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D.C. Gun Law Is Unconstitutional No Matter How You Look at It
A couple of preliminary observations about today's ruling in D.C. v. Heller:
1. The Court does not resolve the issue of what level of scrutiny should be applied to purported violations of the Second Amendment, because it concludes that D.C.'s firearm restrictions, which effectively preclude keeping a gun in the home for self-defense, are so extreme that they would be unconstitutional under any level of scrutiny.
2. The Court explicitly says that laws prohibiting concealed carry, banning gun possession by "felons and the mentally ill," barring firearms from "sensitive places" such as schools and government buildings, and regulating the sale of firearms are consistent with the Second Amendment. It also suggests that banning "unusual and dangerous weapons," as opposed to weapons in common use for lawful purposes, is permissible. Whether that means, say, bazookas or guns arbitrarily designated as "assault weapons" is one of many details that will have to be worked out by the courts.
|6.26.08 @ 11:08AM|#
Aside from a few draconian areas of the country, Heller was
always going to be a moral victory for whoever won, with little
actual importance. If the gun control side had won, they'd still
have to deal with the fact that gun control is politically
unpopular in large parts of the country.
We won today, but its not going to have an a big impact in real
life. Sure, D.C. has to issue permits. But do they have to fund the
office to issue permits? What if it takes them 15 years to getting
around to doing it, etc... I don't see a whole lot of real life
impact in this case, except now we can compress the individual
rights argument down to "Heller" when we get into an argument about
it.
|6.26.08 @ 11:09AM|#
The rather shocking thing is that four of the justices voted to
ignore the second amendment. FUCK THEM.
-jcr
Abdul|6.26.08 @ 11:09AM|#
It also suggests that banning "unusual and dangerous
weapons," as opposed to weapons in common use for lawful purposes,
is permissible. Whether that means, say, bazookas or guns
arbitrarily designated as "assault weapons" is one of many details
that will have to be worked out by the courts.
The most recent 2nd amendment case prior to this one already ruled
that a sawed-off shotgun was not covered by the 2nd Amendment.
Unless Heller overruled that, laws prohibiting "assault weapons"
are likely to be okay.
|6.26.08 @ 11:11AM|#
Sure, D.C. has to issue permits. But do they have to fund
the office to issue permits?
Foot-dragging to deny citizens their constitutional rights can be
challenged in court as civil rights violations.
-jcr
Reasonable|6.26.08 @ 11:17AM|#
The rather shocking thing is that four of the justices voted
to ignore the second amendment.
No they didn't at all. They simply took a different view of it than
the other five.
I happen to fully agree with the decision today, but it's all or
nothing attitudes like yours that make it difficult for the rest of
us to convince the other side that at the core of the 2nd amendment
is the issue of self defense, and not a carte-blanche right to be
armed to the teeth.
FUCK YOU.
robc|6.26.08 @ 11:21AM|#
Reasonable,
The core of the 2nd amendment is a carte-blanche right to be armed
to the teeth.
robc|6.26.08 @ 11:23AM|#
NM,
I would say, it seems about the best we could hope for.
Confirmation of an individual right but doesnt rock the boat in the
majority of the country (by area) that doesnt have stupidly
oppressive gun laws.
Jerked Quisling|6.26.08 @ 11:26AM|#
I happen to fully agree with the decision today, but it's all or
nothing attitudes like yours that make it difficult for the rest of
us to convince the other side that at the core of the 2nd amendment
is the issue of self defense, and not a carte-blanche right to be
armed to the teeth.
FUCK YOU.
Thank you, Uncle Tom. We nigguhs ca has a little freedoms, but we's
should't go insistin' on mo' than massa' allows.
Yeesh.
|6.26.08 @ 11:29AM|#
"...amendment is the issue of self defense, and not a
carte-blanche right to be armed to the teeth."
So what, in your opinion, is the proper amount of armament for self
defense? A .22 pistol? A shot gun? What gauge? Should the person
trying to protect themselves be concerned about leveling the
playing field with their attacker?
|6.26.08 @ 11:29AM|#
The only thing stopping many areas from completely banning guns
is the existence of the Second Amendment. Had it been ruled that it
is a "group right," you can be sure that many places would
immediately move to ban all guns.
By the way... how is that "group right" thing working out for the
Michigan Militia and David Koresh?
|6.26.08 @ 11:32AM|#
This is not exactly the sweeping victory I'd hoped for
not a carte-blanche right to be armed to the teeth
um what part of "shall not be infringed" do people not get.
