heller question

[30 cal slob]

correct me if i'm wrong.

all supreme court justices agreed 2A was an individual right, but the minority dissented as to whether a handgun ban was a reasonable restriction of that right.

is that the right way to think of heller?

can anyone point me to some support in the text?

thx.

-slob

 

[legaleagle_45]

all supreme court justices agreed 2A was an individual right, but the minority dissented as to whether a handgun ban was a reasonable restriction of that right.

Breyers dissent did, Steven's dissent was a bit broader.

can anyone point me to some support in the text?

Sure... from the first paragraph of Steven's dissent:

Surely it protects a right that can be enforced by individuals. But a conclusion that the Second
Amendment protects an individual right does not tell us anything about the scope of that right

Steven's adopted what I like to call the "restrictive sophisticated collective right" thesis. That theory basically asserts that it is an individual right which protects only members of the well regulated militia and protects only those weapons which are used for such purposes. Thus we have this:

When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.

Although the word "collective" is employed, it actually describes an individual right established for a purely collective reason and the individual right is strictly limited to the collective purpose.

Breyer is a bit more expansive in his dissent:

To assure 18thcentury citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern... The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are— whether they do or do not include an independent interestin self-defense—the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.

 

[searcher451]

That's a terrific explanation of Heller, Legaleagle_45, and a great refresher. Thanks for the good work there.

 

[ConstitutionCowboy]

The Amendment permits government to regulate the interests that it serves.

Sheesh. I guess Breyer has never understood "shall not be infringed", or simply ignores that phrase.

 

[cbrgator]

He understands, he's not stupid. But on such a political issue, the justices back into their reasoning and then look for support... instead of reading through all the materials and coming to a conclusion. All 9 are guilty of that, I'm just glad there were 5 that were on our side.

 

[ConstitutionCowboy]

But on such a political issue, ...

And therein lies the problem. To them it's a political issue and not a constitutional issue. I'd call that beyond the realm of good behavior - not to mention a violation of the oath they took - and demands impeachment.

The security of our Right to Keep and Bear Arms is at stake.

Woody

 

[30 cal slob]

thanks leagleagle!

 

[cbrgator]

And therein lies the problem. To them it's a political issue and not a constitutional issue. I'd call that beyond the realm of good behavior - not to mention a violation of the oath they took - and demands impeachment.

Unfortunately, personal bias is unavoidable. It will never happen, it just won't. These people are only human and everybody comes to the table with their own preconceived notions. It's just human nature.

 

[ConstitutionCowboy]

Unfortunately, personal bias is unavoidable.

Not when confronted by men of honor.

It will never happen, it just won't.

If you're referring to impeachment, just because it hasn't happened yet doesn't mean it won't.

These people are only human and everybody comes to the table with their own preconceived notions. It's just human nature.

That's why we have the Constitution. The Constitution is supposed to take "human nature", bias, and preconceived notions out of the picture. That is why we chose to live by the Constitution and not the whims of men. Otherwise, we might just as well have a king or a dictator.

At least four people currently on the Bench were chosen for their lack of moral fortitude; for their willingness to forgo the Constitution and follow the political agenda of those who appointed and confirmed them. That said, it's a miracle we have Roberts, Thomas, Alito, and Scalia.

Woody

 

[gc70]

At least four people currently on the Bench were chosen for their lack of moral fortitude; for their willingness to forgo the Constitution and follow the political agenda of those who appointed and confirmed them.

Proving that...

Unfortunately, personal bias is unavoidable.

 

[cbrgator]

Yes, we have the Constitution. But unfortunately it can be vague sometimes and requires interpretation. That is the job of the Court, to interpret the law. In interpreting the law, as I said previously, it's impossible not to have a preconceived notion.

Not to mention justices can only be impeached for high crimes and misdemeanors. While you may disagree, backing into reasoning is NOT a high crime or misdemeanor.

 

[gretske]

backing into reasoning is NOT a high crime or misdemeanor.

True, but failure to follow the oath of office is, one or the other. And, there are a couple that come dangerously close to that when they stray from the Constitution and start relying on international law instead.

Also, remember that impeachment is a political process, not a legal one, so the standards can be defined politically.

 

[DoubleAction]

There are some wise men of this forum. I watched the Oral Argument on C Span; one thing which baffled me on Heller's attorney, is when the crime rate in DC was mentioned in the same context as reasoning for the ban. Heller's attorney failed to mention the crime rate had risen during the ban. I think it was Associate Justice Scalia who finally mentioned to the attorney with the crime rate as being a factor for people to bear arms in defending themselves among such crime.
Another thing was the Argument presented by the DC Attorney on the trigger locks. The Justices questioned the reliability of having a firearm for self defense when it is disabled by a trigger lock. They asked the DC Attorney how long it took to remove the lock, load the weapon, and what it entailed. The DC Attorney stumbled on his words a little and suggested the firearm remain loaded when installing the lock, or after installing the lock.
Bad Idea; One never places or removes these trigger locks, while the firearm is loaded. This is how idiots have all these incidents of unintentional discharges. If one were to view these hearings in order to come out of it with more knowledge on firearm safety awareness; you're better off not watching. There should be a disclaimer displayed before broadcasting any such hearings on firearms.

