Guns

A Somewhat Skeptical Take on Heller

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I hate to pee in the pool, here, but I'm having a hard time getting too excited about today's decision.

Justice Antonin Scalia's opinion avoids any decision on incorporating the Second Amendment to the states, and his history suggests a strong reluctance to incorporate individual rights.  Scalia's opinion does interpret the Second Amendment as an individual right, but only for self-protection, and only in the home.  The concept of the Second Amendment as a bulwark against an overly oppressive government seems dead.

In the past, when Scalia's limited government principles have conflicted with his law-and-order instincts, law and order has won handily.  He's been a happy federalist when it comes to allowing states to infringe on individual rights, but will bring down the hammer of the federal government on states that defy the feds by giving their citizens a bit more freedom.

As Jacob Sullum noted earlier, Scalia also goes out of his way to note that the "individual right" the Court found today doesn't undo onerous regulations on the sale of guns, leaves untouched bans on "unusual or dangerous" weapons, and doesn't overturn existing bans on concealed carry.

So what's the real practical effect of today's ruling?  Seems to me, it's limited to the following:

•  A future Congress is barred from passing a uniform federal ban on handguns or rifles in the home.  Just about any other federal regulation would probably still be okay, provided it meets the minimal Commerce Clause test in U.S. v. Lopez.

•  The 600,000 residents of Washington, D.C. and residents of other federal protectorates now have the constitutional right to own a handgun, provided they meet a set of conditions put forth by the city council—the limits of which will be litigated at a future date.  Also, even this right for this small group of people extends only to handguns or rifles kept in the home.

Any other city, state, or locality may still pass a gun law just as restrictive as the one struck down in D.C.  And even the D.C. city council can still make its citizens jump through a number of hoops before allowing them to own a handgun.

Today's ruling gave the right a rhetorical victory (remember, elections are "all about the judges!"), but I'm not sure what it accomplished in actually protecting Second Amendment rights.  To be fair, Scalia explains that Heller was basically a case of first impression, and there's much to still work out through litigation.  But given the narrow reach of his opinion, I guess I'd just caution against too much optimism that any new litigation will come out the right way.

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  1. Your skepticism is warranted. In fact, one could read Heller as a rejection of the right to from militias, as militias restricted to popgun use offer little, if any, effectiveness against a rival state (foreign or domestic).

    I’m most disappointed in Thomas.

  2. I’m having a hard time getting too excited about today’s decision.

    You and just about everybody else commenting here at H & R today, Radley.

    I guess I’d just caution against too much optimism that any new litigation will come out the right way.

    Especially since it was a 5-4 “All Hail King Kennedy” decision.

  3. I guess I’d just caution against too much optimism that any new litigation will come out the right way.

    Especially since it was a 5-4 “All Hail King Kennedy” decision.

    I would agree with that. However, on the bright side, the “collective right” silliness is dead. The “militia only” silliness is dead. So, there are a couple of bright spots there.

  4. I’ve commented here and elsewhere: Kennedy was perhaps the most solid pro-Heller vote based on what transpired at the oral arguments. The only thing in my mind was whether they’d grab Stevens too.

  5. To be kind, Scalia is a selective originalist. To be more precise, he is a faux originalist. I agree with Radley’s take that when originalist principles collide with law and order concenrs, Scalia sides with the latter. Very often, as in Lawrence v Texas, Scalia’s opinions reflect his willingness to trot out the Holmsian, progressive, New Deal clap trap that courts should not set aside legislation as this exercise “threatens democracy”. An originalist understands that the US is a republic and that the framers were terrified of democracy and that the framers certainly valued the vindication of individual liberty more than they valued democracy.

  6. I’m most disappointed in Thomas.

    Hadn’t really thought about it, but you’re right. This is exactly the kind of case where Thomas normally whips out a spicy concurrence.

    Then again, he’s usually so far up Scalia’s…

  7. For what is worth, I would like to offer (again) this little gem from the ruling:

    “Third, when the able-bodied men of
    a nation are trained in arms and organized, they are better able to resist tyranny.” 25-26

    That line should give some of the more domesticated members of the citizenry a case of the vapors.

  8. Wait, that’s in the ruling? Sweet!

  9. Scalia’s opinion avoids any decision on incorporating the Second Amendment to the states, and his history suggests a strong reluctance to incorporate individual rights. Scalia’s opinion does interpret the Second Amendment as an individual right, but only for self-protection, and only in the home. The concept of the Second Amendment as a bulwark against an overly oppressive government seems dead.

    The Court only decides issues brought before it as part of a case or controversy. In this case, it’s a question of whether you can keep a handgun in your house in D.C., a Federal enclave. Hence there is no need (and no justification) for writing an opinion that decides the question of whether the Second Amendment is incorporated to the states through the Fourteenth Amendment. This is a feature, not a bug. Nobody briefed the incorporation issue, so it would be premature to decide it without having interested parties.

    As to optimism for the future, this case provides and individual rights starting point for all future gun decisions. It also provides a convenient litmus test for potential Supreme Court nominees.

    With all due respect, Radley, this decision gave a huge win to people in D.C. who want to defend themselves, but you’re complaining about not getting a pony too.

  10. This is not to say that I did not also want a pony.

  11. I want a pony too!

  12. Yeah it ain’t exactly a sweeping victory. But if you were hoping for a Casey v. Planned Parenthood style “get your hands off my guns” decision you’re crazy.

    The debate got officially re-framed. Good guys (barely) won. Call it a win. Hell, the fact they took the damn thing is a win, since they’ve been ignoring the 2nd for ages.

  13. The fact that gun laws don’t actually reduce crime doesn’t seem to faze those that are anti-gun, and I think that the Supreme Court left enough wiggle room with this decision to effectively ban guns in spirit, if not the letter of the law.

  14. The reason we lose so many rights has a lot to do with the court system. Where else can you get a bunch of establishment jackasses to take EXPLICIT wording and take thousands of pages over time to come up with AMBIGUOUS rulings. Keeps these jackasses in charge, paid, and in power.

    I’ve really gone past the point of caring about most of the bullshit in these rulings because the whole system is a damn joke and the quicker people quit playing their bullshit game the better off we will be.

  15. With all due respect, Radley, this decision gave a huge win to people in D.C. who want to defend themselves, but you’re complaining about not getting a pony too.

    Actually, it gave them nothing. While residents of DC technically now possess an individual right to own a gun, the majority opinion upheld licensing and purchase restrictions. I could sail a Titanic through that loophole, and I have no doubt that the DC City Council (and Chicago) will too.

  16. You’re killing my buzz.

    Scalia’s opinion avoids any decision on incorporating the Second Amendment to the states, and his history suggests a strong reluctance to incorporate individual rights.

    Is there any other amendment in the Bill of Rights from which state and/or local governments are totally exempt? It is my understanding (I could be wrong, this is not my area of experise) that those amendments might apply less strongly but they still apply.

    Scalia’s opinion does interpret the Second Amendment as an individual right, but only for self-protection, and only in the home. The concept of the Second Amendment as a bulwark against an overly oppressive government seems dead.

