of course what about cannons and automatic weapons?
Gee back where we started. Going to be interesting.
Armed societies are seldom polite societies. RH was not a good predictor of society though a good read. Give the right wing success rate at war making, nation security and the economy, I figure they will muck this up too.
I have never figured out the right wing infatuation with arms given their poor economic treatment of gun owners. "Yea you all can have those guns, just ignore the rich folks up on the hill will ya while you get kicked out of your house and the kids go hungry." seem to be the thinking.
As to my person preference on the matter, if anyone has a cheap unregistered .50 sniper rifle, I have always wanted one. Single shot or bolt action just fine. Just having one will boost my damaged ego.
It's not that big a deal, I think, unless you are a locality like DC, which stopped giving out any handgun permits at all years ago, or NYC or Chicago.
I'm pretty certain that elephant guns aren't in common use, so in fact you probably don't have a constitutional right to 50 caliber. Unless you can get a bunch of Alabama citizens interested enough to buy, but I think the price of food and fuel is shutting that door right now.
It does seem to knock down trigger-lock provisions entirely, and if you have a gun, the decision seems to imply that you could keep at your bedside. Stuff like that.
I think you should read the whole thing, although at 150+ pages it is a slog. But go, for instance, to page 62, and consider how constitutionally important Scalia's comment on Breyer's dissent is:
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of
the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a
case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.
Stuff like these principles should also be applied to the First Amendment! Because you are right that the political establishment always overreaches. You're wrong in thinking it is just Republicans, but man oh man, the politicos keep trying.
The only thing keeping me from a .50 sniper rifle is the cost. Love to have one just to have one. Been wanting one for 20 years, just like I want younger women, faster horses and older whiskey. I have to make due with old PU truck, old fat wife and diet coke and dinky old .223 single shot #3 Rugers. http://www.wisegunsmith.com/images/G%20Brothers%20Ruger%20120502.JPG
.50 rifles are legal in most places. Even in UK.
The specified maximum diameter of an unfired .50 BMG bullet is .510 inch; while this appears to be over the .50 inch (12.7 mm) maximum allowed for non-sporting Title I small arms under the U.S. National Firearms Act, the barrel of a .50 BMG rifle is only .50 inches across the rifling lands, and slightly larger in the grooves. The oversized bullet is formed to the bore size upon firing, forming a tight seal and engaging the rifling, a mechanism which in firearms terms is known as engraving. Subject to political controversy due to the great power of the cartridge (it is the most powerful commonly available cartridge not considered a destructive device under the National Firearms Act), it remains popular among long-range shooters for its accuracy and external ballistics. While the .50 BMG round is able to deliver accurate shot placement (if match grade ammunition is used) at ranges over 1,000 yards (900 m), smaller caliber rifles produce better scores and tighter groups in 1,000-yard (910 m) competitions.
The Pubbies are in charge so I get to blame them. he he. When the Dems get in charge well I am equal opportunity type of fellow.
There is a theory of political power is that you are in power until your ideas no longer work. The GOP has reached that point. It happens mainly because of human nature, the folks in charge don't want to notice decay or allow change. So change flows to the other side.
So the lefties will win and left wing things will happen until they get old, set in their ways and we watch on what passes on TV 25 years from now as a new cycle starts.
Alright Anonymous from Germany, going back 100 years, count up all the people killed at the hands of their enemies. Now tally up all those killed by their own government.
Do the same thing for the last 10 years. Compare the results.
Congratulations, you just learned from history. Now you should understand why America's Founding Fathers were so interested in preserving individual rights and constraining the power of government.
But it's worth noting that virtually the whole of the rhetorical weight is dedicated to the issue of the individual right to self-defense. Reasonable, since this is the core of the issue. The actual decision on the case at hand is quite circumspect: registration is not necessarily a violation, but prohibiting the ownership or use for self-defense is. Moreover, Scalia states explicitly that regulations barring the ownership of firearms by felons, the insane, and such are permissible and that nothing in the decision should be read otherwise. (Good, so long as those provisions do not become overbroad; expect future cases on strict scrutiny and compelling interest.)
So while we can enjoy the smackdown, this will not be the last case we see. Expect to hear about may-issue versus shall-issue and whether mandatory training or proficiency requirements are onerous and impermissible. (Will anyone make a comparison with poll taxes?)
Just so you know, folks like myself and my husband that were raised around guns have a respect for them that you will never have. I've never had to shoot anyone and hope that I never will. But I will tell you that when I have had someone knock on my door in the middle of the night and been home by myself, I have been damn happy that I did have a weapon that I could use. Weapons are the great equalizer between the law-abiding and the criminals. You might want to take a look at that Argentinian blog I posted about in another comment, if you want to see how uneffective the police can be.