The Attorneys and Associate Justices also discussed the use of the word "Arms" in reference to The Right To Keep And Bear Arms.

When used in the preamble, as they referred to in maintaining a an Organized Militia, they also presented the position that "Arms" was in reference to Military Weapons.

I thought "Arms" was considered to be the language, at the time of our founding fathers, when referring to Firearms. I then wondered how "Arms" was introduced into our language; so, I looked up the translations for Weapons.

Weapon : Any Tool Used For Fighting

Translations for: Weapon

Dansk (Danish)
n. - v?ben
v. tr. - armere, gribe til v?ben

Fran?ais (French)
n. - (lit, fig) arme
v. tr. - armer

Italiano (Italian)
arma

Portugu?s (Portuguese)
n. - arma (f), defesa (f)

Espa?ol (Spanish)
n. - arma, proyectil
v. tr. - armar

​

I then looked up some quotes from some of our founding fathers, on their use and application for "Arms" when referring to Civilians.

"No free man shall ever be debarred the use of arms".
Thomas Jefferson

"Arms in the hands of citizens may be used at individual discretion... in private self-defense".
John Adams

​

 

[kurtmax]

The dissents do actually have some good points, so be sure to read them if you read over the case.

I agreed with the criticism of the 'in common use' rule that the justices pulled out of their rear ends. It creates a classic chicken and egg problem.

 

[cbrgator]

True, but failure to follow the oath of office is, one or the other. And, there are a couple that come dangerously close to that when they stray from the Constitution and start relying on international law instead.

Who relied on international law? And when?

 

[pith43]

That is the job of the Court, to interpret the law

There are judges that believe that "law" and "the constitution" are living, breathing things, that must change with time.

I believe one of the biggest problems we face today is judicial activism. If they don't agree with the law, they just interpret it differently.

That being said, we are lucky Heller came out in our favor. Look how Roe vs. Wade has held up, and was debatably written on a terrible interpretation of the law. At least the second amendment was written simply enough for 5 out 9 to get it right.

 

[yokel]

Freedom certainly is at risk here at home if our elected leaders and appointed judges believe that our fundamental rights are merely "political rights". If that is true, then politicians-- and the judges they appoint-- can abridge, alter or eliminate them and the Constitution and Bill of Rights have been reduced to just rotting sheets of antique paper, the quaint relics of a dead dream.

A biased judge that is ideologically driven by prejudice and ignorance is one of the vilest and most dangerous of despots.

 

[gc70]

Who relied on international law? And when?

SUPREME COURT OF THE UNITED STATES
No. 03-633, ROPER v. SIMMONS [March 1, 2005]

Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court’s decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of cruel and unusual punishments.”

 

[ConstitutionCowboy]

Yes, we have the Constitution. But unfortunately it can be vague sometimes and requires interpretation.

Example?

Woody

"The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, 'till changed by an explicit and authentic act of the whole of the People, is sacredly obligatory upon all."

George Washington, Farewell Address, September 19, 1796

 

[gc70]

Example?

8th Amendment

...nor cruel and unusual punishments inflicted

Colonial Crimes and Punishments

On April 23, 1771, the Essex Gazette of Newport, Rhode Island, reported that "William Carlisle was convicted of passing Counterfeit Dollars, and sentenced to stand One Hour in the Pillory on Little-Rest Hill . . . to have both ears cropped, to be branded on both cheeks with the Letter R (for Rogue), and to pay a fine of One Hundred Dollars and Cost of Prosecution."

Branding and maiming may shock us, but, Friedman says, for our colonist ancestors, "the sight of a man lopped of his ears, or slit of his nostrils, or with a seared brand or great gash in his forehead or cheek could not affect the stout stomachs that cheerfully and eagerly gathered around the bloody whipping-post and the gallows."

 

[cbrgator]

The commerce clause is vague. The 4th amendment is EXTREMELY VAGUE. The 5A is vague. Apparently the 2A is vague.

 

[gretske]

There are judges that believe that "law" and "the constitution" are living, breathing things, that must change with time.

Yes, and the Founding Fathers allowed for that. The proper way to change the Constitution is by the amendment process. And, the proper way to change laws is the legislative process. To change either by judicial fiat is contrary to what the Founders envisioned. And, if you don't believe it, read the Federalist Papers.

 

[LaBulldog]

The Heller decision did nothing about registration. It left that in tact.

from the decision

"Respondent conceded at oral argument that he does
not “have a problem with . . . licensing” and that the District’s
law is permissible so long as it is “not enforced in an
arbitrary and capricious manner.” Tr. of Oral Arg. 74–75.
We therefore assume that petitioners’ issuance of a license
will satisfy respondent’s prayer for relief and do not address
the licensing requirement."



"In sum, we hold that the District’s ban on handgun
possession in the home violates the Second Amendment,
as does its prohibition against rendering any lawful firearm
in the home operable for the purpose of immediate
self-defense. Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the District
must permit him to register his handgun and must
issue him a license to carry it in the home.
* * *
"We are aware of the problem of handgun violence in this
country, and we take seriously the concerns raised by the
many amici who believe that prohibition of handgun
ownership is a solution. The Constitution leaves the
District of Columbia a variety of tools for combating that
problem, including some measures regulating handguns,
see supra, at 54–55, and n. 26. But the enshrinement of
constitutional rights necessarily takes certain policy
choices off the table. These include the absolute prohibition
of handguns held and used for self-defense in the
home. Undoubtedly some think that the Second Amendment
is outmoded in a society where our standing army is
the pride of our Nation, where well-trained police forces
provide personal security, and where gun violence is a
serious problem. That is perhaps debatable, but what is
not debatable is that it is not the role of this Court to
pronounce the Second Amendment extinct.
We affirm the judgment of the Court of Appeals.
It is so ordered."

 

[gretske]

Heller was a mixed blessing. While it avoided negating the Second Amendment, by one vote, it weakened the meaning of "shall not be infringed." Undoubtedly, this was a compromise to get Kennedy to support it. It did put aside, for the time being, the silly notion that 2A was somehow a "collective" right. There was not a shred of historical evidence that any of the Founding Fathers suggested this.

Read Heller. It is very illuminating in that it reveals how far from the original mission of the Supreme Court we have come. Since the Warren Court of the 1950s and 60s, the Court has become the ultimate law of the land, which is not supported by anything in the Constitution.

Heller is better than a sharp stick in the eye, but it is not the panacea. We have to keep fighting for our Second Amendment rights against all infringers. And, there are many.

 

[ConstitutionCowboy]

Now that I have a break in my reloading activities and have come down from the flabbergast of Diane Sawyer's diatribe titled, "If I Only Had A Gun", I can respond to cg70 and cbrgator.

Cruel. adj

1. Pleased with hurting others; inhuman; hard-hearted; without pity; without compassion; savage; barbarous; unrelenting.

2. [Of things.] Bloody; mischievous; destructive; causing pain.​

Unusual. adj

Not common; not frequent; rare.​

These are the definitions of "cruel" and "unusual" in 1791. All one needs to do is learn the definition of bloody, mischievous, destructive, pain-causing, inhuman, hard-hearted, without pity, without compassion, savage, barbarous, and unrelenting and see if a certain punishment falls into any of these categories. Next, one needs to learn the definition of not common, not frequent, and rare and see if the punishment also fits within any of these categories. If your punishment is cruel and unusual, it's unconstitutional. Notice that it must be both cruel and unusual.

The commerce clause is not vague at all. Congress's power is to make sure commerce flows freely and fairly between the several states. It works hand-in-hand with Article I, Section 10, Clause 2, and part of Clause 3. A good way to understand the limited power Congress has with the "Commerce Clause" is not that it can regulate commerce per se, but to remember it is about regulating commerce among the several states. You know, keeping it all running smoothly, making sure certain states don't interfere with commerce only passing through, etc.

In dealing with commerce in Federalist No. 42, Madison made mention of the power granted to Congress to prohibit the importation of slaves after the year 1808. It's a specific power to prohibit. There is no such power in the Commerce Clause to prohibit - or limit - anything. The Commerce Clause prohibits the several states from profiteering from commerce passing through their borders by placing any such regulation in the hands of the Union. There is no power in the Commerce Clause granted to Congress for it to prohibit or limit any trade whatsoever. It's just not there in the Constitution! It's up to the several states to decide what they would like to limit or prohibit within their respective borders.

A good example that shows how it works is the Twenty-first Amendment. It repealed any federal ban on liquor and left it up to the several states to choose. It also left the door open for intoxicating liquor to pass through a state that might have its own prohibition.

The Fourth Amendment is not vague at all. Don't be fooled by the word "unreasonable". All it means is that if an officer believes that a person might have hidden something incriminating and can show to the court enough evidence that it is so, a judge may sign a search warrant. An officer may not arrest someone on a whim, and the court will make sure of that by either issuing a warrant or not. That is what keeps searches and arrests reasonable.(Of course it's different if an officer sees an arrestable act being committed.)

You'll have to explain how you see the Fifth Amendment as being vague.

Woody