    Did you think it plausible that the court was going to rule that there is a right to have all the weapons that would be needed to overthrow the modern US government? Wouldn’t things like tanks and rocket launchers be needed for something like that?

    Also, are you in favor of overthrowing the government at this time?

  17. Some guy on /k/ extracted some quotes from the decision if any of you guys want to know what to be mad about.

    “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.”

    “Like most rights, the right secured by the Second Amendment is not unlimited.”

    “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 of arms.”

    “We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ 307 U. S., at 179.”

  18. Did you think it plausible that the court was going to rule that there is a right to have all the weapons that would be needed to overthrow the modern US government? Wouldn’t things like tanks and rocket launchers be needed for something like that?

    Also, are you in favor of overthrowing the government at this time?

    No, yes, and mumble mumble mumble.

  19. Also, this case was chosen because, since it involved D.C., it avoided the question of incorporation. Its hard to decide if this is a bug or a feature.

    Let’s take a win where we can get it even if we aren’t quite ready to leap for joy. SCOTUS has now declared that the gov’t can’t imprison people for life without a hearing, execute people based on dangerously uncertain convictions or completely deny the right to a gun. Maybe the champagne is premature but a good Sam Adams is in order.

  20. I could sail a Titanic through that loophole, and I have no doubt that the DC City Council (and Chicago) will too

    This is the crux of it. I predict that this will do Jack and shit (and Jack left town) for DC residents until they bring another case to court and get a definition for what constitutes licensing and purchase restrictions.

    We gained a definitive ruling of “individual right” today. Nothing else.

    Those who are afraid of localities using this ruling to suddenly effectively ban guns through restrictive licensing schemes, etc., are missing the point that they could have done it before the ruling and didn’t. Nothing was stopping them, except possibly state laws that are unaffected by this and so are still in effect.

  21. Actually, it gave them nothing. While residents of DC technically now possess an individual right to own a gun, the majority opinion upheld licensing and purchase restrictions. I could sail a Titanic through that loophole, and I have no doubt that the DC City Council (and Chicago) will too.

    Wrong. The District has already announced that they will create a process to allow people to own handguns in the home within 30 days. Whatever that process looks like, it has to be easy enough that a normal, non-felon like Dick Heller can get it. D.C. knows that if they dick around on this, they’ll get smacked even harder.

    As to Chicago, this doesn’t effect them at all.

  22. I could sail a Titanic through that loophole, and I have no doubt that the DC City Council (and Chicago) will too.

    I can see it now…

    * $100 annual gun registration fee
    * Annual written safety test
    * Bi-Annual live safety test with $75 test fee
    * Gun must be on approved list of firearms.
    * Gun sales only from 2PM – 3PM on the third Thursday of the month.

  23. No, the right is unlimited. This does not mean that one has a right to use any weapon any time they feel like it-but the amendment does not have any prohibitions.

    Thus, convicted felons should not be deprived of their right to keep and bear arms. The plain meaning of the 2n amendment forbids any legislation that would impinge on this right. If the framers had intended to limit the sweep of the 2nd amendment, they would have so done. They did not.

    Of course, I can hear the chorus of control freaks screaming that a literal, absolute construction of the amendment would be absurd and that it would lead to chaos and that a strict interpretation would be unreasonable. Of course, the chorus would be off key.

    Yes, an individual has a right to possess atomic weapons. Given HISTROY-who is not to be trusted with atomic weapons? There is only one entity to have ever used them and in so doing the entity killed hundreds of thousands of people and maimed hundreds of thousands of others.

  24. The argument that the founders would have limited it if they had wanted it to be limited doesn’t hold water.

    They didn’t limit the 1st, but they had no problem with banning porno and libel and sedition, etc…

    I don’t think the founders would have thought that the 2nd required letting murderers and felons acquire arms. Of course, they just would have hung most of them in the first place, but anyways…

  25. I don’t know if I’d call it a “win” as much as it was “2nd amendment supporters didn’t lose.” It will probably be a few years before we can figure out if this was a turning point in restoring the 2nd or if it was merely an affirmation of your individual right to own a gun, provided the government approves approves of both you and the gun.

  26. The problem with this case is that it involved D.C. If the court had ruled on incorporation, etc., it would’ve been accused of engaging in legislating from the bench. I’m not sure that would’ve been a fair accusation, but it’s hardly unusual for the SCOTUS to rule as narrowly as possible. I think the majority is relying on a follow-up case to complete the enshrinement of the right to bear arms as an individual right. Realistically, I don’t think we can ever expect gun rights to be treated like speech, but this case marks a fundamental shift in the debate. Lots of litigation to pour forth from this one, I suspect. I wonder if there aren’t some Section 1983 opportunities against cities that try to ignore the decision?

    I think the states will generally act in anticipation that an incorporation ruling will come from the Court before too long.

  27. The court seems to have read “keep arms” and agrees that Americans are free to keep guns in their own homes, but seems to have neglected to read “bear arms” which indicates the freedom to carry them on the streets. Either aspect of the right “shall not be infringed,” not just by Congress, but by anyone.

  28. Scalia gives a lame example on pp. 28-29 on why the right isn’t unlimited.

    Writing for the court in an 1825 libel case, Chief Justice Parker wrote: “The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.”

    Correct, it doesn’t protect the man because there are laws against destruction of other property. A man is punished for his destruction, not his means of doing so.

  29. Also, are you in favor of overthrowing the government at this time?

    Ummm….”at this time”, does that include the general time, like plus or minus a presidential election, or just today at 5:50pm Eastern?

    I personally think a tea party or two is well in order.

  30. Toxicroach-

    The fact is that there are no qualifiers in the language-so they did not limit the sweep of the amendment. Language is important. Probably more important to them than to us. They wrote what they meant and they meant what they wrote.

    Sure, they were human beings. They were flawed. Many of them in office contradicted the very principles upon which they revolted.

    But, in devising a philosophy of constitutional interpretation, are we to ignore the plain meaning of constitutional text and rely instead upon the subsequent deviations therefrom by some of the framers? Are we going to regard the bill of rights as the bill of admonitions?

  31. The Court only decides issues brought before it as part of a case or controversy.

    Yeah, but. If that was all this case did, it would have been a three page opinion.

    We would have been better off with a bare bones opinion. Instead, Scalia went out of his way in dicta after dicta to lay the groundwork for upholding nearly every gun control law currently on the books. He could have used his dicta to lay the groundwork for a broad reading of the right, but instead he did just the opposite.

  32. Yes, an individual has a right to possess atomic weapons. Given HISTROY-who is not to be trusted with atomic weapons? There is only one entity to have ever used them and in so doing the entity killed hundreds of thousands of people and maimed hundreds of thousands of others.

    Most individuals, groups, and regimes have never been in a position to use atomic weapons. So the fact that only the US government under Truman has ever killed with one is not a good indication of who would or would not do so, if given the chance. If atomic weapons were available to any individual who wanted one, we would have a situation in which any idiot or nutjob can kill tens of millions of people. And any handful of such people could end civilisation.

