Friday, June 27, 2008


Maybe-- 2 1/2?-- cheers for the Heller decision. A lot of people still want to load it with enough restrictions to make it meaningless, but at least the principle is affirmed.

Funny how so many people want the WRONG interpretation to be kept-- even though most scholarly opinion, including that of such honest liberals as Laurence Tribe, affirms "originalist "intent.

Stingray of the Nerds has a more rigorous take here. I',m inclined to agree, with LabRat's caveat about violent felons.

Lots on deck, from lizard pix to Albanian warrior virgins to bird phylogeny, soon...


PBurns said...

The Supreme Court decision is here >> and it's worth reading as it's well written.

I am noticing how few folks are linking to it. The sobering language from Scalia (the most conservative member of the Court, a gun-owner, and a bird hunter) is right at the top:

"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."

In short, almost every restriction, licensing, and local ban in the country will stay in place and has now been positively affirmed as being legal and OK by the most conservative court in out lifetime.

A right to carry a concealed weapon? There is no right says Scalia. Right to any gun imagined? There is no right says Scalia. Right to take a gun with you into public federal and state buildings, churches, schools, and airports? There is no such right says Scalia. A right to sell your gun to anyone you want without the feds or the state intervening? There is no such right says Scalia.

Bottom line: Nothing has changed other than the NRA no longer has as good a fund-raising mesasage because it's clear the guns are NOT going to be taken away. Ever.


LabRat said...

I agree, it is wonderfully written and well worth reading the whole thing, although poor Justice Stevens took a beating enough to make even me wince a little.

I disagree, though, that the opening section is meant to rule now and forever that all such restrictions are now beyond doubt, but rather to make clear that the Heller opinion itself does not address them. The case itself was VERY carefully handpicked and tailored to make sure that it didn't hinge on any legal question other than whether the second amendment described an individual or collective right- which is why "Parker vs D.C." became "Heller vs D.C."; all the other original plaintiffs in the Parker case had a case that wasn't as clear-cut as Heller's. Perhaps more importantly to getting the court to actually rule on the matter, the "collective right" interpretation had been explicitly upheld by lower courts but never the Supreme.

What Heller actually decided was that, if the second amendment explicitly grants an individual right, D.C. cannot arbitrarily deny a normal individual a weapon for home defense by first requiring registration and licensing, then prohibiting registration of a broad class of weapons ordinarily used for the purpose, then denying licensing for no particular reason other than "because", then requiring that any other weapon be kept in a state of functional uselessness. This kind of reasoning becomes most explicit a bit further into the ruling:

"Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56-64."

The plaintiff and the nature of the complaint may be nearly irrelevant to the two sides of the battlefield, but certainly not to the Court.

Scalia's full majority opinion- which reveals him to be nothing if not a meticulously careful wielder of legal language- contains plenty of meat for future cases to rule on further details of what a second amendment now firmly held to be an individual right protects- the dissections of the meanings of "keep" and "bear" arms may be the next targets, or possibly licensing, as no one needs a license to exercise any of the other individual rights.

Heller is already major enough that a lawsuit against Chicago's draconian rules is already in the pipes, and San Francisco and New York are the next obvious targets. When the SC is working well, it's not uprooting any more established law than absolutely necessary, and this will be a lot of change and chaos.

Nothing's going to change overnight, not much is going to change this year, and I wouldn't expect to see much change this decade. Nothing more's going to change at all from here because it's now all settled? I doubt that.

Mike Spies said...

pta[i]Heller[/i] has moved the markers in the gun control argument, without any doubt. I read the entire decision with morning, and am pleased that SCOTUS went straight to the heart of the debate and affirmed that this is a 'natural', pre-existing right that is not predicated on any sort of militia association. They went further to define the meaning of militia to mean citizenry, and state to mean the body politic - not a specific governmental organization.

Further, the held that the requirements for trigger locks and disassembled storage - as required in DC, California, Illinois, etc. - are inconsistent with the right to bear arms in defense of a most essential right - the right of self defense.

I hear a lot of skepticism regarding this announcement, but, while it does not address many peripheral issues, the holding goes exactly to the heart of the matter, and this interpretation is unlikely to change any time soon.