Issues: June 2008 Archives

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The Supreme Court Decision in Heller vs DC was handed down this morning, and it was a win for the Constitution and people of the United States!

Supreme Court says Americans have right to guns

It was a lot closer than most court watchers were expecting, 5-4 instead of 6-3 or even 7-2.

Writing for the majority, Justice Antonin Scalia said that an individual right to bear arms is supported by "the historical narrative" both before and after the Second Amendment was adopted.

It's amazing that this had to go all the way to the Supreme Court to get something that obvious written

In a dissent he summarized from the bench, Justice John Paul Stevens wrote 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."

He said such evidence "is nowhere to be found."

Justice Stevens? I think it's time to wake up now. Explicitly limiting the power of the government was precisely the point of the entire Bill of Rights, as is documented in many places by the writings of the framers. The only reason to think it's not there is the inability to process the information or the willful disregard for the evidence.

Justice Stephen Breyer wrote a separate dissent in which he said, "In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas."

Justice Breyer? That's precisely where it's most necessary. In case you weren't aware, the Supreme Court (among many others) has ruled that the police are not legally responsible for pre-emptive protection (This is a good thing. The erosion of civil liberties from such a police duty would be unconscionable). There are quite strong laws against robbery, breaking and entering, and murder. If those laws do not stop the criminal, why should one more law (against the possession of weapons) stop them? The old saying "Better to be tried by twelve than carried by six" applies just as strongly to a criminal who can be expected to encounter a large number of dangerous situations.

Scalia said nothing in Thursday's ruling should "cast doubt on long-standing prohibitions on the possession of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings."

The first part is good and necessary. As for the latter? One step at a time.

ScotusBlog

Examining the words of the Amendment, the Court concluded "we find they guarantee the individual right to possess and carry weaons in case of confrontation" -- in other words, for self-defense. "The inherent right of self-defense has been central to the Second Amendment right," it added.

The individual right interpretation, the Court said, "is strongly confirmed by the historical background of the Second Amendment," going back to 17th Century England, as well as by gun rights laws in the states before and immediately after the Amendment was put into the U.S. Constitution.

What Congress did in drafting the Amendment, the Court said, was "to codify a pre-existing right, rather than to fashion a new one."

and

The Court took no position on whether the Second Amendment right restricts only federal government powers, or also curbs the power of states to regulate guns. In a footnote, Scalia said that the issue of "incorporating" the Second into the Fourteenth Amendment, thus applying it to the states, was "a question not presented by this case." But the footnote said decisions in 1886 and 1894 had reaffirmed that the Amendment "applies only to the Federal Government." Whether the Court will reopen that issue thus will depend upon future cases.

I'd like to see that revisited. Either most of the most obnoxious laws and decisions in the country get reversed (Roe Vs. Wade, among many others, relies upon this very precedent and line of reasoning, and while I think abortion needs to be legal, Roe vs. Wade was a horrible decision), or the Fourteenth Amendment applies the Second Amendment to the states as well. It's basically a "no-lose" situation. It's just that the issue hasn't been revisited in 110 years that's the reason for the existing precedent as regards whether the Fourteenth Amendment applies thus.

Don Surber wants to make this decision a litmus test for justices and presidential candidates, a la Roe Vs. Wade on the left. I have to disagree. Single issue litmuses are something to avoid, because sooner or later the litmus tests prevent any but the most narrow and twisted ideogogues from serving. You have to look at the whole picture with a candidate - or a justice nominee. Individual issues can be regarded as "points against" or "points for" - the idea being that if a judicial nominee has an overall passing score, they should be confirmed. I can't name anybody I agree with on everything - and I don't think anyone except a victim of mass brain washing can either. This is how opinion evolves, instead of fossilizing.

Big Lizards with some history:

Many circus courts that held the amendment applied only to members of the National Guard hung their robes on an equally stupid misreading of U.S. v. Miller, 307 U.S. 174 (1939). In that bizarre case, Jack Miller and Frank Layton were charged with transporting a short-barreled shotgun across state lines. The trial court found that the National Firearms Act -- the law they were accused of violating -- was unconstitutional because of the Second Amendment; the Supreme Court overturned that verdict.