    Even the position that individuals should be allowed to have any weapon needed to overthrow the government is more reasonable than a “keep-and-bear-nukes” position. You would need some pretty powerful weapons to take on the feds, but nuclear weapons would not be necessary or desireable.

    And, of course, a nuclear weapon has no value to an individual as an instrument of self-defense.

    Other Matt

    This general time, plus or minus a few elections.

    I think it would be difficult to arrange to overthrow the government this afternoon. It is such short notice and some of the would-be overthrowers might have to work late. Also, liberty mike might be too busy arguing with me today to help.

  33. Unless I missed something, the decision doesn’t say anything about incorporation because the issue was not up for the court to decide.

    This is pretty basic stuff.

  34. As to Chicago, this doesn’t effect them at all.

    Right. But the NRA’s Wayne LaPierre has already appeared on Fox News and announced that they’re going to seek a suit against Chicago to clarify the incorporation issue.

    Is there any other amendment in the Bill of Rights from which state and/or local governments are totally exempt?

    Arguably the Ninth Amendment, but only because the Ninth Amendment is basically ignored (since Enumerated Powers are ignored.) Arguably the Third Amendment, due to lack of case law. Probably the Tenth Amendment, because it’s explicitly a restriction on the Federal Government against state and local prerogatives.

  35. The states are also partially exempt from the Fifth, Sixth, and Seventh (?) Amendments.

  36. It will probably be a few years before we can figure out if this was a turning point in restoring the 2nd or if it was merely an affirmation of your individual right to own a gun, provided the government approves approves of both you and the gun.

    It will probably be a few more SCOTUS appointments until we can figure that out, too.

    To be kind, Scalia is a selective originalist. To be more precise, he is a faux originalist. I agree with Radley’s take that when originalist principles collide with law and order concenrs, Scalia sides with the latter. Very often, as in Lawrence v Texas, Scalia’s opinions reflect his willingness to trot out the Holmsian, progressive, New Deal clap trap that courts should not set aside legislation as this exercise “threatens democracy”.

    I have to think that Lawrence v. Texas is not the best case to make an anti-originalist case against Justice Scalia. With all due respect to Randy Barnett and his “presumption of liberty” theory, I think that someone can certainly be a (non-faux) originalist and refuse to strike down a state law banning something that was banned for hundreds of years, as stupid as the law might be.

  37. And some of Scalia’s dicta were pretty absurd as well. He waved his hands on the question of machine guns, saying that the definition of militia arms included those in common use at the time and people don’t generally own machine guns. Chris Knox points out that the ONLY reason this is true is because the federal government itself has severely restricted their ownership for 74 years, quite possibly in violation of the “newly-found” meaning of the Second Amendment.

  38. In the past, when Scalia’s limited government principles have conflicted with his law-and-order instincts, law and order has won handily.

    Well, except for authoring the 5-4 opinion in Kyllo v. United States, saying that thermal imaging couldn’t be used without a warrant to detect the heat used to grow marijuana.

  39. I’ve really gone past the point of caring about most of the bullshit in these rulings because the whole system is a damn joke and the quicker people quit playing their bullshit game the better off we will be.

    I’ve said for years that the best way to guarantee your right to keep and bear arms in the worst of times is to move to a free state, buy a few AR’s and 1911’s, encase them in cosmoline, and bury them somewhere where no one will find them.

  40. These are the parts of bill of rights which have not been applied to the states through incorporation under the 14th amendment:

    2nd
    3rd (almost certainly would be incorporated if a case ever arose)
    5th right to grand jury trial
    7th right to a jury trial in civil cases
    8th prohibition on excessive fines

  41. Wow, what a whiny post. You don’t win everything in the first case when you’re doing impact litigation. You establish a beachhead with the first case, and then expand from there. If the first case brought under the Second Amendment pushed for an absolutist right of every American to own a tank, it would have been DOA, and we would have risked losing on whether the Second Amendment protects an indivudal right.

    The big news is that the court established that the Second Amendment protects an individual right to keep & bear arms for a variety of purposes. This may not seem like such a big deal only because we’ve been thinking we’re going to win since oral argument, but prior to March of this year, or at least prior to the DC Circuit decision being issues, it is a very big deal.

  42. As for incorporation, it wasn’t an issue presented. The majority opinion does reference the issue however, in their discussion of Cruikshank, an 1875 case that said that the Second Amendment only applied to Congress, and not to the States. Most notably in Footnote 23:

    “With respect to Cruikshank’s continuing validity on incorporation,
    a question not presented by this case, we note that Cruikshank also
    said that the First Amendment did not apply against the States and did
    not engage in the sort of Fourteenth Amendment inquiry required by
    our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252,
    265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed
    that the Second Amendment applies only to the Federal Government.”

    And they did set it up for incoproration by noting that it is a historical fundamental right (such rights are generally incorporated via the 14th Amendment:

    “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.”

  43. And, of course, a nuclear weapon has no value to an individual as an instrument of self-defense.

    Raven (Mister Poor Impulse Control) begs to differ.

  44. I don’t know why the lack of incorporation here is a downer for you, Radley. Incorporation was utterly unnecessary to deciding the case, and a decision incorporating the Second Amendment would have met pretty much anyone’s definition of judicial activism.

    Also, footnote 23 strongly suggests, IMO, that incorporation is on the way:

    With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

    Seems to me this is a pretty clear statement that, at the very least, the incorporation analysis of Cruikshank and its progeny is entirely incorrect, as well as a suggestion that, just like Cruikshank‘s conclusions about the First Amendment, its conclusions about the Second are wrong.

  45. Let’s push ahead with a Chicago case. I’d like to see it thrown in Daley’s face while he is still mayor. That red-faced fool has Chicago PD guarding his fat-ass at taxpayers expense.

    Yet he won’t allow the peons to protect themselves.

  46. Justice Antonin Scalia’s opinion avoids any decision on incorporating the Second Amendment to the states, and his history suggests a strong reluctance to incorporate individual rights.

    https://www.reason.com/blog/show/124995.html#914773

  47. John Thatcher-

    First, definitions. By Originalist, I mean one who adopts a philosophy of constitutional interpretation that relies upon the plain meaning of the constitutional text above all other interprative philosophies.

    Therefore, a legitimate originalist would look at the 9th amendment and that would end the inquiry. There is nothing in the ninth amendment that supports the proposition that a state legislature has the right to enact anti-sodomy laws.

  48. John Thatcher-

    If I am not mistaken, Professor Barnett’s presumption of liberty position is rooted in the ninth amendment and the philosophy of the ninth amendment.

  49. I’m not impressed. Whether it’s a win or not will depend on how SCOTUS will define infringment on a later date.

  50. BG-

    The revolution comes first. We can argue later or after we consolidate our power.

  51. John Thatcher-

    Where in the bill of rights is there any declaration that the same shall not apply to the states?

  52. Where in the bill of rights is there any declaration that the same shall not apply to the states?

    Why not try reading the plain text of the First Amendment for a start:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

  53. John Thatcher-

    Don’t forget that the constituion mandates that the states are to have republican forms of government. Undergirding the philosophical basis of republicanism is the notion that the only lawful province of the legislature is the protection of individual liberty. Anto-sodomy laws do not embrace this conception of republicanism.