I had hoped to see this play out like Roe v. Wade, with the
anti-gunners spending the next 25 years bitching, moaning,
protesting, and arguing about fringe issues like whether there
should be background checks before machine gun sales. (Think of
machine guns as a second-amendment version of a partial-birth
abortion for hoplophobes)
They should have overturned Miller and given us our full rights
back. What we got is better than a kick in the teeth, though.
Neu Mejican|6.26.08 @ 11:33AM|#
At second blush, they came to the correct conclusions but
Scalia's justifications for those conclusions are pretty piss
poor.
I'll have to read the dissent.
Episiarch|6.26.08 @ 11:36AM|#
I had hoped to see this play out like Roe v. Wade, with the
anti-gunners spending the next 25 years bitching, moaning,
protesting, and arguing about fringe issues like whether there
should be background checks before machine gun sales.
Me too, but I knew it wasn't going to work out that way. However, I
would have liked some language about other ways that states and
localities essentially ban gun ownership, such as fees, paperwork,
approval from the local sheriff, and the other crap they do besides
"locked and disassembled".
They should have overturned Miller and given us our full rights
back.
At the very least removed the idiotic bans on sawed-off shotguns
and silencers.
Neu Mejican|6.26.08 @ 11:39AM|#
um what part of "shall not be infringed" do people not
get.
[sigh]
Infringe: 1. To break; to violate; to transgress; to neglect to
fulfill or obey; as, to infringe a law or contract.
Unless the government "breaks" your right, they are not going
beyond the common meaning of the word. Heller would be an example
of such a law.
Ironic|6.26.08 @ 11:40AM|#
Perhaps it will soon be safe to walk the streets of Philadelphia, New York City, Chicago and D.C..
db|6.26.08 @ 11:43AM|#
Forgive the cross post, but H&R brought it on themselves by
having multiple threads on this topic:
I suspect that this will lead to a state-level push requiring
registration and licensing (probably prohibitively expensive) of
all firearms. The Court appears to have erred badly in not really
addressing the registration and licensing issue. Acknowledging that
there exists a class of "...weapons not typically posessed by
law-abiding citicens for lawful purposes..." creates a gaping hole
into which legislatures could conceivably dump any arm posessed by
the citizenry in numbers less than some arbitrary threshold.
The upside may be that there exists a sizeable inventory of
registered machineguns (at last count approximately 180,000) that,
by their lawful registration, by definition fit the "lawful
purposes" requirement. This could perhaps lead to a subsequent
court decision striking down 922(o) (1986 machinegun ban). However
this would require a non FFL to submit an application to
manufacture a machinegun, be denied by the ATFE, and then to
challenge such denial in court. This would be a project where venue
shopping would be key.
Neu Mejican|6.26.08 @ 11:44AM|#
Having walked the streets of Philadelphia, NYC, Chicago, & DC...I would say we are half way there already.
|6.26.08 @ 11:44AM|#
There's no way that the court would have ruled in an absolutist
manner.
No matter how unconstitutional parts of the NFA and GCA are,
they're not going away any time soon.
But it doesn't matter. This is all about baby steps.
robc|6.26.08 @ 11:47AM|#
NM,
At second blush, they came to the correct conclusions but
Scalia's justifications for those conclusions are pretty piss
poor.
I thought his historical smack-down of Stevens was pretty dead on.
What justifications did you have problem with? The only problems I
had was that his evidence seems to suggest a much wider ruling than
the narrow one he wrote (which I think was necessary to get that
5th vote).
G. A. Harrison|6.26.08 @ 11:48AM|#
I think "REASONABLE" is missing an important point. I don't
think that many of us would disagree with a state's right to
reasonably regulate ownership and possession of firearms. The
problem will come when the same activist judges, who literally make
up individual rights and want to make almost any issue part of
Federal jurisdiction, claim that the states should regulate what is
clearly a fundamental right.
The 2nd Amendment is pretty explicit. If state or local
jurisdictions can take that right away from us, why can't they take
away our rights to speech or assembly? Why can't they break down
our doors without a warrant?
Elemenope|6.26.08 @ 11:53AM|#
What kicks me senseless about this is the number of people who
believe that ordinary folk can be armed to the teeth, and yet are
somehow untrustworthy when it comes to dealing with punitive awards
in court. I'll trust them with my life, but not my purse!
Anyway, like abortion, gun rights always brings out the stupid in
people. It is indeed a fundamental right, but one that in most
places in the country is exercised without significant encumbrance,
as is clearly countenanced by the sheer number of homes with a gun,
nevermind the sheer number of guns in private ownership. Chipping
away at urban gun laws is a worthy task, but frothing at the mouth
about how it's either semi-autos or death is really quite
counterproductive.
robc|6.26.08 @ 11:53AM|#
What the fuck did Breyer think he was going to pull by referencing colonial fire-safety laws?
|6.26.08 @ 11:55AM|#
The decision upholds purchase restrictions and licensing. These will be used to make an end run around the ruling, and result I'm sure was not unintended by the majority.
|6.26.08 @ 11:58AM|#
I am buying a large number of Brady campaign bumper stickers that we can place on the cars and over the thresholds of our many statist friends here in DC. I think criminals should be informed, as a public service, that these gun control supporters are still available for rape, maiming, robbery and murder, as they will not but a weapon. Just a voluntary exchange between consenting sado-masochists.
Neu Mejican|6.26.08 @ 12:01PM|#
robc,
I just felt he was engaged in some pretty weak attempts at semantic
analysis and that his justifications and conclusions didn't meld
into a whole very well...
c.f., your sense that he is talking about a justification for a
broader ruling, but then makes a narrower conclusion.
Dylan|6.26.08 @ 12:02PM|#
What kicks me senseless about this is the number of people who believe that ordinary folk can be armed to the teeth, and yet are somehow untrustworthy when it comes to dealing with punitive awards in court. I'll trust them with my life, but not my purse!
Um...people with guns can be arrested or shot if they go crazy.
People with seats in the jury box...can't.
Zubon|6.26.08 @ 12:02PM|#
No, I'm not engaging in celebratory gunfire.
Doesn't that sound like The Onion article reporting on this ruling?
"12 Killed in Gunfire Celebrating the 2nd Amendment"
|6.26.08 @ 12:04PM|#
Let me add to the no doubt moronic discussion that will be
generated by this news item, that individuals and private
organizations should be able to ban or regulate carrying weapons
onto their property -- just as they should be able to ban Nazi
marches, vagrants, religious ceremonies etc.
The problems of what protective technologies should be carried
around in "public" is just another tragedy resulting from "public"
property. You make the streets, parks,sidewalks, and schools
government owned, and then you fret that everyone cannot agree on
where you can pray, march, carry which weapons (mace?, guns?
knives?) to protect yourself etc.
Whether you can have a gun outside of your home is a decision that
should be made by toll bridge owners, downtown business district's
that own the sidewalks, home owners' associations, etc.
robc|6.26.08 @ 12:07PM|#
NM,
I made the comment about a dozen pages into it that it seemed like
every semantic 2nd amendment argument between non-lawyers that I
had ever been involved in. Other than the references to 300 year
old documents.
That said, Stevens got his semantic ass handed to him. It took 56
or so pages to prove the semantic argument for an individual right,
then Scalia got around to the actual case and at that point I kind
of agree with you. He went, individual right, we throw out the DC
law, but we arent going to mess around with other laws or deal with
incorporation of pick a scrutity standard, but I will mock Breyer
for trying the lowest standard ever for a constitutional right
(deservedly so).
Elemenope|6.26.08 @ 12:09PM|#
Um...people with guns can be arrested or shot if they go
crazy. People with seats in the jury box...can't.
Wow. What a comfort for the dead guy.
Context is everything, Dylan, and you can be forgiven for not
knowing that this is a reference to a recent thread regarding
Exxon's judgment getting pared down to peanuts. Wherein some fellow
actually argued that punitive damages are "too complicated" for
either judges or regular folk to handle.
I'm simply pointing out I hope that a trigger safety isn't as
complicated, or we're fucked.
gmatts|6.26.08 @ 12:10PM|#
I think that those celebrating this ruling as a victory are
going to be a bit disapointed when this ruling is cited in the
future by those supporting gov't control and regulation over the
use of a citizens right to bear arms.
The majority makes it pretty clear that the gov't has rather vast
powers to regulate a citizens desire to bear arms in terms of
where, when and how he/she would like to exercise their 2nd
ammendment right.