As for the video? Well, I was born and raised in Oklahoma. You might be surprised to learn that even in "redneck" areas of the nation, we still have literate people. Frankly, I suspect that the rednecks are a whole lot more fun to hang out with than you would be.
I think what's bothering a lot of people right now is that it seems to have stopped working.
The American electorate remains moderate and sort of old-timey Dem, so I would not be surprised to see a third party form at this juncture. It seems as if whichever party controls Congress is bent mostly on self-aggrandizement.
Teri, that Okie event is somewhat famous, at least to the point of being a vacation goal for some Georgians. I remember hearing it discussed.
As for the 50-calibers, I bet the gun-ban people would have tried to include those if they knew about them. The irony is that people who know nothing about guns are the ones who are afraid of them, so the laws don't make much sense. So I vote we don't talk about 50-caliber being legal most places.
I think kids naturally like to shoot. Adults who try it seem to like it too. Now, the Okie bash is not to my taste. If I were a kid I'd probably like it, though.
Tom, do you remember when being a liberal meant being tolerant, believing that all law-abiding citizens had the same rights, having a healthy suspicion of the government, believing that the power properly rested in the people, and that the government should serve the interests of the average citizen?
It seems a long time ago, doesn't it? One of the first things I did when I started earning was send a donation to the ACLU. Many, many moons ago....
Now the liberal idea of the average citizen seems to be that said average citizen is a dangerous, loutish dolt who must be chivvied and controlled like a three year old with emotional problems. We sure have come a long way, baby!!!
Anyway, the issue at hand, is more freedom to be sure. Now I frankly view gun ownership in the home much the way I do sex in the home. The government needs to keep out. Yet it was the good old conservatives who gave us both sex police and gun control. Check it out.
Now liberals in large cities in response to lots of crime, did tend to like gun control. Then again our conservative brethren in response to drug related crime and terrorist attacks seem bent on locking up everyone in reach and throwing away the key without the bother of a trial.
Never the less, folks are going to die in this expansion of freedom, simply because human beings being what they are will kill other human beings with whatever is at hand for emotional reasons. Gun are the most deadly.
One can stand 6 feet away and kill someone without getting blood on them with a gun. Any other weapon is up close and you feel the beating heart when you stick the knife in and see the light in the dying eyes.
So yea and I accept the trade off of human lives for more freedom.
It is important to realize this. Not to sugar coat it. Not to ignore it. Not to blame it on the 'liberals'.
But to accept the cost of freedom is often very high.
And while I cannot deny that someone will kill someone with a gun, the fact that gun violence and other violence is pretty widespread in many places in which guns are banned, and that the UK is now wanting to ban steak and cutting knives is a good clue that this is human problem and not a gun problem.
Furthermore, I think you have to count up the lives saved by allowing a population to have weapons. I left an uncharacteristically riled and impolite post at Carl's post in response to another comment.
The militia is real; it is necessary to the security of a free state. I saw it in action in Gulfport after Katrina, and I would hope to see it in operation again in any other such massive disaster.
In the end, it's only our fellow citizens to deal with security. After that experience, the word "militia" became a living reality to me.
Will somebody somewhere ever get killed by a gun originally bought legitimately for self-defense, then misused? Yes it will happen. But there is a lot of evedence that more guns in the hands of law-abiding citizens means less crime and less dead or raped innocents.
Bob, welcome to the gunnie club. Nicest group of people you'd ever want to know. Bad victims, good friends.
Thanks M_O_M. Everybody I've met has been real nice. Took me 52 years and evidence of an amazing impending economic cluster-f**k to get here - but I'm glad I made the trip.
The point from all of this is that individual rights are not safe from government--regardless of which party is in power. America's founders truly were enlightened.
Furthermore, what the hell is all of this all of this talk of this allowing people to own nuclear devices? That's the dumbest thing I've ever heard. Seriously. No it doesn't allow for citizens to own nuclear weapons.
If you want the police to protect you, that's your call, but keep this in mind: If you call 911 because your life is in eminent danger, not only are there issues regarding police response times, but if they said "Oh, I'm sorry, it's our lunch break. We won't be there," your family has no real legal recourse against the police department after you are dead. Your life and your safety are already ultimately your responsibility.
Oh yeah. The USA is not Europe. Quit whining about how we aren't doing things your way. We never will.
Yet they have. Many times.
"Shall not be infringed..."
Yet they have. Many times.
Madison owned a ship with cannon as a private citizen. Today that would certainly land his ass down in Guantanamo as a terrorist.
What the hell does "shall not be infringed" mean? What does "make no law" mean?
50 cal? Bad, can't have.
Machine gun? Bad, can't have.
[fill in the blank] can't have.
As long as the state decides who can or who cannot have what object, it's not a right.
The founders were quite clear that we the people could decide what hardware we wanted to have. Could say what we want. Without the state having any say.
Anything else is "infringement."
Anything else is making a law.
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