    A better example of Scalia’s selctive originalism? How about the Hein case?

  54. Don’t forget that the constituion mandates that the states are to have republican forms of government. Undergirding the philosophical basis of republicanism is the notion that the only lawful province of the legislature is the protection of individual liberty. Anto-sodomy laws do not embrace this conception of republicanism.

    A republican form of government is one in which the people are represented by duly elected representatives. Your “undergirding philosophical basis” is wishful bullshit.

  55. Mr. X-

    Wrong. First, does the first amendment state that it does not apply to the states?

    Second, how about the second amendment? Any language there that states that it does not apply to the states?

    Can you find any such language in the 3rd, 4th, 5th, 6th, 7th, 8th or 9th amendments?

    What is an absolute fact is that there is no statement declaring that the Bill of RIghtS do not apply to the states.

  56. The plain meaning of the 2n amendment forbids any legislation that would impinge on this right.

    Plainly, “impinge” and “infringe” are not equivalent in meaning, although certainly they are semantic neighbors. Infringe seems to be the stronger in meaning. E.G., you would encroach on something to the point of having an impact (impinge), but would have to push farther/harder for that impingement to constitute an infringement (a violation, breach, or transgression).

  57. Mr X-

    Look at what Madison had to say about the rasion d’etre of government. He opined that government exists to protect private property. He didn’t say that government exists to enact anti-sodomy laws.

  58. Wrong. First, does the first amendment state that it does not apply to the states?

    Well, unless you read the words “Congress shall make no law…” as “Congress [and the states] shall make no law…,” it’s pretty clear that states aren’t contemplated.

    Second, how about the second amendment? Any language there that states that it does not apply to the states?

    Can you find any such language in the 3rd, 4th, 5th, 6th, 7th, 8th or 9th amendments?

    What is an absolute fact is that there is no statement declaring that the Bill of RIghtS do not apply to the states.

    As to the rest of your specious arguments, the Constitution is a document defining the powers and limitations on the Federal government. If you’re suggesting that the Framers and ratifiers secretly meant the states when they talked about Congress and the other branches of the Federal government, you’re the one that has to come up with the language supporting your point.

    There are also no statements in there declaring that the Bill of Rights doesn’t apply to France or space aliens.

  59. Arguably the Ninth Amendment, but only because the Ninth Amendment is basically ignored (since Enumerated Powers are ignored.) Arguably the Third Amendment, due to lack of case law. Probably the Tenth Amendment, because it’s explicitly a restriction on the Federal Government against state and local prerogatives.

    That makes sense about the 3rd and 10th amendments. But, if I remember correctly, the 9th amendment doesn’t concern enumerated powers, but rather enumerated rights (it says enumerated rights are not the only constitutionally protected rights, so the fact that a claimed right is not enumerated doesn’t automatically disqualify the claim). The 10th amendment, however, mentions enumerated powers insofar as it restricts the federal government to them.

    Er?k Boston, J.D.

    It sounds to me then, that the 2nd amendment’s individual right to have firearms in the home is likely to be applied to the states when there is a test case. Most of the rest of the Bill of Rights for which there is case law has been so applied, especially the most important rights.

    I hope it will be applied, at any rate.

  60. I think some of this criticism of Heller is highly unwarranted.

    As far as the incorporation issue goes, Scalia didn’t address it in the opinion because it wasn’t an issue in the case. The District of Columbia isn’t a state, meaning that the 14th Amendment doesn’t apply to it at all. Instead, its laws are subject to the Bill of Rights itself.

    If the Scalia had said anything substantive about whether the 2nd Amendment it would have been non-binding dicta anyway.

    As others have mentioned, there’s plenty of language in the opinion to indicate that a majority of the Court believes that the individual right guaranteed by the 2nd Amendment is in fact applicable to the state through the 14th Amendment.

  61. NM-

    You make a good point. From my perspective, impinge is the better choice.

  62. Look at what Madison had to say about the rasion d’etre of government. He opined that government exists to protect private property. He didn’t say that government exists to enact anti-sodomy laws.

    And pray tell how Mr. Madison’s thoughts on the reasons for government to exist have anything to do with your ridiculous argument that “republican form of government” means “government that can’t enact anti-sodomy laws”?

  63. MR X-

    Or to Gitmo detainees.

  64. Radley-

    You and Sullum miss the essential point – building the legal foundation. Brown v. Board of Education was NOT the first step in desegregation; it was the culmination of Marshall’s sequence of cases. You are making the same foolish assumption that so many pro-RKBA folks have made – hit the home run or go down swinging. That’s an AWFULLY high risk strategy for a core right. Particularly when you have senile old men like Stevens on the Court.

  65. Actually, it gave them nothing. While residents of DC technically now possess an individual right to own a gun, the majority opinion upheld licensing and purchase restrictions. I could sail a Titanic through that loophole, and I have no doubt that the DC City Council (and Chicago) will too.

    Did you honestly expect the court to say that the Second Amendment confers an absolute right to own a weapon of any kind without subject to any kind of restrictions? The First Amendment does not contemplate such expansive rights, so I’m not sure how you could have that view of the Second.

  66. Did you think it plausible that the court was going to rule that there is a right to have all the weapons that would be needed to overthrow the modern US government? Wouldn’t things like tanks and rocket launchers be needed for something like that?

    Not quite the right question. The people can overthrow the government any time they’re willing to vote to do so. Then the relevant question becomes whether the U.S. military can put down such a revolution. And the answer is no.

    Consider that the military is up to its armpits trying to keep control of Iraq, which is a country barely larger than California. Their opponents in Iraq are mainly armed with rifles and improvised explosives.

    Now picture the same military spread over all fifty states. The U.S. military has around 500,000 warfighters; the folks who carry rifles, shoot artillery, and drive fighting vehicles. There are about 80,000,000 gun owners. That’s odds in excess of 150 to 1.

    That doesn’t count the fact that most gun owners have several firearms, which surplus could arm neighbors.

    Any attempt by the U.S. government to stage a military coup would be suicidal, and the U.S. officer corps knows it.

    Those who are afraid of localities using this ruling to suddenly effectively ban guns through restrictive licensing schemes, etc., are missing the point that they could have done it before the ruling and didn’t.

    Actually both the D.C. and Chicago “bans” are licensing schemes. Both laws require handguns to be licensed before a certain date, then refuse to license new ones.

  67. liberty mike,

    From my perspective, impinge is the better choice.

    Too bad you didn’t get a vote in the word choice for the 2nd then…

    Text never “plainly” means things, however, so the shades of difference may not matter that much in the long run.

  68. Actually both the D.C. and Chicago “bans” are licensing schemes. Both laws require handguns to be licensed before a certain date, then refuse to license new ones.

    I think the point is that this practice has been restricted to a few cases rather than being adopted as a common strategy.

  69. “I guess I’d just caution against too much optimism that any new litigation will come out the right way.”

    We shall see…

    http://www.buckeyefirearms.org/node/5793

  70. In regards to a right to resist a tyrannous government:

    1. First of all, you’ve got to understand that the notion that an armed populace could rise up and fight the US Army to a standstill is ludicrous, with or without a legal right to own tanks. The US army is worth trillions of dollars, and features not just tanks, but fighters and bombers, cruise missiles, satellite reconnaissance, laser target painting, battleships, not to mention, you know, nuclear weapons. Even if the 2nd Amendment were interpreted to mean, “Have at it, kids!” there’s no way that the people could rise up, whup the Armed Forces in a fair fight, and install a new government, as some people seem to fantasize about.

    2. Point number 1 is more true today than it was in 1776, perhaps, but it was pretty true in 1776, as well. To beat the British, the colonials didn’t need a few muskets they kept in their homes, they needed cannon, cavalry, ships… Perhaps more so, they needed a well-trained military. The idea that the Colonial army was a bunch of rednecks hiding in the woods performing sniper attacks and that they won is fantasy.

    3. What you could do with muskets kept in your home in 1776 was start an insurgency: a group of people who could fight just convincingly enough that they couldn’t be ignored, and so they could, while visibly fighting, get foreign support and public opinion on their side, and then actually make the military break out those big guns, the cannon and whatnot, in order to deal with them. They didn’t need a state of the art circa 1776 army to do that, and you don’t need a state of the art circa 2008 army to do that now. The Iraqi insurgency is proof that with just rifles and some improvised explosive devices, you can fight the US Army well enough that they can’t just make you instantly vanish, and you have a chance to make your case to people who might back you (including, as it happens, the Army itself). No, you don’t have tanks, but if the Army has to deploy their tanks to shoot you, that’s a whole different ballgame.

    4. Thus, the 2nd Amendment as a bulwark against tyranny is best understood not as the way to prevent the US Army from deploying in your home town and shelling the place from a mile off, but as a way to prevent the government from sending a couple of policeman into your house late at night and just straight up disappearing you with your neighbors never being the wiser. If the Army has to deploy, then you’ve got some kind of a chance to make your case to your fellow citizens, to the world at large, to any elements of the army or the government who aren’t tyrannous.

    5. The above is a pretty shitty way to make your case, so it is best understood as a real last resort. Probably, even if your cause is just, nobody will believe you. But you’ve got slightly better odds than if you just disappear one night and spend the rest of your miserable life in Gitmo, held without due process or any visibility.

  71. First of all, you’ve got to understand that the notion that an armed populace could rise up and fight the US Army to a standstill is ludicrous

    Tell that to the Vietnamese.

    I highly doubt the bulk of the US Military would participate in any extended “counter-insurgencey” against their fellow citizens.

  72. Mr X-

    Madison, like the vast majority of the framers, were adherents of the natural rights philosophy and this philosophy informed the framers’ conception of what government ought to be.

    I trust that you would accept that the framers were quite distrustful of democracy. They did provide for elections-but only to serve as a check on those who would look at public office as their personal bully pulpit. The framers did not look at elections as a means by which succeeding majorities could impose their ever changing ends upon the rest of us. No, for them, government should not exist for such purposes.

    Thus, given that they feared the mob, the framers, by and large, thought that republican government was the best option for serving their conception of what a just government ought to do-govern least-while also providing for periodic elections as a check on those who might get a little too comfy with the perks of power..

    The notion that the framers thought of republican government as nothing more than the people voting for their representatives is at odds with reality. To them, republican government meant government that minded it ps and qs and only acted to protect private property.

  73. SIV: Read past the first sentence. You aren’t disagreeing.

  74. Any attempt by the U.S. government to stage a military coup would be suicidal, and the U.S. officer corps knows it.

    A coup d’?tat is staged by those not officially in power against those who are.A coup would, by definition, be against the government. Coups are often bloodless and can succeed with popular support.

  75. Michael B Sullivan ,

    sorry, that is my “knee-jerk” response to the cliche that an armed US populace stands no chance against the US military.

  76. Mr. X-

    Sure, the framers were much more concerned about the general government-but that doesn’t mean that they thought that state governments were immune from the things they feared about the central gvt.

    But, in the realm of constitutional interpretaion, I submit, that where, as in Lawrence v Texas, the argument that the framers did not intend the bill of rights to be applied against the states as the constitution enumerates the powers given to the feds must give way to the superior argument that the bill of rights does not contain any statement that its terms are to be limited to the feds.

    Furthermore, to argue that the framers were only concerned about potential abuses of the feds is absurd. The constitution is not EXCLUSIVELY a document about the sharing of power as between the states and the feds-now is it?

  77. Michael B. Sullivan-

    Would you agree that the US military’s performance in the last 60 years falls somewhat short of, say, the 1972 Dolphons?

  78. Mr. X-

    The framers were more interested in protecting individual liberty than preserving state’s rights. Sure, they thought that the states might be less apt to usurp those rights than the general government, but that did not mean that they took leave of their senses.

  79. “The concept of the Second Amendment as a bulwark against an overly oppressive government seems dead.”

    Not really dead, just wildly out-dated. Now I’m for the right of the people to bear arms, but not because it’s a check on the power of gov’t to be able to own a hand gun. I’m for it merely because the Constitution seems to allow for it.
    But the concept that the option of a hand gun allowed in the home of a citizen provides a check against an “overly oppresive” gov’t is flat out silly.

  80. LarryA

    Interesting point.

    I was going to express some kind of skepticism that the numerical advantage you refer to would be sufficient to fight overcome the massive technological advantage the military has (or that nearly all people with guns would get together and organize an uprising). However, Michael B Sullivan said most of what I was might have said (and then some).

    I’ll elaborate a bit more on the Iraq insurgency argument. If the US military were willing to take an unlimited number of casualties, for an unlimited period of time, and devote most of its effort to preventing the Iraqi government from being overthrown, the insurgents would have little chance of overthrowing it. That isn’t the case (nor should it be): the intention is to leave in the forseable future, keep casualties down, and establish some degree of law and order throughout the rest of the country. But if there were a domestic insurrection; congress would not be debating when to witdraw from Washington DC. And preventing the government from being overthrown would be a much higher priority.

    Also, in addition to rifles and improvised explosives, the insurgents have a few mortars and rocket launchers (which private citizens are prohibited from possesing in most us jurisdictions).

    I guess if there is ever a need to overthrow the government, some members of the military will have to side with the rebels, or it has no chance of succeeding.

    However, liberty mike says he plans on arguing with me after his revolution. Perhaps in that argument, he can shed some light on this point.

  81. The framers were more interested in protecting individual liberty than preserving state’s rights. Sure, they thought that the states might be less apt to usurp those rights than the general government, but that did not mean that they took leave of their senses.

    First of all, you can’t just say “the framers” thought something like they were some sort of monolithic block. Pick any portion of the Constitution and there were framers on both sides in the debate. See also, The Federalist Papers and the Anti-Federalist Papers.

    Secondly, you’re just wrong about what the Constitution does and doesn’t do. As another example, at the time of ratification, Maryland had an established state religion (Catholicism) even though the First Amendment prohibited the Federal government from establishing a national religion.

    Also, when the Constitution was intended to apply to the states, it is explicit in doing so. See, e.g., the interstate commerce clause, the Fourteenth Amendment, the republican form of government clause, and the provisions about electing Senators. This is a pretty big nail in the coffin of your argument that not mentioning the states is how the framers expressed their desire to apply to the states.

    The constitution is not EXCLUSIVELY a document about the sharing of power as between the states and the feds-now is it?

    It mostly is, except for the individual rights provisions and the provisions dealing with the structure of government and international relations.

  82. Well, unless you read the words “Congress shall make no law…” as “Congress [and the states] shall make no law…,” it’s pretty clear that states aren’t contemplated.

    I see. So, no 1st Amendment protections available against state governments, correct? What about the rest of the Bill of Rights?

  83. To all the people saying, “stop whining”:

    The Supreme Court often decides on precedent. Well, they do that less and less with each passing day, but that’s how it’s generally done.

  84. I see. So, no 1st Amendment protections available against state governments, correct? What about the rest of the Bill of Rights?

    I commend to you this very detailed article on the concept of incorporation.

  85. “But the concept that the option of a hand gun allowed in the home of a citizen provides a check against an “overly oppresive” gov’t is flat out silly.”

    This is a silly comment. A crooked local cop is an “overly oppressive” government, a trigger happy trooper is an “overly oppressive” government, Dozens of ATF agents coming out of cattle trailors to make a reality TV show for more funding is an “overly oppressive” government. Even if these are “exceptions to” the rule, they still must be dealt with, and anyway one should remember history. Economic unrest will turn any first world country, third world really fast and could happen in a number of ways. Violence and corruption is much more prevalent when there is less money to go around. It is hubris to think just because we have had a relatively stable government for our small existence that it will be permanent, especially with the volatility in the world today and the quality of our “leaders” in both parties.

  86. The concept of the Second Amendment as a bulwark against an overly oppressive government seems dead.

    Do you think that Russia simply expected Stalin? Germany– Hitler?

  87. By Originalist, I mean one who adopts a philosophy of constitutional interpretation that relies upon the plain meaning of the constitutional text above all other interprative philosophies.

    OK, fine. But it does seem to be getting into odd semantics when you claim that someone who refuses to invalidate a law of a sort that was present at the writing of the said text and never seriously challenged or debate cannot be an originalist. In any case, I think “the plain meaning of the Constitutional text” is often described as “textualist,” not “originalist” anyway. That would be a better distinction to make anyway, because concentrating on “originalism” makes it sound as though you are bound to what the people who adopted the text thought it meant– and unfortunately I think it quite unlikely that anyone ratifying the Bill of Rights (or the Fourteenth Amendment) thought it prevented the states from passing anti-sodomy laws. Since, as Mr. X notes, the Fourteenth Amendment and doctrine of incorporation came much later than the Bill of Rights, it’s fairly ridiculous to talk about what the Founders thought about the issue anyway. Established state churches are just one example of how the Bill of Rights was originally treated– individual states wanted to maintain their established churches but didn’t want a national one since they had different established churches.

    I’m not arguing against the doctrine of incorporation here, but I think calling your position “originalism” is a misnomer.

    Regards the Ninth, I am familiar with Professor Barnett’s theories, but in practice justices of both the left and right have treated that Ninth as a dead letter or rather meaningless (such as enshrining the idea that everything not banned is permitted rather than the other way around) rather than claiming that, e.g., it is a presumption in favor of negative liberty (but not positive liberty.) If the Enumerated Powers doctrine were taking seriously, there would be less need for an expansive Ninth Amendment anyway, even though, yes, it also applies to the Tenth. But in practice the Ninth doesn’t really apply to the states or local government because the courts refuse to apply it at all.

    In regards to this particular case, Justice Scalia wrote that the ban was so sweeping and banned such obviously legal categories of guns that it unconstitutional under any scrutiny. That’s quite strong. To address machine guns or anything else not in this case, there would mostly likely have to have been some discussion of what level of scrutiny was appropriate and some balancing test, at least to get a majority.

  88. As well all should know by now, suppressing an insurrection / rebellion / insurgency requires getting troops out on foot. Even if the full number of U.S. Military members came out to suppress The People (well, -1, because I sure as fuck am not going to do it…unless it’s the South :-), that would be something on order of 2 million (or so, counting the respective state National Guards) vs. what, 30,000,000 healthy men with guns?

    It wouldn’t be pretty, but the Military wouldn’t stand a chance. It’s taken 30 brigades just to subdue some Moon God Jokers and their Ak-47s and cordless telephones.

  89. I sure as fuck am not going to do it…unless it’s the South 🙂

    If you’re deployed in Dixie on a counter-insurgencey mission be sure and paint a dollar sign on your helmet so I’ll know where to aim !

  90. Also, when the Constitution was intended to apply to the states, it is explicit in doing so. See, e.g., the interstate commerce clause, the Fourteenth Amendment, the republican form of government clause, and the provisions about electing Senators. This is a pretty big nail in the coffin of your argument that not mentioning the states is how the framers expressed their desire to apply to the states.

    One thing we can be fairly certain nearly all the founders did believe in was the idea that the Constitution was not written in stone, that it could (with strenuous effort) be altered to adapt to changing conditions and times. The vast majority of them even lived to see the first twelve changes enacted.

    The Fourteenth Amendment fundamentally alters the structure of government such that the balance of power between the states and the fed is forever changed. It is fairly likely that some of this change was intended directly, and some of this change was an unforeseen natural consequence of interpreting the civil rights amendments. Regardless, what was intended *by the founders* in regards to Federal structure is at best passe, academic, an exercise in might-have-beens and maybes. The structure *we have* to work with is very different than the one they envisioned, and that’s the deal.

    The incorporation doctrine stems from a (non-insane, but not uncontroversial) interpretation of the Fourteenth Amendment. The court had previously in Barron ruled decisively that the Constitution (plus the Bill of Rights) did not imply nor invite incorporation. But that Constitution is not the one in operation today, and so the observation that incorporation was once not tenable is pointless.

  91. But that Constitution is not the one in operation today, and so the observation that incorporation was once not tenable is pointless.

    Usually correct, unless you’re arguing with someone who wrongly insists that incorporation was intended at the time the Bill of Rights was ratified.

  92. If 20% of the Jews in Nazi Germany each killed a Nazi, WWII would have been over a lot quicker.

  93. “I hate to pee in the pool, here, but…”

    LIAR!!!

    I thought I felt the water getting warmer…

  94. For those arguing about incorporation, read the 9th and 10th Amendments. The people retained all sorts of rights. Those listed and more. States nor the Federal government could limit them. The Bill of Rights was not designed as a list; it was an explicit reminder of the most important rights .

  95. For those arguing about incorporation, read the 9th and 10th Amendments. The people retained all sorts of rights. Those listed and more. States nor the Federal government could limit them. The Bill of Rights was not designed as a list; it was an explicit reminder of the most important rights.

