The Big Heller Decision Discussion Thread - AFFIRMED 2ND AS INDIVIDUAL RIGHT

Well they say that that the gains you make are the most risk right after your victory.

Winston Churchhill also said, "never do your enemy a small injury."

With that said however, Scalia did a good job of not only laying the foundations for the litigations to come, but in the case of a subsequent activist court that would erode the right, he has laid the foundation for farther subsequent court to correct such erosion.

What he has done, is to firmly, clearly and thoroughly laydown the foundation of how "The Court" is to view and think about the Second Amendment in future generations. As long as The Court respects Stare Decisis, it will have to consider and explain its rulings against this foundation.

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I wouldn't break out the champagne just yet. The supreme court took the 'natural right' out of the 2nd amm. and replaced it with an official ruling..
The key words in their decision had to do with 'reasonable restrictions'
I smelled a rat when they accepted this case.

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So what your saying is that what Scalia said is good?

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I'm just wondering why Scalia would go on and on and on about our right to keep and bear arms for self defense but only extend that right to "in the home"??? Am I reading too much into the "in the home" thing?

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I wouldn't break out the champagne just yet. The supreme court took the 'natural right' out of the 2nd amm. and replaced it with an official ruling..
The key words in their decision had to do with 'reasonable restrictions'
I smelled a rat when they accepted this case.

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i think he went on about it because that was the focus of the lawsuit. people couldnt have functinal firarms in their own homes. I am very encouraged by him talking so much about what it means "to bear arms" I think that lays the groundwork for some very good things.

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As for unusual, again, WTH?

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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 and
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.

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I've read the decision, but not all the details. From that alone, I see this as a mixed victory, but a victory. To wit:

The Good:

"The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home."

This is clearly very important, and it stated right up front. First sentence in "held." It should stand up against a lot of testing.

"The “militia” comprised all males physically
capable of acting in concert for the common defense. The Antifederalists
feared that the Federal Government would disarm the people in
order to disable this citizens’ militia, enabling a politicized standing
army or a select militia to rule. The response was to deny Congress
power to abridge the ancient right of individuals to keep and bear
arms, so that the ideal of a citizens’ militia would be preserved."

Possibly my favorite part. Should be self-explanatory to all here.

The Bad:

"The Court’s opinion should not 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."

I do not like the last part of this. Arguably "sensitive" places are those where firearm carry is most needed, especially schools, churches, and other places where large numbers of people can be expected to be unarmed, en masse.

The UGLY:

"Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons."

This really bothers me. If a weapon isn't "dangerous" what the hell use is it? As for unusual, again, WTH? Sounds like they're angling to preserve/extend cosmetic bans like AWs, and Miller was one of the largest travesties ever perpetrated on the people. Wish they'd overturn it, but, now, it's reinforced in this opinion.

I'm sure I'll be able to say a lot more when I've read it all, but for me this is definitely a mixed victory. But, still, a victory.

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so does this mean we can someday overturn Miller

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Read in isolation, Miller’s phrase “part of ordinary
military equipment” could mean that only those
weapons useful in warfare are protected. That would be a
startling reading of the opinion, since it would mean that
the National Firearms Act’s restrictions on machineguns
(not challenged in Miller) might be unconstitutional,
machineguns being useful in warfare in 1939. We think
that Miller’s “ordinary military equipment” language must
be read in tandem with what comes after: “[O]rdinarily
when called for [militia] service [able-bodied] men were
expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.” 307 U. S., at
179. The traditional militia was formed from a pool of
men bringing arms “in common use at the time” for lawful
purposes like self-defense. [B]“In the colonial and revolutionary
war era, [small-arms] weapons used by militiamen
and weapons used in defense of person and home were one
and the same.” State v. Kessler, 289 Ore. 359, 368, 614
P. 2d 94, 98 (1980) (citing G. Neumann, Swords and
Blades of the American Revolution 6–15, 252–254 (1973)).[/B]
Indeed, that is precisely the way in which the Second
Amendment’s operative clause furthers the purpose announced
in its preface. We therefore read Miller to say
only that the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens
for lawful purposes, such as short-barreled shotguns.That accords
with the historical understanding of the
scope of the right, see Part III, infra.25
We conclude that nothing in our precedents forecloses
our adoption of the original understanding of the Second
Amendment.

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25 Miller was briefly mentioned in our decision in Lewis v. United
States, 445 U. S. 55 (1980), an appeal from a conviction for being a felon
in possession of a firearm. The challenge was based on the contention
that the prior felony conviction had been unconstitutional. No Second
Amendment claim was raised or briefed by any party. In the course of
rejecting the asserted challenge, the Court commented gratuitously, in
a footnote, that “[t]hese legislative restrictions on the use of firearms
are neither based upon constitutionally suspect criteria, nor do they
trench upon any constitutionally protected liberties. See United States
v. Miller . . . (the Second Amendment guarantees no right to keep and
bear a firearm that does not have ‘some reasonable relationship to the
preservation or efficiency of a well regulated militia’).” Id., at 65–66,
n. 8. The footnote then cites several Court of Appeals cases to the same
effect. It is inconceivable that we would rest our interpretation of the
basic meaning of any guarantee of the Bill of Rights upon such a
footnoted dictum in a case where the point was not at issue and was not
argued.

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