Gun Powder, Trigger Locks, and Justice Stephen Breyer

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During the oral arguments for D.C. v. Heller last March, one of the more interesting—and, as it turns out, important—exchanges concerned a comparison between Washington, D.C.'s strict trigger lock provisions and early American laws regulating the storage of gunpowder in cities. In essence, the question was whether or not D.C.'s trigger locks left residents effectively unarmed and thus unable to protect their homes, and were there any historical precedents for this outcome? In his dissent today, Justice Stephen Breyer returned to this comparison, arguing that even if the Second Amendment does protect an individual right to self-defense (which he accepts, though he maintains that the amendment does not contain "a specific untouchable right to keep guns in the house to shoot burglars"):

colonial history itself offers important kinds of gun regulation that citizens would then have thought compatible with the "right to  keep and bear arms," whether embodied in Federal or  State Constitutions, or the background common law. And those examples include substantial regulation of firearms in urban areas, including regulations that imposed obstacles to the use of firearms for the protection of the home.

Thus Breyer accepts the District's position that the handgun ban and accompanying trigger lock provisions do not deprive individuals of the right to self-defense. Moreover, they represent "a permissible legislative response to a serious, indeed life-threatening, problem," that of "high-crime urban areas."

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  1. Regs about the storage of powder are substantially different than regs on a trigger lock. Gunpowder is highly flammable, obviously. Improper storage could lead to the whole town burning down, etc… esp. back in 1800.

    The odds of a gunpowder stash going off in the era of whale oil and candles is a lot worse than the odds of a gun spontaneously going off (zero percent).

  2. Ah, yes, the gunpowder-storage restriction. Clayton Cramer wrote an article (cited, I think, by Scalia in Heller) demonstrating that this was to prevent fires, not to limit gun use.

  3. First a 5-4 decision against Bush on Guantanamo, and now a 5-4 decision affirming the right to keep and bear arms. I’m beginning to hope that this court will make lots of decisions before the next president nominates a new justice, no matter who the next president will be.

  4. Clayton Cramer wrote an article (cited, I think, by Scalia in Heller) demonstrating that this was to prevent fires, not to limit gun use.

    True, Scalia did note it was a fire issue, not a “gun control” issue.

  5. Moreover, they represent “a permissible legislative response to a serious, indeed life-threatening, problem,” that of “high-crime urban areas.”

    Breyer’s got it backwards. High-crime urban areas are where one would most need a gun for protection.

  6. problem,” that of “high-crime urban areas.”

    Clearly the solution is to outlaw high-crime urban areas…

    Legislators need to get to work on that.

  7. It’s one of the most pathetic dissenting opinions I’ve ever read. A high school debate team alternate could dismantle it with his index-cards tied behind his back.

  8. Clearly the solution is to outlaw high-crime urban areas…

    Isn’t it really a zoning problem? If those areas weren’t zoned as high-crime, then the criminals would just get jobs.

  9. Yeah, that dissent was awful.

    Since people have to think about crimes before they commit them, obviously the way to stop crime is to make those thoughts illegal. Hate crime legislation was a good first step, but we have a long way to go.

  10. Considering that most gun control arguments are completely full of holes, why wouldn’t the dissent be?

  11. Those laws were probably addressing fire dangers from black powder (remember they had no electrically powered hoses and air dropped flame retardants back then).

    It would be absurd, on the other hand, for the founders to make a law allowing citizens to use guns to defend themselves, except when they are in places where people might attack them the most.

  12. Apparently Breyer believes that government is the elixir of immortality.

  13. are completely full of holes

    Don’t think I didn’t catch that play on words. Very clever.

  14. Don’t think I didn’t catch that play on words. Very clever.

    I aim to please.

  15. More pathetic dissent, Timothy Noah from Slate:

    My point is that a handgun’s convenience when put to good uses is heavily outweighed by its convenience when put to bad ones. A handgun can be concealed easily, and it can be tossed down a sewer drain without attracting much notice. The barrel can be used to break a snitch’s jaw. (There’s no such thing as “rifle whipping.”) If it’s easier for a woman to handle (I presume that’s the meaning of Scalia’s gallant reference to upper-body strength), imagine how much easier it is for a 4-year-old child. It can be twirled on a table when you want to play Russian roulette. It can be used to caress a woman, as various witnesses attested in Phil Spector’s murder trial (which, despite this testimony, ended in a hung jury; a retrial commences Sept. 29). Because of its light weight, it can be accessed immediately after your wife tells you she’s been sleeping with your best friend, but well before she heads out the door with a suitcase. Because of its small size, it can be used to shoot a cop dead before the chump even realizes you’ve got it in your hand.