All this ruling did was place a mild wrsit slap on the gov't.
robc|6.26.08 @ 12:12PM|#
Elemenope,
While not commenting on the specifics, I will say that 10% of a
companies quarterly profits (at the peak of the companies earnings)
is not "peanuts".
Paul|6.26.08 @ 12:15PM|#
barring firearms from "sensitive places" such as schools and government buildings, and regulating the sale of firearms are consistent with the Second Amendment
Told you.
The entire city if DC is now declared a "sensitive place".
Rhywun|6.26.08 @ 12:17PM|#
Perhaps it will soon be safe to walk the streets of Philadelphia, New York City, Chicago and D.C..
NYC is wayyy safer than those other cities - and safer than every
other city over (I forget the exact figure) a few hundred thousand
people - which just goes to show there's a whole lot more to
"safety" than just guns.
|6.26.08 @ 12:19PM|#
What kicks me senseless about this is the number of people
who believe that ordinary folk can be armed to the teeth, and yet
are somehow untrustworthy when it comes to dealing with punitive
awards in court. I'll trust them with my life, but not my
purse!
You don't need to trust someone to honor their right to possess
something. It's when they act upon another that issues arise.
Punitive damages are all about acting on others. Gun ownership is
not.
Guy Montag|6.26.08 @ 12:21PM|#
The most recent 2nd amendment case prior to this one already
ruled that a sawed-off shotgun was not covered by the 2nd
Amendment. Unless Heller overruled that, laws prohibiting "assault
weapons" are likely to be okay.
Actually, from what I remember of a discussion about that case
several years ago, it was NOT ruled that a sawed-off shotgun was
not covered by Amendment II, mainly because the case that it was a
common defensive weapon issued to infantry soldiers was not brought
up.
Had it been shown that it was indeed a common personal defense
weapon of the type mentioned in other law and rulings, it would
have been fine.
This was onw of the three cases mentioned by Justice Scalia in 1(f)
of the decision (page 2 of the online version).
Guy Montag|6.26.08 @ 12:25PM|#
The entire city if DC is now declared a "sensitive
place".
Well, they are a pretty sensitive bunch over there.
Elemenope|6.26.08 @ 12:28PM|#
While not commenting on the specifics, I will say that 10%
of a companies quarterly profits (at the peak of the companies
earnings) is not "peanuts".
It is when compared to the damage they had wrought.
Dello|6.26.08 @ 12:28PM|#
"It also suggests that banning "unusual and dangerous weapons,"
as opposed to weapons in common use for lawful purposes, is
permissible."
Um, so since the cops around Blackwater headquarters (and other
areas, no doubt) apearently use automatic rifles (AKs and
Bushmasters) for what we can only assume are "lawful purposes",
does that mean that I can have one now?
Nigel Watt|6.26.08 @ 12:30PM|#
It is when compared to the damage they had wrought.
Which they have already paid billions for.
Guy Montag|6.26.08 @ 12:31PM|#
Um, so since the cops around Blackwater headquarters (and
other areas, no doubt) apearently use automatic rifles (AKs and
Bushmasters) for what we can only assume are "lawful purposes",
does that mean that I can have one now?
I think we need to get a 1986 law thrown out too, possibly with
this ruling.
When I win the lottery I will try to buy one and see how close I
get to a Supreme Court hearing.
robc|6.26.08 @ 12:32PM|#
Elemenope,
2x damage they had wrought is peanuts?
(1x for punitive, 1x for compensatory)
Paul|6.26.08 @ 12:33PM|#
Did you guys catch this blistering quote?
"Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose."
Lmnop:
Chipping away at urban gun laws is a worthy task, but frothing
at the mouth about how it's either semi-autos or death is really
quite counterproductive.
Agreed, why then do liberals froth at the mouth so about said
semi-autos?
|6.26.08 @ 12:34PM|#
"Although we do not undertake an
exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should 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 ..."
get ready for the new health care nazis to do mandanatoray mental
test on ALL children so that they can classify them as mentally ill
in one of the hundreds of new mental ilnness created every
year.
|6.26.08 @ 12:36PM|#
Agreed, why then do liberals froth at the mouth so about said semi-autos?
General ignorance and therefore utter fear about internal
combustion.
Guy Montag|6.26.08 @ 12:36PM|#
Agreed, why then do liberals froth at the mouth so about
said semi-autos?
See? I am not a liberal! I drool when I see auto-loaders, not
froth, drool!
Neu Mejican|6.26.08 @ 12:39PM|#
Regarding punitive damages...
