This is something we "won" in the 1700s. We simply retook a narrow slice of ground in territory that isn't even a state, and very narrowly (one vote). There is a long battle ahead (incorporation, defining a militia and what a militia is allowed to have) simply to regain what was ours in the 1700s. Some of it may never be regained, until the dissenters on this court are gone.
The Big Heller Decision Discussion Thread - AFFIRMED 2ND AS INDIVIDUAL RIGHT
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This is something we "won" in the 1700s. We simply retook a narrow slice of ground in territory that isn't even a state, and very narrowly (one vote). There is a long battle ahead (incorporation, defining a militia and what a militia is allowed to have) simply to regain what was ours in the 1700s. Some of it may never be regained, until the dissenters on this court are gone.
bobernet
Member
My point exactly. This is better than it could have gone, but is not the monumental victory many seem to believe.
Big45
member
just heard the term "dewedgeify"
Titan6
member
No it was not. Stevens held that the right only applied in the context of a militia. Unless you believe in an "Army of One".
Sebastian the Ibis
Member
I agree with you Dbl0Kevin. Scalia is quite possibly the most brilliant person alive - and a gun lover and he had plenty of time to write this. There is soooooo much nuance tucked into this opinion that we will be going over it for Centuries.
Also note that he also didn't say "for example" or anything thing else that would indicate that this list was non-exclusive. Therefore this opinion can be used to cast doubt on possession, storage, transportation, non-commercial sales, manufacture etc.
Personally, I want to see Gura or whomever else throw the preferred militia language at Chicago's "special deputies" and non-prosecutions. Brilliant the way Scalia opened up a whole equal protection argument here.
Also note that he also didn't say "for example" or anything thing else that would indicate that this list was non-exclusive. Therefore this opinion can be used to cast doubt on possession, storage, transportation, non-commercial sales, manufacture etc.
Personally, I want to see Gura or whomever else throw the preferred militia language at Chicago's "special deputies" and non-prosecutions. Brilliant the way Scalia opened up a whole equal protection argument here.
ctdonath
Member
FYI: In DC, "machinegun" is defined by capacity, not rounds fired per trigger pull.
usmarine0352_2005
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What did Zumbo do that ruined his career?
ctdonath
Member
Zumbo basically accused all EBR (AR15, etc.) owners of being terrorists.
Big45
member
And he has since been "dewedgified"
loneviking
Member
I read the opinion and there are several, interesting points to this decision:
1. There is an individual right, not a collective right. And, this right is not formed by the U.S. Constitution, but is a recognition of a pre-existing right! Justice Scalia takes great pains to go back into English history to show this pre-existing right and how this English right was incorporated into the American constitution.
2. That the right is seperate from militia service. In fact, Scalia points out that the 'militia' referred to was the entire body of citizens, from which Congress could pull, equip and train. This seperation of an individual right that exists apart from militia service is a huge win for those of us who believe in gun rights.
3. The level of scrutiny is 'NONE'! The 2nd Amendment cannot be declared extinct through the use of a level of review. The founders/framers did the balancing act when they drafted the amendment. The amendment right is always going to exist and is ITSELF the standard against which a decision must be made. Courts must rely on the balancing act of the framers and not on some current standard.
4. I find it interesting how, as he has done in the past, Justice Scalia repeatedly punctures the dissenting justices arguments using their own words in past decisions. He really tears up Justice Ginsburgs arguments in the dissenting opinion by pointing to past opinions in which she held to a different defintion for 'to keep and bear arms'. By doing this, Scalia has laid down a gauntlet for any future court that wants to rely on one of the two dissenting opinions to show the logic or consistency of those arguments.
5. Finally, Scalia really does a good job of showing how consistent 2nd amendment cases were up until just recently. The decision shows that stare decisis was used to build upon the original intent of the framers, and that there was a coherent body of case law that had the understanding of an individual right. This signals the understanding that the court is not going off on a new direction, but is correcting the abuses of the last forty or fifty years. Again, it's a challenge to any future court that wants to rely on the dissents to prove this viewpoint wrong.
This is a huge win, and it will now lead to lots of new litigation but the difference is that now the litigation will be carried out with the proviso that an individual right is enshrined (protected, but not created) in the constitution, and it is seperate from military service. You cannot get rid of the right by getting rid of the constitution, which has big implications for situations such as the gun grabs of hurricane Katrina.
Pay attention to these two sentences: 'But the enshrinement of certain constitutional rights necessarily takes certain policy choices off the table'. And 'these include the absolute prohibition of handguns held and used for self-defense in the home.'
Notice that although handgun prohibitions are mentioned, the verbiage is 'these include', not 'these are limited too'. Lots more litigation coming up, but we have at least one protected area enshrined within the 2nd amendment.
1. There is an individual right, not a collective right. And, this right is not formed by the U.S. Constitution, but is a recognition of a pre-existing right! Justice Scalia takes great pains to go back into English history to show this pre-existing right and how this English right was incorporated into the American constitution.