    My point is that a car’s convenience when put to good uses is heavily outweighed by its convenience when put to bad ones. A car can be driven quietly, and it can be stashed in long-term parking at the airport without attracting much notice. The fender can be used to break a snitch’s leg. If it’s easier for a woman to drive, imagine how much easier it is for a 4-year-old child. You can do do-nuts in a parking lot. It can be used to impregnate a woman, as various witnesses attested during high school. Because of its high speed, it can be used to run over your wife after she’s tells you she’s been sleeping with your best friend, but well before she makes it over to his apartment. Because of its ubiquity on American streets, it can be used to run-over a cop before the chump even realizes you’ve driven up behind him.

  16. “It’s one of the most pathetic dissenting opinions I’ve ever read.”

    Well, I haven’t read it but I did see this in the NY Times article:

    “A dissent by Justice John Paul Stevens asserted that the majority ‘would have us believe that over 200 years ago, the framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.'”

    So Stevens would have us believe the framers would not have made this choice? It seems rather obvious that they would have given that the constitution is filled with restrictions on the tools elected officials could use to regulate, uh, citizens, civilian or otherwise.

  17. The ads are rockin’ today. I’m getting a “Want to Learn How to Shoot Like a SWAT Cop or a Navy SEAL?” ad right now.

    I can’t wait to see the ads when H&R posts the gay community’s reaction to Heller.

  18. I dont get a hat tip for calling Breyer out on this in a previous thread?

    Dont the reason guys read the other threads before posting?

    SIX, we are now at SIX Heller threads, if I counted correctly.

  19. More pathetic dissent…

    Now that’s stupidity.

  20. The enforcement of the Second amendment is not up to the Supreme Court. The preservation of the Second Amendment is up to the people. This means your! The Second Amendment is the Amendment that secures all others.

  21. Damn, NutraSweet, how did you read that whole piece without shooting yourself?

    It’s amazing how the people who decry “gun-nuts” and “gun-fetishists” create far more elaborate gun fantasies than any gun enthusiast.

  22. This means your!

    My new motto.

  23. Isn’t it really a zoning problem? If those areas weren’t zoned as high-crime, then the criminals would just get jobs.

    Of course it is, but you just state a problem. The areas need to be re-zoned as crime free. Kinda like those nuclear free zones from a few years ago, mostly out west IIRC.

  24. It’s amazing how the people who decry “gun-nuts” and “gun-fetishists” create far more elaborate gun fantasies than any gun enthusiast.

    Idunno ’bout that . . .

  25. If only Loupeznik had insulted someone’s intelligence…

  26. Those laws were probably addressing fire dangers from black powder (remember they had no electrically powered hoses and air dropped flame retardants back then).

    FWIW, black powder is inherently more dangerous than the smokeless powders used in modern ammunition for modern guns.

  27. Think Progress comments:

    If we wish to maintain the right for all American citizens to bear arms, we must also insist that that right comes with the responsibility to bear them responsibly. Somehow, I doubt that this is what the Supreme Court Justices had in mind in their ruling. No wonder the hand gun murder rate in our country is so appalling high.

    comes with the responsibility to bear them responsibly

    That is some fancy wordplay there.

    It’s a hilarious thread, much more hysterical than we usually get. Imagine a board full of Neils and Edwards.

    Time to buy that rocket launcher? I have a reconfirmed constitutional right to own it.

    You have a right to bear arms. The Constitution says nothing about ammunition. Ban the bullets used in handguns. No more buwwets.

    I’m not nearly as concerned about your right to own a rocket launcher as I am a billionaire’s right to have a missile silo with a nuclear warhead in his back yard. After all, the second amendment doesn’t spell out any limitations on “arms”.

    But, I do believe gun owners should be required to take and pass an I.Q. test. That way we can be ensured that only the liberals will be armed.

    And when it comes to the intruder scenario, how;s your double barreld shotgun going to stack-up against an M-4 on full auto with an M-203 40 mm grnade launcher attached, weilded by a fellow 2nd Amendment fan?

  28. Colonial America had plenty of laws that were made obsolete by US constitutional ammendments. Just look at how the 13th and 19th ammendments changed local laws.

  29. Thus Breyer accepts the District’s position that the handgun ban and accompanying trigger lock provisions do not deprive individuals of the right to self-defense. Moreover, they represent “a permissible legislative response to a serious, indeed life-threatening, problem,” that of “high-crime urban areas.”

    This is the dumbest thing i’ve read all day. How does it not deprive individuals of the right to self-defense? Because they can still throw a rock at the person/thing that’s attacking them? And a permissible legislative response to a serious, indeed life-threatening problem? are you kidding me? It’s not the problem thats a problem in this case it’s the reponse thats the problem and we all know the response has been counter-productive and unconstitutional. It’s not his job to decide if the problem is big enough to ignore the constitution in order to address whatever contemporary issue is at hand! Is the state’s solution constitutional or not, regardless of the problem it’s meant to address Breyer? Bozo…

  30. ooops, messed up the italics…

  31. Those Think Progress comments would be a lot more reasonable if the Court had actually endorsed the Insurrectionist reading of the Second Amendment, but they specifically rejected it:

    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.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons
    It may be objected that if weapons that are most useful in military service-M-16 rifles and the like-may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

  32. joe,

    That whole thing read to me like Scalia weaseling the decsion down to fit Kennedy.

    “Weaseling out of things is what separates us from the animals. Except the weasel.” – Homer J Simpson

  33. The Think Progress thread is not that bad, they have some give and take at least. It’s just that they take a fairly narrow ruling “you can have a handgun in your house for protection” and make it out like it’s going to usher in the Gunpocalypse.

    I agree with the ruling, and like the individual right being affirmed, but it’s not like I’m going to be able to go after work to buy a phased-plasma pulse rifle in 40-watt range.

    Not that much has changed, just a very stupid law that only hurt law-abiding people has been struck down. That it had to go the Supreme Court should be an embarrassment to the entire judicial system.

  34. (There’s no such thing as “rifle whipping.”)

    Send this guy down to the Fort Benning bayonet range. Show him a “butt stroke.”

    It can be twirled on a table when you want to play Russian roulette.

    Obviously Breyer has no idea of the rules of Russian roulette, which does not involve spinning a pistol on a table, and can only really be played with a revolver.

    Moreover, they represent “a permissible legislative response to a serious, indeed life-threatening, problem,” that of “high-crime urban areas.”

    Because making victims more vulnerable is the best way to discourage criminals from preying on them?

    A dissent by Justice John Paul Stevens asserted that the majority ‘would have us believe that over 200 years ago, the framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.’

    Wow. The whole purpose of the Bill of Rights was to “limit the tools available to elected officials wishing to regulate civilian(s).”

    It’s amazing how the people who decry “gun-nuts” and “gun-fetishists” create far more elaborate gun fantasies than any gun enthusiast.

    Idunno ’bout that . . .

    There’s the recent anti-gun scenario about “If college students carry they’ll get into passionate classroom discussions and shoot each other.” (I seem to remember classrooms where the problem was staying awake.) Then there’s the “If concealed handgun licensees can carry in national parks they’ll be poaching animals.” Before that it was, “If off-duty police can carry it’ll cost billions in liability.” And “If airline pilots carry they’ll shoot their passengers.” And “With concealed carry fender-benders will turn into firefights.” And “When the assault rifle ban expires bodies will be stacked like cordwood.” And “Unless we ban fifty caliber rifles they’ll shoot down airliners.” And the original fantasy, “If we just pass sensible gun laws the crime rate will go way down.”

    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.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons

    Catch 22 Alert: Full-auto firearms, silencers, and short-barreled shotguns are “not in common use” because they’ve been almost banned. Therefore they may be banned because they’re “not in common use.”

  35. The NRA will file lawsuits in San Francisco, Chicago and several of its suburbs challenging handgun restrictions there based on Thursday’s outcome.

    If they are successful, this will take away all of the novelty of shooting trap at that San Francisco Trap range.

    Me: “Hey, I just got done shooting a case of 12 GA in San Fran!”

    Someone else: “BFD, anybody can do that now that the NRA got their stupid laws kicked!”

  36. Please people, if you’re going to post long quoted passages, use the “blockquote” tag. A wall of italicized text is painful to read.

  37. LarryA,

    My gun fantasies involve well armed and well oiled hot chicks.

  38. robc,

    I don’t know about that. Scalia has never been as interested in following any principles to their logical ends, so much as taking the Red side in partisan fights; and he’s never shown himself to be terribly comfortable with the prospect of private individuals being able to resist the authority of the govenrment.

  39. I don’t know about that. Scalia has never been as interested in following any principles to their logical ends, so much as taking the Red side in partisan fights; and he’s never shown himself to be terribly comfortable with the prospect of private individuals being able to resist the authority of the govenrment.

    Didn’t think I’d see myself “this”-ing a joe post today, but this.

  40. I must say, I love the auto-ad at the top of the page asking if I want to get as good with my guns as a SWAT cop.

    On the whole, I’d like to be quite a bit better, thanks. Although I doubt if I’ll ever be as good as a Navy SEAL.

  41. but it’s not like I’m going to be able to go after work to buy a phased-plasma pulse rifle in 40-watt range

    Only what you see, pal.

    Hey, you can’t do that!

  42. If it wasn’t for the waiting period, I don’t think that robot would have murdered the store owner.

  43. joe,

    What Nigel said. Fair enough. However, in those cases, I would expect a separate Thomas opinion. He is willing to take things to their logical ends. Maybe it was Thomas doing the weaseling to keep Kennedy happy. The whole thing (lack of scrutiny definition, refusing to consider incorporation, exactly what limits exist) seemed to be to declare as narrow as possible while asserting the individual right.

    It will take 20 years to get all this stuff sorted out and by that time the 2A giving an individual right will be stare decisis.

  44. Considering that most gun control arguments are completely full of holes, why wouldn’t the dissent be?

    I have a saying about time-travel movies. Someone in a discussion once asked in frustration, “Why do time travel movies have so many holes?” to which I responded “Because if you made a time travel movie without holes, you wouldn’t just have a good movie, you’d have solved the problem of time travel”

  45. If it wasn’t for the waiting period, I don’t think that robot would have murdered the store owner.

    It’s a cyborg, not a robot. Remember, if guns are outlawed, only cyborg assassins from the future will kill people.

    Come with me if you want to live.

  46. I must say, I love the auto-ad at the top of the page asking if I want to get as good with my guns as a SWAT cop. On the whole, I’d like to be quite a bit better, thanks. Although I doubt if I’ll ever be as good as a Navy SEAL.

    LOL, you beat me to it. My reaction to the ad was

    “Want to Learn How to Shoot Like a SWAT Cop…”

    NO!

    …or a Navy SEAL?”

    Sure!

  47. Scalia has never been as interested in following any principles to their logical ends, so much as taking the Red side in partisan fights; and he’s never shown himself to be terribly comfortable with the prospect of private individuals being able to resist the authority of the govenrment.

    Ain’t that the truth… Remember when he asked a some lawyer pleading a case in front of him if that lawyer was willing to “imprison Jack Bauer”? He acted as if this was a gotcha moment- that any law or constitutional limitation that the fictional Jack Bauer feels a need to violate must be inherently wrong-headed. I sat in open-mouthed awe at the concentrated idiocy that line of questioning demonstrated.

  48. My point is that a handgun’s convenience when put to good uses is heavily outweighed by its convenience when put to bad ones

    A perfect synopsis of the authoritarian world view.

    Libertarian: Most people are trustworthy most of the time. A system needs to be put in place to deal with the minority that are not.

    Authoritarian: Few people can be trusted all the time. A system needs to be put in place to prevent anyone for doing something potentially bad.

  49. Hey, some SWAT cops are good shots.

    Rmember that guy brandishing a gun a few years back as he sat on a lawn-chair? A SWAT sniper shot the gun out of the man’s hand, intentionally!