See the recent posting on Bowles look at morality and
economics.
If the fine is not large enough it will remove the moral dimension
and give the company the impression that it can buy its way into
environmental abuses by simply including the fine and the cost of
the damage into their accounting formula.
The punitive damage should hurt BAD to send the moral message that
the behavior is unacceptable, a moral wrong. In other words the
fine needs to be a punishment, not just another line item.
Michael Ejercito|6.26.08 @ 12:42PM|#
Foot-dragging to deny citizens their constitutional rights can be challenged in court as civil rights violations.
How so?
Is it unconstitutional for a county clerk to foot drag in
registering black voters?
|6.26.08 @ 12:47PM|#
They simply took a different view of it than the other
five.
That would be the view that it doesn't mean what it says.
FUCK YOU.
In your dreams.
-jcr
Guy Montag|6.26.08 @ 12:53PM|#
Guy Montag|6.26.08 @ 12:54PM|#
Among the likely regulations: Gun owners would have to be 18 or older and could not have been convicted of a felony or any weapon-related charge or have been in a mental hospital for the past five years. Registrants also will be finger-printed and required to pass a written test to be sure they understand the city's gun laws, Nickles said.
At least initially, he added, residents would be limited to one handgun apiece. The city will set up a hotline for firearm registrations.
From story linked to at 12:53pm
hamilton|6.26.08 @ 12:55PM|#
As an aside, and speaking as someone who supports (the outcome of, though not the logic of) both this opinion and the death penalty opinion yeaterday: if the rant is that yesterday's opinion constitues "Judicial activism" in interpreting an amendment contrary to an elected representative body's decision, why is today's decision not the same?
Elemenope|6.26.08 @ 12:57PM|#
Which they have already paid billions for.
Agreed. I think that private (effective) attempts at restitution,
which in this case includes cleanup efforts, should help defray the
cost of judgment. This seems particularly applicable a principle
for this sort of case (where the primary harm is to things held in
common), but probably not so much for private harms.
Is it unconstitutional for a county clerk to foot drag in
registering black voters?
Uh, yeah. Like he said. As far as trying it, one would have to show
that the foot-dragging was racially motivated, either by
establishing a pattern of behavior on similar cases or through
comments and documents to that effect.
|6.26.08 @ 1:04PM|#
Is it unconstitutional for a county clerk to foot drag in
registering black voters?
Of course. Rights delayed are rights denied. Otherwise, we would
still be waiting for the millionth draft of the plan to begin
desegregating schools in Boston.
|6.26.08 @ 1:05PM|#
Although I'll never get to have that chimney mounted remote control machine gun for home protection I've always dreamed of, I pretty sure that the right to have a handgun in our homes to project us, and to use it when necessary is written in stone now.
|6.26.08 @ 1:09PM|#
they didn't have to draft many plans to desegregate boston...all
the white people moved to one of the surrounding 100 separate
school districts.
The single desegragated school district in Montgomery Alabama is
the same geographical size as about 100 districts in the boston
area.
Gabe Harris|6.26.08 @ 1:10PM|#
this affirms the rights of the feds to take away the 2nd
amendment for any mental illness...I used to wonder why the feds
are so concerned with diagnosing every intelligent, athletic male
in the country with ADHD before they get out of junior high
school.
now we know.
|6.26.08 @ 1:12PM|#
Of course. Rights delayed are rights denied. Otherwise, we
would still be waiting for the millionth draft of the plan to begin
desegregating schools in Boston.
Yeah, except that conflict is easier to resolve when the conflict
is between Federal and State or State and Local. In NH, there's an
ongoing fight over school funding, which the court ruled was
unconstitutional in the early 90's. The state has yet to resolve
it. Not for lack of trying, there's just no consensus on the issue
to enable the necessary legislation.
Thus, Court vs. Executive battles, at the same level of government,
can clearly last for years, since the Court has no force behind
them beyond their role as a legitimate authority.
|6.26.08 @ 1:13PM|#
are people following you? you must be paranoid schitzophrenic...you don't have the right to have a handgun.
|6.26.08 @ 1:20PM|#
I suspect that this will lead to a state-level push
requiring registration and licensing (probably prohibitively
expensive) of all firearms. The Court appears to have erred badly
in not really addressing the registration and licensing
issue.