2. That the right is seperate from militia service. In fact, Scalia points out that the 'militia' referred to was the entire body of citizens, from which Congress could pull, equip and train. This seperation of an individual right that exists apart from militia service is a huge win for those of us who believe in gun rights.
3. The level of scrutiny is 'NONE'! The 2nd Amendment cannot be declared extinct through the use of a level of review. The founders/framers did the balancing act when they drafted the amendment. The amendment right is always going to exist and is ITSELF the standard against which a decision must be made. Courts must rely on the balancing act of the framers and not on some current standard.
4. I find it interesting how, as he has done in the past, Justice Scalia repeatedly punctures the dissenting justices arguments using their own words in past decisions. He really tears up Justice Ginsburgs arguments in the dissenting opinion by pointing to past opinions in which she held to a different defintion for 'to keep and bear arms'. By doing this, Scalia has laid down a gauntlet for any future court that wants to rely on one of the two dissenting opinions to show the logic or consistency of those arguments.
5. Finally, Scalia really does a good job of showing how consistent 2nd amendment cases were up until just recently. The decision shows that stare decisis was used to build upon the original intent of the framers, and that there was a coherent body of case law that had the understanding of an individual right. This signals the understanding that the court is not going off on a new direction, but is correcting the abuses of the last forty or fifty years. Again, it's a challenge to any future court that wants to rely on the dissents to prove this viewpoint wrong.
This is a huge win, and it will now lead to lots of new litigation but the difference is that now the litigation will be carried out with the proviso that an individual right is enshrined (protected, but not created) in the constitution, and it is seperate from military service. You cannot get rid of the right by getting rid of the constitution, which has big implications for situations such as the gun grabs of hurricane Katrina.
Pay attention to these two sentences: 'But the enshrinement of certain constitutional rights necessarily takes certain policy choices off the table'. And 'these include the absolute prohibition of handguns held and used for self-defense in the home.'
Notice that although handgun prohibitions are mentioned, the verbiage is 'these include', not 'these are limited too'. Lots more litigation coming up, but we have at least one protected area enshrined within the 2nd amendment.
random thoughts:
Now that gun ownership is an INDIVIDUAL RIGHT, then ammo bans and restrictions are defacto bans and restrictions. Previously, you could not challenge an ammo ban or restriction because you had no right to do so! Now, we need a ruling that a ban or restriction on ammo is a ban or restriction on the 2nd.
The NRA has its work cut out for them. If they want respect, now is the time to step up to the plate.
Semi-automatic weapons ARE common. All the things on the AWB list ARE common. Congress will try to say that they are dangerous, but FBI statistics and common use will prevail. This sets up a good challenge to any AWB.
How common is "common"? The decision seems to prohibit the introduction of any new weapons to the civilian population, as they could all be banned before they became "common". And the machine gun ban is the only thing that prevents FA weapons from being "common"... can the government purposefully make a weapon "uncommon" by preventing it's adoption by the civilian population?
While licensing may be perfectly acceptable, a FEE is an infringement. Just as it is okay to force voter IDs as long as the ID is free and readily available (must issue), it is perfectly acceptable to license gun ownership as long as the license is FREE and freely available. i.e. MUST issue and FREE.
There is a boatload more to ponder.
Now that gun ownership is an INDIVIDUAL RIGHT, then ammo bans and restrictions are defacto bans and restrictions. Previously, you could not challenge an ammo ban or restriction because you had no right to do so! Now, we need a ruling that a ban or restriction on ammo is a ban or restriction on the 2nd.
The NRA has its work cut out for them. If they want respect, now is the time to step up to the plate.
Semi-automatic weapons ARE common. All the things on the AWB list ARE common. Congress will try to say that they are dangerous, but FBI statistics and common use will prevail. This sets up a good challenge to any AWB.
How common is "common"? The decision seems to prohibit the introduction of any new weapons to the civilian population, as they could all be banned before they became "common". And the machine gun ban is the only thing that prevents FA weapons from being "common"... can the government purposefully make a weapon "uncommon" by preventing it's adoption by the civilian population?
While licensing may be perfectly acceptable, a FEE is an infringement. Just as it is okay to force voter IDs as long as the ID is free and readily available (must issue), it is perfectly acceptable to license gun ownership as long as the license is FREE and freely available. i.e. MUST issue and FREE.
There is a boatload more to ponder.
This was a loss, not as big of a loss as one more vote against, but still a loss.
'Reasonable restrictions' combined with 'in common use' means that restrictions that reduce what is 'in common use' can continue, and over time as they fall out of common use because the 'reasonable restrictions' make ownership of certain types too difficult, they can be declared not in common use.
Machineguns were in 'common use' in the 1920s for example, so the NFA would not have been allowed, yet it was and so they are no longer in 'common use' (a term that can easily be manipulated).
