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Volokh Conspiracy

Today in Supreme Court History: March 18, 2008

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3/18/2008: District of Columbia v. Heller argued.

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  1. And the Court only took the case, I expect, because Heller had prevailed in the District court level, and it was DC appealing. So to not take it would have let the 2nd amendment prevail in their own backyard anyway.

    It was quite a surprise decision on both sides of the aisle; It had been 78 years since the Court had taken a 2nd amendment case, and the NRA even tried to sabotage the litigation fearing that the Court would use the opportunity to finally abolish the 2nd amendment.

    1. All law abiding citizens should take a gun safety course in high school, as they may a driving course. Then all should be required to conceal carry. If they fail to shoot on a violent criminal at the scene, they should be fined $100.

      1. you lost me at the "Gun Safety Course in High School", where I come from you started shooting as soon as you were big enough to pull a trigger. Got my first .22 at 10, ,38 at 13 (yes, a .38, (old S&W model 10) dating myself, it's still one of the most accurate revolvers I have. 30:06 Remington (same model MLK was shot with coincidentally, hey, JER knew his rifles) and 12g at 16. Most of my friends had guns before I did. Took the mandatory Hunter Safety Course, still haven't shot anyone (some Deer, Turkeys, yes).

  2. A good occasion to remind us exactly what Heller said - and didn't say.

    https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

    1. The dissent would have been a total victory for the gun controllers. The majority opinion... was not a defeat for gun owners, but scarcely a comprehensive victory.

      It's going to be a long hard slog getting the Court to finally treat the 2nd amendment as a full constitutional right.

      1. Brett will not rest until he has the ability to mow down an entire school because someone stole his pen.

        1. What was the point of your reply to his post?

          1. Brett has a very expansive view of the Second Amendment and that he has a right to use lethal force in defense of his property, no matter the value. So I am making fun of him with a (very) slight exaggeration of his actual views.

            1. It's a pretty expansive exaggeration, until the student body of an entire school launch a human wave attack on my home.

              As I've said, I view property as essentially as valuable as the time you spent acquiring it, which you do NOT get back if somebody steals your property.

              So they're stealing some of your life.

              In the case of a pen, almost certainly more than I'd expend doing anything about it...

              1. Like I said, a slight exaggeration of your actual views, which are reprehensible, sociopathic, would never be endorsed by the Church you hold so dear, and supremely anti-life.

                1. Supremely anti-life would imply that I thought people could be killed for no reason. Mere convenience, maybe you just don't want to be a parent. Something truly horrific like that.

                  Rather, I just refuse to ignore that people invest their lives in things. I think the aggressor should have to consider whether property is worth their life, not the victim.

                  As for the Church's views? Well, you can't be merciful if you were obligated to do something, just like it's not charity if you give somebody something they're entitled to. You don't turn the other cheek because you're obligated to let people slap you.

                  It's not going the extra mile if the mile wasn't extra.

                  1. You’re a bad person.

                    1. Why do you say that?

                    2. His lack of morality? I mean believing you can kill people over stuff because of manifestly stupid reasoning like “stuff is invested with life” all the while pretending to be a devout Catholic is extremely immoral and makes him a bad person. He doesn’t have to be one, but if he commits to this belief, he is.

                    3. "believing you can kill people over stuff"

                      Well I for one would never shoot an unarmed non-threatening person over property.

                      But once they've armed themselves, well then it's clear they think my property is worth killing or maiming for, and that's not something to lightly ignore.

                      Even the two young teen girls with a stun gun decided it was ok to put someone else's life at risk carjacking him.

                      I can imagine the outrage if he shot them both, but he would be alive today. Isn't his life worth something?

                    4. Well, LTG, there are a few interesting points to consider here.

                      You've got to consider the "property" in many respects, leads into life. Let's give you an example. You've been saving literally for decades to send your kids to college. But.. you keep the money in the house. Some thugs break in to your house. They're going to steal the money, steal the future you have for your children to send them to college.

                      Do you propose to defend your children's future with deadly force? Threaten to use a firearm? Or do you just stand aside, and condemn your kids to not having college. You can't save up the money again, there's not time. And you won't get the money back if they take it.

                  2. Faith without obligation doesn't make a lot of sense.

                    Are you mixing up moral obligation with legal obligation?