You are right that the Court did not address that issue, and at
first sight left the door open for the State to utilize such
tactics. However, it can be argued that a licensing law that makes
it prohibitively expensive to buy a gun for any citizen violates
the 2nd amendment in exactly the same way as gun lock requirements
and direct hand gun bans violate the 2nd amendment right of people.
It may make such tactics more difficult in the future, not easier.
And for that, I am glad.
So, the SCOTUS gave Americans back their 2nd amendment and habeas
corpus...
Now, next on the agenda... the 4th amendment, the 5th amendment,
the 10 amendment... the 1st amendment...
robc|6.26.08 @ 1:38PM|#
NM,
You misread Bowles. The size of the fine doesnt matter. Both a
small and large fine "remove the moral dimension" and turn it into
a business expense. In the case of the large fine, its just an
expense that you cant afford so you protect against.
|6.26.08 @ 1:41PM|#
It says that DC's ban would be unconstitutional under any level
of scrutiny used for any enumerated rights.
If this means substantive due process under the fifth, the standard
could be as weak as rational basis. It is hard to square that with
the ruling since rational basis can be used to support any law not
completely divorced from reality and the burden of proof is on the
petitioner, not the gov't. Heller would have to prove that there is
no rational relationship between the gun ban and the legitimate
government interest of preventing crime.
This ruling seems to suggest that we are looking at at least
intermediate scrutiny (substantial relationship between the law and
an important gov't interest with the burden of proof on the
gov't).
The other unanswered question in this 64 page ruling is if the
right applies to state under the 14th.
Sigh. It looks like we have two decades of rulings on this matter
to really muddy the issue.
Note to future law students: pay attention to these cases. They
will be on the Constitutional Law final.
Mr. X|6.26.08 @ 1:48PM|#
Note to future law students: pay attention to these cases.
They will be on the Constitutional Law final.
After a couple of years, they will. Professors generally avoid
brand new shit.
Elemenope|6.26.08 @ 1:51PM|#
So, the SCOTUS gave Americans back their 2nd amendment and
habeas corpus...
This is deceptive hope indeed. To call the court that did the first
and the court that did the second "the same court" betrays the
obvious fact that the justices who voted yes on the first voted no
on the second and vice versa (except of course the ever-purple
Kennedy).
We can have a court that cares about habeas or a court
that cares about right to arms, but apparently outside of this
hideous monstrosity precariously balanced today, we are not ever
likely to have a court care about both at the same time again.
robc|6.26.08 @ 2:09PM|#
Elemenope,
We can have a court that cares about habeas or a court that
cares about right to arms, but apparently outside of this hideous
monstrosity precariously balanced today, we are not ever likely to
have a court care about both at the same time again.
The worst thing is that the justice who seems the least likely to
actually read the constitution or research past writings is the
only one on the correct side of both.
Elemenope|6.26.08 @ 2:26PM|#
The worst thing is that the justice who seems the least
likely to actually read the constitution or research past writings
is the only one on the correct side of both.
Well, it's a mad, mad, mad, mad world, isn't it?
|6.26.08 @ 2:53PM|#
So, the SCOTUS gave Americans back their . . . habeas
corpus
Sigh. No, not really. As far as I know, habeas corpus for Americans
has not been denied, even by the Bushreich, and was not the issue
in Boumedienne, which dealt with whether habeas corpus
extended to foreign nationals held in facilities under American
control.
C'mon, people. Reality-based, remember?
Guy Montag|6.26.08 @ 3:15PM|#
But R C Dean, remember, everybody is equal, everywhere. Even the
animals. Meat is murder, insurgents are freedom fighters and
unlawful combatants need the same protections as lawful
combatants.
Think of the Polar Bears!
Neu Mejican|6.26.08 @ 3:17PM|#
robc,
Regarding Bowles...
No, I don't think I misread Bowles, but your reading is not too off
base.
The size of the fine is a signal of the "wrongness" of the act
being fined. If large enough it can be a signal to the actor and
remind them of the moral dimension of their act. That's all any
punishment does, really, is remind the actor of the moral dimension
by imposing a cost.
IANAL|6.26.08 @ 3:44PM|#
Among the likely regulations: Gun owners would have to be 18
or older and could not have been convicted of a felony or any
weapon-related charge or have been in a mental hospital for the
past five years.
Interesting. Current Federal law requires a handgun purchaser
anywhere in the United States to be at least 21 and never
to have been convicted of a felony or spent time in a mental
hospital.
|6.26.08 @ 4:10PM|#
[sigh]
Infringe: 1. To break; to violate; to transgress; to neglect to
fulfill or obey; as, to infringe a law or contract.