    And the Ninth and Tenth Amendments, specifically, are exhibit A and B of why it is not a great idea to deify the intellect and wisdom of the “Founding Fathers”. On the whole predicting unintentional consequences thing, and also the whole practical utility thing, they blew these two big time.

    I’m a great fan of the idea that I possess a whole host of rights that James Madison in his haste just couldn’t think of to write down in his favorites list, but practically speaking Bork (that *asshole*) was probably closest to the mark when he said that applying such a principle is basically impossible.

    Where does this cloudy list of unenumerated rights begin and end? Neither Libertarianism nor the Non-Aggression principle existed when they were written, so we can’t very well say that it was intended for them to be read on that basis. We could read our ideology into the passages, but that would make us no different than every other schmuck with a law degree having done the same to decidedly mixed results over the years.

  96. For those arguing about incorporation, read the 9th and 10th Amendments. The people retained all sorts of rights. Those listed and more. States nor the Federal government could limit them. The Bill of Rights was not designed as a list; it was an explicit reminder of the most important rights.

    Agreed, but the question of incorporation is whether a specific enumerated right in one of the first eight Amendments can be used to constrain governmental action by one of the states.

    A Ninth or Tenth Amendment argument against state action will more likely turn on whether the right was one generally held by all people under the English common law and thus “fundamental to our system of ordered liberty.”

  97. Those who think that civilian smallarms are useless in “these modren times” to overthrow oppressive governments ought to get familiar with the Battle of Athens.

    Not all tyrannical governments are headquartered in Washington DC.

    Speaking of which, the Illinois State Rifle Association filed suit against Da Mare’s handgun ban 15 minutes after the Supremes sang. Ah, how sweet it is!

  98. “Agreed, but the question of incorporation is whether a specific enumerated right in one of the first eight Amendments can be used to constrain governmental action by one of the states.”

    The Due Process clause of the 14th Amendment incorporates unenumerated rights as well. See Griswold, Roe, and Lawrence.

  99. “The Supreme Court often decides on precedent. Well, they do that less and less with each passing day, but that’s how it’s generally done.”

    Ok, but how is that responsive to the people saying “stop whining”? That’s basically our point, in fact. You need to build precedent to work from before you can further develop and expand a constitutional right – it doesn’t just all happen over night in a single opinion.

    Heller has now established that the right to keep and bear arms is an individual right, which is a big deal. Now, other cases can proceed forward in the Second Amendment arena without having to deal with that issue.

    Heller is not perfect, but no precedent ever is. Much of what people don’t like about it is arguably dicta anyhow.

  100. Consider that the military is up to its armpits trying to keep control of Iraq

    What you suckers forget is the army’s playing “Mr. Nice Guy” in Iraq. We’re liberators building schools, rescuing looted antiquities, and all that touchy-feely crap; we’re winning hearts and minds. Don’t think for a second that if it were a domestic fight, a civil war, the velvet gloves wouldn’t come off in two-seconds-flat. “Make the rubble bounce” could have easily and probably permanently pacified large parts or Iraq, had the desired political goals been attainable that way. In a U.S. Civil war, chances are the political goals will be um… limited. (For instance, impressing the world and ensuring the other side can form a viable state once it’s over are unlikely to be high priorities)

  101. Like I expect or need some robed lawyer to tell me itz ok to raise arms against my government if it becomes oppressive. That kinda takes the meaning outta the whole thing, eh? Gimmie a break.

  102. Supermike-=s

    Take off the gloves, please

    I’m good with what happens

    I practice at 200 yards with ritz crackers

    If napalm doesnt get me, you got a problen.

    you going to napaln california?

  103. napalm not napalm

    The idea that the US military is going to come into my town and enforce an ilegitamate and opressive government is silly.

  104. I highly doubt the bulk of the US Military would participate in any extended “counter-insurgency” against their fellow citizens.

    Cops would, and increasingly do. Their “militarization” isn’t, exactly.

  105. govnndotcom,

    You’re website is repugnant.

  106. govnndotcom,

    You’re website is repugnant.

  107. The idea that the US military is going to come into my town and enforce an ilegitamate and opressive government is silly.

    Billy T. would disagree.

  108. you love to pee in the pool. but, no matter what you say, a win is a win.the people in D.C.can now protect themselves from the thugs. and if the D.C. government makes them ‘jump through hoops’ to get a gun, they can go to virginia and get them. D.C. is the city that only the thugs have guns, how did that work out? not so well.

  109. The militia right was struck down long ago with the wierd state guard interpretation, which violates the main purpose of the amendment.

    Thankfully I am an of age, sane, American with no criminal history. I think I’m gonna buy a personal protection handgun for me and my wife befor Obama gets into office. Cause we all know how he feels about guns DESPITE his official line on this ruling. Although I’m glad he flip flopped and said he supported it. If he waffles on a few more issues I disagree with him on I may just vote for him.

  110. Sorry if this has been said already, I really didn’t feel like reading through 110 post at 8:45. But it seems like Radley is a little too pessimistic (at least about the decision not applying to the states). Wasn’t that the whole point of the 14th amendment? In so far as it prohibits States from passing legislation that would “abridge the privileges or immunities of citizens of the United States.”

  111. BG- 8:58 pm

    I envision myself as the revolution’s idealogue-not its military advisor.

  112. Mr X, John Thatcher and Elemenope-

    Seems like I am swimming upstream.

    You are right Mr. X on the framers not being a monolith-I usually employ the qualifiers like the majority or the consensus, etc. But, I know that I forget and sometimes my statements omit necessary modifiers.

    John and Elemenope, I agree that the 9th amendment, as a practical matter, is not going to help many causes of liberty, today. I am sure Barnett undrstands this too.

  113. Justice Antonin Scalia’s opinion avoids any decision on incorporating the Second Amendment to the states, and his history suggests a strong reluctance to incorporate individual rights. Scalia’s opinion does interpret the Second Amendment as an individual right, but only for self-protection, and only in the home. The concept of the Second Amendment as a bulwark against an overly oppressive government seems dead.

    Whoa, whoa. Easy there. The court didn’t rule against any of those things, they just crafted a narrow decision leaving those questions untouched. They ruled on the specifics of the question before them. Incorporation? It was a DC case! Limited to keeping a gun in the home? It was a case about keeping a gun in the home!

  114. I’m all for the right for everyone to bear arms if we have manditory finerprint ID saftey holsters period! Anyone without one should be required to get one by a certian date determined by there state

  115. I agree that the holdings of the case are appropriately narrow.

    What bothers a lot of gun rights folks, though, is the dicta, which seems to lay the groundwork for supporting an almost unlimited array of restrictions on that right falling short of outright bans.

    What is perhaps disappointing, although perhaps appropriate judicial restraint, is the decision not to adopt a standard of review. This would have been an appropriate holding, although it was not strictly necessary given their ruling that the gun ban would not pass any existing standard of review. I’m not aware of any other BOR provision that is accorded only “rational basis” review, but I could be wrong about that.

  116. I’m all for the right for everyone to bear arms if we have manditory (sic) finerprint (sic) ID saftey holsters a technology that does not even exist yet period!