                    1. More like I'm making a point of NOT confusing justice and mercy.

                      I'm called to be merciful, that doesn't obligate me to be confused about what would be just.

        2. "It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect."

          Want to take a guess when that decision is from?

          1. Presser v. Illinois, 116 U.S. 252 (1886).

        3. Probably not a good idea to joke that way with an antisocial, autistic bigot.

          1. It's definitely not a good idea to be a leftwing extremist idiot, and yet here you are.

        4. what part of "Shall not be infringed" do you not understand? sounds like pretty much all of it.

  3. Better thing to celebrate:

    https://supreme.justia.com/cases/federal/us/372/335/

    Happy Public Defender Day! Especially to those assholes who think Gideon was wrongly decided and that governments should be able to easily railroad you into prisons if you're poor.

    And make no mistake, people who disagree with this statement from Gideon are assholes of the highest order:

    "[L]awyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. A defendant's need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama: 'The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.'"

    1. "The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours."

      I absolutely agree.

      As a ret. Fed. agent, I know the ENORMOUS and RELENTLESS power and resources the fed/state/local govts can bring against an individual and only with professional counsel can a suspect or defendant have any chance of prevailing.

      1. That is because the government itself is a lawyer criminal enterprise. The legal system is totally biased in favor of lawyer economic interests.

        1. All those Rules of Evidence, of Criminal Procedure are garbage lawyer scams filled with superstition and violations of critical thinking. They are total garbage that need to be thrown out, and rewritten for the modern era.

          1. The lawyers would get a lot more business, not less, if you rewrote everything. All the stuff that's currently settled law would have to be re-settled.

      2. apedad:

        To add to what you say:

        Gideon was a unanimous decision -- and seven of the nine Justices had been prosecutors (all except Brennan and Stewart). They were well aware of how innocent people could be railroaded into prison, and possibly they had done a bit of that themselves.

        1. well Duh, but the Constitution says nothing about providing free Legal Representation (and from the conviction/guilty plea rates, seems you get what you pay for) what next? Free Medical/Dental/Housing/Food. Idiotic proposal for every gun owner to carry liability insurance, require every convicted criminal to carry criminal defense insurance. Problem is criminals don't follow the rules, hence the need to have a gun to shoot them (how many people did Lee Harvey Oswald kill after 11-22-1963?)

    2. Gideon was found with a bunch of quarters in his pocket, right where a cigarette machine had been broken into. He was a good pro se lawyer and lost of course, because he was guilty. A slick lawyer got him the second time. He beat the ass of his wife over and over, and quickly died of alcoholism, once released by slick lawyer tricks.

      1. After the Supreme Court decision, thousands of vicious thugs were loosed on Florida, to commit 200 crimes a year each. That decision was a lawyer made environmental catastrophe, causing $billions in damage and thousands of deaths and injuries.

      2. so it had a happy ending, like with Miranda (Ernesto, not Lin Manuel) and Epstein (Sex criminal Jeffy, not the great MLB Player Mike "Superjew" Epstein, one of my favorite players as a kid, as he was Jewish AND left handed. Hey, all these big Legal Brains, why not any posts of Lefty Discrimination?

    3. Lawtalking. To whom does the law belong? Whose chattel is it? You scumbag lawyers have converted it by your garbage procedures. You all need to be rounded up, and to go to camp.

  4. Although this was a 2nd Amendment case, I've always though of it also as a 9th Amendment case with the right to self-defense being one of those rights that is retained by the people.

    1. Rightfully it ought to have been a 9th amendment case, too. If not for the fact that the Court refuses to ever apply the 9th amendment.

    2. More like a 10th amendment case:
      "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

      Since the power to arm the militia is assigned to Congress in Article 1, it arguably preempts the states.

      Now obviously the courts wouldn't have a problem with holding the power to arm also confers the power to disarm, but the 10th should preclude the states from encroaching on Congress's power to arm the militia, by requiring they own their own guns, while the 2nd of course keeps Congress itself from doing so. That's of course if you buy into the theory that the 2nd wasn't incorporated all along. But I don't see why congress' power to arm the militia isn't as sweeping as the commerce clause is.

  5. C'mon Man! How (much) lame (er) would "Hamilton " have been if there was a 10 day waiting period for Hamilton to get his pistol? Probably would have thought it over and refused to duel.

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