This is one of the more anti decisions, far worse than Miller which actualy said it was military type weapons that were protected.
Most of us gained nothing over what was already on the books (unless in a city that bans handguns) but most of us lost on other fronts now fully open to attack and affirmed by the SCOTUS.
'Reasonable restrictions' combined with 'in common use' means that restrictions that reduce what is 'in common use' can continue, and over time as they fall out of common use because the 'reasonable restrictions' make ownership of certain types too difficult, they can be declared not in common use.
Machineguns were in 'common use' in the 1920s for example, so the NFA would not have been allowed, yet it was and so they are no longer in 'common use' (a term that can easily be manipulated).
This is one of the more anti decisions, far worse than Miller which actualy said it was military type weapons that were protected.
Most of us gained nothing over what was already on the books (unless in a city that bans handguns) but most of us lost on other fronts now fully open to attack and affirmed by the SCOTUS.
I think you're wrong.
If you read in the decision where Scalia deals with Miller and the '34 NFA, he points out that a reading of the "Militia Suitability Test", and noting that Miller had the sutiability of a SBS scrutinized and NOT an MG, that the results could be "Startling".
Note: Startling means startiling, nothing more, nothing less. The justices at that level, especialy Scalia, are very precise with the words they use.
By "startling", he did not mean "bad", "dangerous", or "scary".
I think he's opening the door for at least a challenge to the '86 MG freeze.
If you read in the decision where Scalia deals with Miller and the '34 NFA, he points out that a reading of the "Militia Suitability Test", and noting that Miller had the sutiability of a SBS scrutinized and NOT an MG, that the results could be "Startling".
Note: Startling means startiling, nothing more, nothing less. The justices at that level, especialy Scalia, are very precise with the words they use.
By "startling", he did not mean "bad", "dangerous", or "scary".
I think he's opening the door for at least a challenge to the '86 MG freeze.
lazyeye
Member
Now I need to go buy a gun to celebrate.
Big45
member
Yeah the ultimate authority letting jane and joe blow, who didn't care one way or the other, know that the 2nd means what it says is a loss.
Same as in sports, some people have a fear of success.
Actually, this is GOODNESS. For Heller, for example, no one was at risk of going to prison because DC pushed the case. Every time a local jurisdiction pushes a case that will obviously result it a better situation for pro 2A, that is GOODNESS. No one is at risk of going to jail and the pro 2A agenda gets advanced.
Previously, it was nearly impossible to get a case to court because gun ownership was not an individual right, and one would have to risk going to prison to prove otherwise. DC made the ban SO onerous and pushed their right to do so SO hard that someone was able to challenge the ban without going to jail.
They didn't let them know what it meant. The 2nd was put in place by the founding fathers to allow resistance to tyranny that would be armed with the latest military firepower.
Saying that capable firepower can be restricted but that pea shooters easily stopped by even the lowest levels of body armor are suddenly okay because it is an "individual right' did not let anyone not informed know what the 2nd was about.
It also affirmed that prohibiting classes will stand and not be challenged. Essentialy the very government the arms are supposed to be a deterrent to can declare who can and cannot have them.
Something that surprises me with Clarence Thomas on the bench considering most armed black resistance during the civil rights era was by prior felons (which was legal until '68). They could have all just been locked up for felony possession and had any arms taken away with the backing of the SCOTUS now.
For those who wanted 100% of everything they would like out of the 2A, they can spin this decision to be bad.
I just don't see how any decision that says that the constitution means what it says can ever be bad.
Granted, it was a very narrow decision, but that can be worked on to broaden the legal system's understanding of what the RTKBA encompasses.
I just don't see how any decision that says that the constitution means what it says can ever be bad.
Granted, it was a very narrow decision, but that can be worked on to broaden the legal system's understanding of what the RTKBA encompasses.
H'mmm.
I think, once the NRA has filed in Chicago et-al, I will wander down to my local police station and ask them who I need to talk to about NJ's block on 15+ magazines.
The issue of course is that 15 round AR-15 magazines are inherently not "common usage" and I don't want to be in violation of the law.
Of course 20's and 30's are "common usage" and since nice vendors need a PD headed letter of authorization to sell them to an NJ resident, can I have one please? If not, can, who do I escalate this to?
I think, once the NRA has filed in Chicago et-al, I will wander down to my local police station and ask them who I need to talk to about NJ's block on 15+ magazines.
The issue of course is that 15 round AR-15 magazines are inherently not "common usage" and I don't want to be in violation of the law.
Of course 20's and 30's are "common usage" and since nice vendors need a PD headed letter of authorization to sell them to an NJ resident, can I have one please? If not, can, who do I escalate this to?
General Geoff
Member
I wouldn't test a New Jersey police department's patience. You may be right, but being smug about it will only get you arrested and charged by a corrupt police power.
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