    The guy sat there looking at his empty hand in shock and then quietly surrendered. Granted with the decline of SWAT team standards nation-wide you are far more likely to get someone who shoots about as well as a cop on the beat (in other words abysmally). But, there are a few guys out there who are outstanding shots.

    None can hold a candle to Chuck Norris of course.

  50. Joe, I disagree. Scalia will follow things to their logical ands and take the Red side at the same time.

    When he has a weak case, he takes the Red side. When he’s got a strong case, he can deliver a blisteringly frank opinion which is very logically sound. Unfortunately, that doesn’t make him a better jurist.

  51. It must be great being Anthony Kennedy.

    He’s almost a king.

  52. Obviously Breyer has no idea of the rules of Russian roulette, which does not involve spinning a pistol on a table, and can only really be played with a revolver.

    You can play it with a semi. One bullet in the mag, mag in the well, cycle the slide, and let joe go first.

    It’s actually far more entertaining that way.

  53. Remember, if guns are outlawed, only cyborg assassins from the future will kill people.

    That’s ridiculous. Obviously, we would just pass laws outlawing cyborg assassins from the future.

  54. Although frequently referred to onscreen as a cyborg, The Terminator might be more properly an android. While it has skin and blood (cellular organic systems), these serve mainly as a disguise and are not symbiotic with the machine components, a trait of true cyborgs. The endoskeletons beneath are fully functional robots and have been seen operating independently, especially during the future segments of the Terminator movies.

    http://en.wikipedia.org/wiki/Cyborg

    In your face, Space Coyote!

  55. That’s ridiculous. Obviously, we would just pass laws outlawing cyborg assassins from the future.

    Zoning, man, zoning! Use cyborg free zones and make sure you cover the time travel loophole.

    Proper city planning can solve anything, even Global Warming in Madison, WI.

  56. That does it, Other Matt. That’s the final straw. I’ve had it.

    When I pimp out my 99 Civic, I’m totally not going to let you cruise for honeys with me.

    You’ll be all like, “Oh, joe, your 99 Civic is so fly! It’s even lower than a regular 99 Civic, and you can hardly see where it got keyed!”

    And I’ll be like, “Aw, yeeah.”

    And then you’ll be all: “Oh, joe, please let me cruise for honeys with you in your 99 Civic! They could sit in the back, if they’re short.”

    And I’ll be all, “Naw.”

    Then I’ll be cruising through Lowell, bass pumped way up on They Might Be Giants, hollerin’ at the honeys, by myself.

    Then who’ll be laughing, funnyman? Huh? Huh?

  57. and by that time the 2A giving an individual right will be stare decisis.

    Yeah, right. Tell me some more funny stories.

  58. joe quoted this before, but it’s worth repeating:

    But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

    This is some messed up logic. So Scalia’s argument is that the “militia” portion is just a “prefatory clause”. I agree with that. But it’s a prefatory clause which makes clear one concrete reason to keep and bear arms. What Scalia is saying that this concrete reason no longer has any meaning because the arms required to give it meaning are too big to be possessed by individuals. I don’t follow how the creation of advanced arms implies that the right to form effective militias gets tossed.

  59. “A dissent by Justice John Paul Stevens asserted that the majority ‘would have us believe that over 200 years ago, the framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.'”

    Yeah, I noticed that at nytimes.com too. And my first thought was, “But that’s very, very easy to believe, Justice Stevens.”

    We’re talking about a document written by people who had just won an insurrection against a government.

    We’re also [in many cases] talking about men who were slaveholders. Slaveholding societies tend to endorse the private holding of arms by free men. And quite vigorously so. The South wasn’t the Domination of the Draka or anything, but there certainly was a tradition of private weapons-holding there.

  60. What Scalia is saying that this concrete reason no longer has any meaning because the arms required to give it meaning are too big to be possessed by individuals. I don’t follow how the creation of advanced arms implies that the right to form effective militias gets tossed.

    It translates as “a literal reading would force me to conclude that people can own bazookas, and I don’t want to conclude that, so I’m going to make some shit up.”

  61. I’ve always had a bit of a liking for Scalia (for one thing when you take law courses Scalia tends to have more plainly written and entertaining decisions than the other justices). But I really have more and more trouble buying that he is not just a Team Red hack. I mean, one way to look at the decision today is that it is the PERFECT decision that could be reached not by a conservative but by someone who is a Republican. It gives the overarching individual right but then somehow explicitly upholds “mainstream” gun laws and punts the crucial question of what level of scrutiny to apply to gun laws. That seems to me to be a nutty way to decide this case IF you were just doing judicial work with no eye on politics…

  62. “It translates as “a literal reading would force me to conclude that people can own bazookas, and I don’t want to conclude that, so I’m going to make some shit up.”

    Shit, fluffy pretty much summed up my feelings about Scalia’s opinion in one sentence while I was typing my rambling post. Damn you fluffy! Damn you!!!

  63. It translates as “a literal reading would force me to conclude that people can own bazookas, and I don’t want to conclude that, so I’m going to make some shit up.”

    A truly excellent summary.

  64. The 2nd guarentees that we the people have the means to revolt and overthrow our government. The ability to shoot burglars is a modest side benefit.

  65. a literal reading would force me to conclude that people can own bazookas, and I don’t want to conclude that, so I’m going to make some shit up.

    Or, as I already said, a decision that Kennedy can support.

  66. It translates as “a literal reading would force me to conclude that people can own bazookas, and I don’t want to conclude that, so I’m going to make some shit up.”

    Historically, though, this leaves me wondering? What were the laws and regulations limiting private ownership of 12lb cannon and the requisite powder and shot to fire it?

  67. the 2A giving an individual right will be stare decisis.

    They may let that stand as a purely technical matter, but if they go with the weakest level of scrutiny, they will never overturn a gun control law.

    Oh, nice, pithy summary, fluff.

    What Scalia is saying that this concrete reason no longer has any meaning because the arms required to give it meaning are too big to be possessed by individuals.

    So, my neighborhood association pools it pennies and buys a few anti-tank missiles and Stingers. What’s so hard about that?

  68. What were the laws and regulations limiting private ownership of 12lb cannon and the requisite powder and shot to fire it?

    I don’t think there were any. Hell, there were privately-owned warships back in the day.

  69. I don’t think there were any. Hell, there were privately-owned warships back in the day.

    Hmmm, I want my goddamned bazooka then.

  70. I don’t think there were any. Hell, there were privately-owned warships back in the day.

    The first German submarine sunk off the coast of the USA in the WWII era was with home made torpedos, dropped from a private plane, in the service of the Civil Air Patrol.

  71. Rmember that guy brandishing a gun a few years back as he sat on a lawn-chair? A SWAT sniper shot the gun out of the man’s hand, intentionally!

    The guy sat there looking at his empty hand in shock and then quietly surrendered.

    I did a quick google search about that and found this video. They shot the gun out of his hand, but he didn’t quietly surrender. They tackled him.

  72. A SWAT sniper shot the gun out of the man’s hand, intentionally!

    Well, sure, after the shot, everyone always says “That’s what I was aiming at!”

  73. The 2nd guarentees that we the people have the means to revolt and overthrow our government. The ability to shoot burglars is a modest side benefit.

    I really think the way to view the 2nd is not as strictly “a means to revolt and overthrow the government” nor as just a defense of our rights to shoot burglars. The 2nd is the way in which the right to self-defense in general is enshrined. Both the ability of the citizenry to revolt against the government and the ability to defend one’s home are merely side-benefits of the more general right.

    On another note, these last two rulings (Boumediene v. Bush and D.C. v. Heller) have made me appreciate Kennedy more. However, when I look bad on some of his past fuck-ups (Gonzales v. Raich and Kelo v. New London) I really wish that he’d retired instead of O’Connor. She showed at least that she could come down on the right side of an issue even if it was an eventual loser.

    Gonzales v. Raich, by the way, was the one that made me write off Scalia entirely. His concurrence seemed to be evidence of what everyone’s been saying all day about his opinions: “I like Team Red, I’ll vote with them and make up excuses later…”

  74. Stevens is senile.

    I don’t know what Breyer’s excuse is.

  75. A SWAT sniper shot the gun out of the man’s hand, intentionally!

    Well, sure, after the shot, everyone always says “That’s what I was aiming at!”

    The interesting part about seeing a ref to this is that while I was in tactical instructor training this particular incident was used as an example of a misuse of a sniper.

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