Unless the government "breaks" your right, they are not going
beyond the common meaning of the word. Heller would be an example
of such a law.
No, "infringe" is not a synonym for "break". In common meaning, to
infringe is to somewhat violate or encroach upon, as witnessed by
these definitions:
Merriam-Webster's Dictionary of Law:
infringe -- to encroach upon in a way that violates law or the
rights of another
Dictionary.com:
infringe -- to commit a breach or infraction of; violate or
transgress
American Heritage Dictionary:
infringe -- to transgress or exceed the limits of; violate
|6.26.08 @ 4:45PM|#
Abdul wrote:
"The most recent 2nd amendment case prior to this one already ruled
that a sawed-off shotgun was not covered by the 2nd Amendment.
Unless Heller overruled that, laws prohibiting 'assault weapons'
are likely to be okay."
I disagree. "Miller" said that, if anything, the 2nd Amendment
protected the right to keep and bear weapons that might normally be
used in militia service. Check out the National Guard and police
SWAT teams. They have "assault weapons," even bigger and nastier
ones than those the much-maligned federal and state "assault
weapons" bans covered. We expect our militias to have such weapons.
So it seems to me that under Heller, individuals are also seen as
having rightful access to AKs and the like. We'll see what happens
when the inevitable challenges get to court. I am hoping that, here
in California, the trigger-lock requirement and the statewide ban
on assault weapons are overturned. Having to go to Nevada to shoot
AK-47s legally is a drag, and having a trigger lock on one's
firearm -- as acknowledged in Heller -- diminishes or negates a
firearm's effectiveness as a weapon of self-defense.
The point of Miller, by the way, was that a sawed-off shotgun was
an unusual weapon that was not normally carried by militia,
military infantry, etc. As noted by someone else above, had any
evidence been presented during the adjudication process to show
that such weapons were in fact used by US militia, the ruling would
almost certainly have gone the other way -- at least to the extent
that the justices relied on their "militia-class weapons"
argument.
Finally, I agree with Craig about the definition of "infringe." I
think that we will see cases that focus on this word to challenge
licensing practices in the relatively near future. If a license fee
or a non-violent felony can keep someone from legally owning a
firearm, for example, that certainly seems like unfair
"infringement" to me. As did another poster above, I worry now that
those who want stricter gun control will contrive to declare more
people mentally ill or lawbreakers, at least to the point of being
ineligible to exercise 2nd Amendment rights. That would be very
petty, but I've seen worse behavior by those who rule or would
rule, so I won't be surprised if it happens.
|6.26.08 @ 4:53PM|#
I did want to congratulate the court for upholding plain English and common sense, however. The Heller ruling appears to be the "partial loaf," for which "pragmatic" people are always exhorting libertarians to settle. The unequivocal declarations that the 2nd Amendment protects an individual right, and that the militia clause informs but does not restrict the RKBA clause, were right on and long overdue. Heller seems to have enhanced individual liberty, even if it did not go as far as some 2nd Amendment absolutists would like. Heller appears to be a step or two toward greater liberty, rather than the one step forward, two steps back "compromises" that we more usually get out of our political and judicial systems. (If anyone with sharper eyes than mine, however, sees this as a one-forward, two-back situation, please explain how and why! In that case, it's better for us all to know about it as soon as possible!)
Neu Mejican|6.26.08 @ 7:28PM|#
Craig,
Regarding infringe:
Break, breach, violate, trangress, whatever. None of these are
equivalent to "place a procedural requirement on" nor "limit in
specific ways" nor simply "encroach."
Your use of "somewhat violate" is telling as it does not appear in
any of the definitions you cite...all of which use something like
"exceed the limits of" and imply an excessive encroachment.
|6.27.08 @ 12:21PM|#
You gotta love people who insist that the meaning of a document
that people have been arguing over for years is plain and
obvious.
What is wrong with such people? Are they just to incredibly
intellectually insulated that they've managed to live for several
decades without actually being exposed to the other side's
arguments?
Are they so in love with their own supposed intellectual
superiority that they simply take for granted that a dissenting
opinion must not only be wrong, but be obviously wrong?
Either way, regarless of the issue, "What part of____________don't
you understand?" is functionally equivalent to announcing that you
don't understand the issue very well.
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