  117. I’m all for the right for everyone to bear arms if we have manditory finerprint ID saftey holsters period! Anyone without one should be required to get one by a certian date determined by there state

    Piss off jackbootied thug.

  118. RC,

    My w.a.g. is that the decision was as broad as a 5-vote majority could be found to agree upon; ie, there were probably 3 “strict scrutinists” and 2 “intermediate scrutinists.”

    Since, as you say, it wasn’t necessary to get an agreement on what that level should be in order to overturn the law, they didn’t work too hard on it.

    Look on the bright side: a decision that establishes a level of scrutiny in response to a law that would pass one level but not another is going to be a better-crafter, better-reaasoned decision than one that established that level based on such low-hanging fruit.

  119. And also, better spelled.

  120. Ok, but how is that responsive to the people saying “stop whining”? That’s basically our point, in fact. You need to build precedent to work from before you can further develop and expand a constitutional right – it doesn’t just all happen over night in a single opinion.

    This was the first SCOTUS case on guns in many many years. This is a significant precedent and it’s a step in the wrong direction.

  121. R C Dean,

    My bet is that the limiting dicta was tossed in to buy one of the five votes. Scalia may think that way, too, but it seemed a little stronger than necessary.

  122. If I kill someone with a gun, they are just as dead if I use a legal gun instead of an illegal one.

  123. I don’t buy the “guns will protect me from the government” argument. It might have applied in the days when mobs would tar and feather tax officials on a semi-regular basis. Now-a-days there is just too much of it out there that is far too well armed.

    Who are you going to shoot?

    The abusive cop? The arrogant judge? The Senator who wants to take away fun in our lifetime? The people who are tapping your phones? The goon who reads your e-mail? The fed who closed down your favourite strip club?

    At best you get one shot. In a world filled with control freaks in positions of authority, one shot does you, and everyone else, little to no good.

    Time to come up with a different solution.

  124. alan,

    On the other hand, think long-term. This Constitution has stood for well over 200 years. It could still be there in 500 more.

    Who knows that this country is going to look like 500 years from now?

    I don’t think the primary effect is that cops or anybody is worried about some lone nut shooting them. A large, armed populace, on the other hand, is going to nudge the government a little bit, in terms of what they think they can get away with. I’m not saying that privately-owned guns are, at this moment, stopping some cabal from unleashing the black helicopters on us, but that over hundreds of years, a little nudge in how people in the government view the public can result in vastly different outcomes.

  125. The feds don’t worry about the current gun owners because those people have shown that they will go along with anything the government wants to do to them, as long as they make it seem like it will happen to someone else.

    Torture? “As long as it is brown people.”

    Habeas Corpus being revoked? “It will only be used on terrorists.”

    Party affiliation being used as a qualification for government? “As long as they are Republicans.”

    Government deciding who can marry who? “As long as it is heterosexual Christians.”

    Conservatives have long shown that they will stand up for rights, but only if it is their own rights being effected. If it is someone else, screw em. (But in a non-sexual way.)

  126. “This was the first SCOTUS case on guns in many many years. This is a significant precedent and it’s a step in the wrong direction.”

    If you think this is true, you are quite confused about the previous state of the law, in which the presumption was that Miller was the controlling case, and it represented a collective rights view of the Second Amendment. Recognizing an individual right to keep and bear arms is a major, and certainly quite positive, change for the state of Second Amendment jurisprudence.

  127. Smart guns will be MANDITORY very soon starting in NJ. Thank GOD. Until then is should be manditory for fingerprint safes. I read a story about a dealer at a gun show who shoot a customer in the face.

  128. “”””I’m curious what federal agents existed at the time of the Constitution’s writing that I needed protection from? Who was the federal government going to send to arrest me that I need 4th, 5th and 6th amendement protections?”””

  129. I read a story about a dealer at a gun show who shoot a customer in the face.

    Hey, he asked for a demonstration the product’s effectiveness.

  130. The idea that the US military is going to come into my town and enforce an ilegitamate and opressive government is silly.

    You haven’t been reading Radley’s work, have you?

    It’s not the army that going to enforce tyranny.

    I don’t worry about this country becoming a military dictatorship. But in many ways, we are already a Police State(s).

  131. First of all, you’ve got to understand that the notion that an armed populace could rise up and fight the US Army to a standstill is ludicrous, with or without a legal right to own tanks.

    At odds of 150-1? With soldiers scattered all over fifty states? Picture 10,000 warfighters spread across an average state. It takes 3-1 odds to assault a fortified position. Instead the military faces 1-150 odds attacking gun owners. Say that the superior training and equipment of the military increased their attack strength by a hundred. That’s still odds of 100-150.

    The US army is worth trillions of dollars, and features not just tanks, but fighters and bombers, cruise missiles, satellite reconnaissance, laser target painting, battleships, not to mention, you know, nuclear weapons.

    But you’re talking about an insurrection with few mass targets to use these weapons against. Most of the gun owners are scattered about in rural and suburban areas, not concentrated in cities. OTOH, the civilians would know exactly where the military lived.

    Even if the 2nd Amendment were interpreted to mean, “Have at it, kids!” there’s no way that the people could rise up, whup the Armed Forces in a fair fight, and install a new government, as some people seem to fantasize about.

    Not what I argued. I said the military couldn’t whup the gun owners in a fair fight and install a new government. The defense would have the advantage.

    A coup d’?tat is staged by those not officially in power against those who are. A coup would, by definition, be against the government.

    Right. And in the U.S. we the people are the government. I was talking about a military attempt to take over, not a civilian one.

  132. I’m with 7.62, and so are lots of us, many are vets. Don’t sell an armed, substantial minority of the citizenry short. Only one in ten of us has to get one–that’s right, one for ten, and we win by a landslide.
    Sharpshooter

  133. Most of the gun owners are scattered about in rural and suburban areas, not concentrated in cities. OTOH, the civilians would know exactly where the military lived.

    Once again, it’s not the military that’s going to be oppressing us, it is/will be the police.

    The police know exactly were we live. They can break into our homes in the middle of the night while we sleep — unless you plan on being awake 24 hours a day — with SWAT squads of a dozen or more. The odds don’t look so good now, do they?

    Or, your home could be broken in to while you’re away at work. “Sorry about what happened, Mr. Civilian. We’ll do our darndest to find out who stole your gun collection.” wink and snicker.

    But do we know where they live?* Law Enforcement Officers want to make it illegal to publicize their names (re Rate My Cop Saga). Good luck finding and/or publishing their addresses.

    * In Colorado, LEOs do not have to use their home address on their drivers license. Instead, they can use their work address [source: some cops I talked to in a gun shop once]. I guess the logic is that if their wallet is stolen, the bad guys won’t be able to get that information from their I.D. But if somebody (including a cop) gains possession of your driver license, they know where to find your wife and kids.

    Which makes me wonder (off topic): why do states require the address to be printed on the driver license? It’s supposed to be a license to operate a motor vehicle on a public street. That’s all. I’m sure the DMV or police, which has the address on file, could link the DL number to a home address when necessary.

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