The Court ruled, at core, that the amendment only protected possession of those weapons normally used in armies or militias. No evidence was presented that short-barreled shotguns were in common use among such bodies (though of course they were): The reason no evidence was presented, I believe, was that Miller's attorneys did not show up at the Supreme Court hearing -- as their client had inconveniently been murdered in prison while awaiting appeal.

Default rulings are as binding as any other. 80% of life is showing up.

Hot Air has lots of good stuff.

Volokh Conspiracy only has a bare bones thus far, but I would expect them to have something more substantive later. Someone said the decision cited Professor Volokh three times.

Glenn Reynolds at Instapundit said he's teaching a class, but expects to have his reaction later. Powerline should also be interesting

Every once in a while, I have to check out the idiocy on the far left, so here we go

Oliver Willis calls it "head spin watch"

It will be interesting to watch those conservatives who yesterday decried the "activist" court for their death penalty decision now affirm that the gun decision today is firm and fair.

Um, Oliver? The Right to Keep and Bear Arms is a right explicitly spelled out in the text of the Constitution. The one yesterday (prohibiting the death penalty in the case of child rape) relies upon the fact that most states today do not permit it to ban it entirely. So what if ten years from now, forty-eight states want such a penalty? Because they change their laws individually, such a decision prevents any state from changing it's mind. Suppose it had been illegal for California to legalize "right turn on red light" back in the thirties? That's the way we make progress - one state or one municipality decides to try an experiment. If it works, others follow. That decision essentially prevents such experimentation. This one affirms a basic constitutional right, one (unlike the decision in Roe vs. Wade) explicitly found in the text of the constitution.

Daily Kos is truly mind-boggling to read. Justice Stevens arguing for judicial restraint? Nobody's certain what the text of the Second Amendment says? FYI:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

I didn't have time or stomach for the comments, but I imagine they'll be amusing if you've got the right mind-set.

Huffington Post is just as rational and logical as ever: Ad-hominem straight from the headline, ""Sport Shooting Ambassador Award" Winner Antonin Scalia's 2nd Amendment Ruling Does His Gun Pals Proud"

Even the first few commenters take the entry to task.

UPDATE: At ScotusBlog

It doesn't take a mathematician to recognize the narrow margin in this case. Replace any one of the five justices in the majority with a more liberal appointment - many of whom will be waiting in line if Barack Obama wins the presidency - and the outcome would have flipped. Americans would have lost the individual right to keep and bear arms. For some, this may be a welcome change, but for many of us, it's the sort of thought that makes the hairs on the back of our necks stand up.

text of the decision is here

Dave Kopel

After analyzing the text of the Second Amendment, the majority opinion then detailed the interpretation of the Second Amendment in the first half of the 19th century, showing that every legal scholar (except for one minor exception), along with state and federal courts, recognized the Second Amendment as an individual right to have guns for various purposes, including self-defense.

As Scalia explained, after the Civil War, Congress passed the Freedmen's Bureau Act of 1866, the Civil Rights Act of 1871, and then the Fourteenth Amendment -- all with the explicit purpose of stopping southern governments from interfering with the Second Amendment rights of former slaves to own firearms to protect their homes and families. All the scholarly commentators of the late 19th century -- including the legal giants Thomas Cooley and Oliver Wendell Holmes, Jr. -- recognized the Second Amendment as an individual right.

and

The 1939 case of United States v. Miller, which held that a tax and registration requirement for sawed-off shotguns was not facially unconstitutional, is heavily relied on by the dissent. But the majority points out that Miller's analysis of the history of the Second Amendment was cursory; Miller did not even submit a brief, and, as explicated in a law review article cited by Scalia, the Miller case appears to have been a collusive case involving a corrupted defense attorney doing the bidding of the prosecutor. Most importantly, the Miler opinion turned on whether the particular type of gun was protected by the Second Amendment, and did not declare that only militiamen had a right to arms.

and (important!)

Justice Scalia accurately noted that the Breyer approach would negate the very decision to enact the Second Amendment: "We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach. The very enumeration of the right takes out of the hands of government -- even the Third Branch of Government -- the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad."