Read the Heller Ruling

Matt Welch | June 26, 2008

Here [pdf]. Then leave your legal opinions in the comments!

Comments

Other Matt|6.26.08 @ 10:40AM|#

Well, at least they clearly put to death this "collective rights" BS.

rj|6.26.08 @ 10:46AM|#

"Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation."

Sweeeet!!

Guy Montag|6.26.08 @ 10:48AM|#

Well, at least they clearly put to death this "collective rights" BS.

Only for those of us who understood it already. The flaiming, gun grabbing Leftoids will never get it or agree with it and will continue to try to subvert it.

drawnasunder|6.26.08 @ 10:53AM|#

Hello licensing and registration...

Elemenope|6.26.08 @ 11:01AM|#

From a thread below:

Sweet non-existent Jesus, I didn't think it would take 157 pages of Scalia and Stevens verbally beating the shit out of one another to get there.

Scalia is mostly right, but Stevens does make a good point re: the way "people" is interpreted is inconsistent by Scalia's formulation, since e.g. felons are part of the "people" for free speech but not for bearing arms. Scalia hung a great deal of his decision on parsing "people" as meaning the entire body politic, but then backtracks significantly when applying it to the 2nd.

|6.26.08 @ 11:04AM|#

Someone at DailyKos sounded somewhat reasonable and conciliatory about this:

"Both sides of the case read much more like a history lesson than an analysis of prior case law, and I'll get to the dissents in more detail as soon as I have time.

I encourage you to read this fully before rendering your opinions, because, well, it's a Constitution we're expounding here, and this comes up in other contexts as well. Sometimes in life (and in law), there are things that we might desire from a policy standpoint -- like certain forms of gun control, or restrictions on some election-related speech -- which are nevertheless forbidden by the Constitution. And as liberals -- unlike the other guys -- we ought not try to pretend that the Constitution doesn't exist when it gets in the way of our policy preferences."

Rimfax|6.26.08 @ 11:09AM|#

Scalia is an embarrassment. Having his name on the opinion is the worst possible scenario for gun rights, short of it being a dissent instead. As Elemenope points out, his own hypocrisy and irrational compartmentalization almost writes the reversal in the event that the court balance shifts.

ed|6.26.08 @ 11:09AM|#

...what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct. We affirm the judgement of the Court of Appeals. It is so ordered.

tarran|6.26.08 @ 11:10AM|#

I think I was right.

The court admits that people have a right to self defense, but permits the government to ban "unusual" weapons, or to ban weapons from special locations like schools or hospitals and permits governments to require that all firearms be licensed so long as law abiding citizens have a reasonable chance of getting their hands on one legally.

So in reality it's not much of a change. That ban guns from special locations is likely to prove a gaping hole through which effective bans on weapons in most public places could be realized.

And as new weapons are invented, they can be outlawed prior to becoming popular and hence bullet throwers will probably be the most advanced weapon that people are permitted to use for personal protection.

Personally, for me, allowing the government to require that people get a license is the show stopper. To put it in perspective, can you imagine what life would be like if you had to get a license to run a printing press? To blog?

One can easily make an argument for demanding driver's licenses on government owned roads. The argument for demanding licensure of firearms kept on one's own property is much less tenable.

|6.26.08 @ 11:16AM|#

Why did Scalia have to write this opinion, being such a short time after making such a buffoon of himself in the Guantanamo case?

This entire issue depends on the interpretation of language written hundreds of years ago. Does anybody think that there exists a person who was strongly anti-gun, but then read an article on 18th century language interpretation and changed his mind? Scalia's history lesson seems more like a justification for his views. Fortunately, I agree with him on this one.

ACLU|6.26.08 @ 11:18AM|#

Which thread do I troll in?

|6.26.08 @ 11:23AM|#

OK, the court has ruled definitively on collective vs. individual right. They've ruled that banning an entire class of weapons in common use doesn't pass constitutional muster. They've further ruled that requiring arms to be disassembled or disabled within a home does not pass constitutional muster. The court also orders the district to issue Heller a permit, provided he's not prohibited from exercising 2nd Amendment rights under current law. All reasonably good.

However, the court ruled that 2nd Amendment rights are not unlimited, and refused to establish standards of scrutiny for restrictions on said rights. What defines a "reasonable" restriction on ownership/possession is likely to expand over time (or suddenly, in a crisis). Breyer's dissent nails the majority for not establishing those standards of scrutiny, then proposes a mushy "balance of interest" test for restrictions, the douchebag.

I'll take it for now, but Breyer might get his way down the line.

|6.26.08 @ 11:24AM|#

This is a win in what has been a week of victories for liberty. While the decisions have not been perfect, they have been better than the ususal deference to government we usually get. Heller, Giles, Davies, are all victories for liberty. Lets take the day to enjoy them.

|6.26.08 @ 11:26AM|#

Adamness | June 26, 2008, 11:04am | #

"Someone at DailyKos sounded somewhat reasonable and conciliatory about this..."

They were but I wonder how reasonable DailyKos would sound if the Court one day got a "Commerce Clause" ruling correct and finally told the feds to shut down about 90% of their operations and spending

|6.26.08 @ 11:27AM|#

Elemenope-11:01

I agree. Last week I made the point in another thread that Scalia is more of a selective originalist.

Don't get me wrong, I am generally pleased with the ruling-but for folks like me, i.e., genuine originalists, it is flawed.

|6.26.08 @ 11:30AM|#

I wish it was night already so I could have time to parse though everything. sigh... I am struck though by how Stevens opens his dissent. He seems hung up on the "use" of arms. I don't understand how use is relevant at all.

Mister DNA|6.26.08 @ 11:35AM|#

Did Stevens write that the decision "will almost certainly cause more Americans to be killed"?

|6.26.08 @ 11:36AM|#

My Charlottesville homegirl (and Slate SCOTUS reporter) Dahlia Lithwick is going to throw a shit-fit. Score!

Mikestermike|6.26.08 @ 11:42AM|#

In his dissent, Breyer spends a lot of time discussing the effectiveness of the DC law, not its Constitutionality or practice.

I guess only effective laws are Constitutional and vice versa?

|6.26.08 @ 12:07PM|#

They were but I wonder how reasonable DailyKos would sound if the Court one day got a "Commerce Clause" ruling correct and finally told the feds to shut down about 90% of their operations and spending

Well, it's still DailyKos. We can only expect one sort of reasonable statement a couple times a year.

|6.26.08 @ 12:07PM|#

While I applaud the Kos poster for his respect for the constitution, does he not realize that pretending the commerce clause doesn't exist is the entire foundation of post-FDR liberalism?

|6.26.08 @ 12:09PM|#

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.

Elemenope|6.26.08 @ 12:16PM|#

I am struck though by how Stevens opens his dissent. He seems hung up on the "use" of arms. I don't understand how use is relevant at all.

It might, call me crazy, might be related to the "bear" part of "keep and bear arms". To bring something to bear is to apply it toward a specific use.

Episiarch|6.26.08 @ 12:26PM|#

To bring something to bear is to apply it toward a specific use

Yes, but it doesn't say "bring to bear". It says "to bear", which means to carry, or use, or possess.

Elemenope|6.26.08 @ 12:34PM|#

Yes, but it doesn't say "bring to bear". It says "to bear", which means to carry, or use, or possess.

Also a legitimate reading. My only point is that talking about "use" is not crazy in the context of the amendment text.

|6.26.08 @ 1:03PM|#

Elemenope,

I thought the "people" argument got screwed up a bit on both sides. Stevens tried to make several clearly individual rights into collective rights, to bolster his argument that gun "bearing" is not an individual right. Scalia scored a real winner when he noted that, read as a collective right, the Second Amendment just means that the U.S. can equip and field an army, which is an obscenely ridiculous reading of the amendment. I fear that kind of logic chopping, because it can just as easily be used for the rest of the Constitution. If only Scalia was so reasonable with all rights.

Elemenope|6.26.08 @ 2:00PM|#

Pro_Lib,

I was fairly unimpressed with the reasoning on both sides, and I think it only a temporary accident of history that the half of the baby we favor to be slightly bigger than the other.

And make no mistake, the fucking baby's dead; this would have been a great opportunity to resolve many questions once and for all (relatively speaking), but now the courts will be choking on Heller jurisprudence for years, and neither side will be *at all happy* with what I imagine the final results will be.

A *real* ruling would have at least addressed what sort of scrutiny was warranted, before even hacking into exactly what the hell is an individual vs. a collective constitutional right.

robc|6.26.08 @ 2:02PM|#

Elemenope,

I cant image anything that is an individual right could have anything less than strict scrutiny applied to it. But what do I know, I think "Congress shall make no law" in the 1st is clear english.

Elemenope|6.26.08 @ 2:20PM|#

I cant image anything that is an individual right could have anything less than strict scrutiny applied to it.

I certainly agree. Unfortunately, neither of us sits on a bench in a goofy black robe along with eight others similarly attired.

|6.26.08 @ 2:32PM|#

Elemenope,

The opinion lays the groundwork for incorporation and establishing some sort of strict scrutiny test for reviewing laws that infringe on gun rights in some way, but it only lays the groundwork. We've got at least one case to go. Sounds like Mayor Daley may oblige by producing a state-based fact pattern.

|6.26.08 @ 2:48PM|#

Well, at least they clearly put to death this "collective rights" BS.

They wounded it. It was a 5-4 decision. We're one SCOTUS appointee away from having this decision reversed.

|6.26.08 @ 3:12PM|#

or one well placed false flag terror attack.

Mr. X|6.26.08 @ 3:40PM|#

Stevens FN33 is especially cute, if you read a lot of Scalia opinions.

"The Court does acknowledge that at least one early commentator described the Second Amendment as creating a right conditioned upon service in a state militia. See ante, at 37-38 (citing B. Oliver, The Rights of an American Citizen (1832)). Apart from the fact that Oliver is the only commentator in the Court's exhaustive survey who appears to have inquired into the intent of the drafters of the Amendment, what is striking about the Court's discussion is its failure to refute Oliver's description of the meaning of the Amendment or the intent of its drafters; rather, the Court adverts to simple nose-counting to dismiss his view."

|6.26.08 @ 4:04PM|#

Just how old is Stevens, anyway? Wasn't he on the Marshall court or something like that?