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

[Groovski]

My main objection to the line of "thought(s)" on Miller is the misconstrual of what the Court truly said in Miller. Surely it is understood by these nine that the Court in Miller pulled the "militia use" caveat out of the ether, and that The Fab Four along with the switch-hitter also pulled the alternate, and as totally irrelevant, definition of "in common use" out of the ether as well.

No argument that the Court pulled a lot out of the air or elsewhere in Miller. The "common use" term comes from Miller, though - Scalia et. al. did not make it up. I searched the decision again, Scalia brings up "common use" 4 times, putting it in direct quotes all but once. Each time it's clear he's referring to the Miller decision. While Scalia seemed to validate Miller (probably to placate Kennedy and had no reason in Heller to overturn), it's telling that he didn't apply the Miller test directly to decide Heller.

It may be that this addition of "in common use" - meaning in common use by Joe and Joy Average - to the definition of "in common use" by the militia that has stood since 1939, is just the ambiguity we need in order that: "has some reasonable relationship to the preservation or efficiency of a well regulated militia" comes before the court in the future for -well - lets call it "Clarity". It may turn out to be the fly in the ointment to do away with Miller. When you can pull two meanings out of the same context, the context is untenable.

Maybe I'm not understanding what you're seeing in the decision, but there's plenty of things wrong with Miller in addition to the above:

- Miller never showed up in Court to fully defend his case (he was dead, I think)
-Miller's interpretation of what the militia is is wrong - it only defines the portion of the militia called by Congress, not the whole militia.
- The Miller SC misapplied their own test: trench guns were in common use by the militia in WWI.
- Miller, interpreted literally the way some antis do, denies the right to be in the militia to women, the disabled, and people over 45 - this is in the same sentence as the infamous "in common use at the time" if I recall correctly.
- The Miller test would allow full auto (not a problem for us, but a problem for antis)
- Scalia, laid the groundwork to argue the individual right to self-defense embedded in 2A renders the Miller test unsuitable, because there's plenty of self-defense weapons not used by the militia that we have a right to. Scalia quote:

See also Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 244 (1983) (19th-century courts
never read “common defence” to limit the use of weapons to militia service)

This makes the Miller test a test of what they cannot ban at best rather than THE test. Scalia's words about self-defense being a right unconnected to the militia are pretty powerful. What Gang of Four tyrant would deny a disabled, 46-year old woman the right to use pepper spray because it's not used by Miller's militia and she's not a member?

I wish Scalia had ended it right here and now. If he only needed himself, Thomas, Roberts, and Alito, he probably would have done just that.

I think, given friendly courts in the future, he ended it "between the lines" of the decision.

They do know this, of that I'm sure. I'm afraid we'll have to choke it out of them before they'll put it on paper, though. We should never be less armed than those in government.

Scalia does say this:

There are many reasons why the militia was thought to be “necessary to the security of a free state.” See 3 Story §1890. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary—an argument that Alexander Hamilton made in favor of federal control over the militia. The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961) (A. Hamilton). Third, when the able-bodied men of a nation are trained in arms and organized, they are Cite as: 554 U. S. ____ (2008) 25 Opinion of the Court better able to resist tyranny.

The more I digest the decision and other interpretations, the more I realize:

- Scalia (and his allies) did an excellent job laying the groundwork.
- Scalia claimed every inch he possibly could without flipping Kennedy - this case was decided by a couple of sentences.
- The Gang of Four dissenters believe in an individual right that can be taken away at the whim of government, in other words, no right at all. They interpret the constitution anyway they want and have no particular regard for it.
- We can still lose. Friendly courts need to establish strict scrutiny, incorporation, and as you say, revisit Miller. If strict scrutiny and incorporation are not established, our right is guaranteed to disappear over time.

 

[brickeyee]

These are the sections of DC law vacated:

7-2502.02(a)(4) A registration certificate shall not be issued for a …Pistol not validly registered to the current registrant in the District prior to September 24, 1976, except that the provisions of this section shall not apply to any organization that employs at least 1 commissioned special police officer or other employee licensed to carry a firearm and that arms the employee with a firearm during the employee’s duty hours or to a police officer who has retired from the Metropolitan Police Department.

22-4504(a) No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed. Whoever violates this section shall be punished as provided in § 22-4515, except that:
(1) A person who violates this section by carrying a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon, in a place other than the person’s dwelling place, place of business, or on other land possessed by the person, shall be fined not more than $5,000 or imprisoned for not more than 5 years, or both; or
(2) If the violation of this section occurs after a person has been convicted in the District of Columbia of a violation of this section or of a felony, either in the District of Columbia or another jurisdiction, the person shall be fined not more than $10,000 or imprisoned for not more than 10 years, or both.

7-2507.02 Except for law enforcement personnel described in § 7-2502.01(b)(1), each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.

The rest of the ruling is dicta, though the portions that explain the reasoning of the decision can be considered binding.

 

[Prof. A. Wickwire]

Here is some of the text from and E-mail I received from Gunlaws, the publishers of many books on the details of firearms legislation.

The full article can be found on Alan's Blog.

The core issue of "judicial scrutiny" is now established -- better than
we had dreamed -- in what will be known as Famous Footnote #27 (p56).
Laws impinging on the Second Amendment can receive no lower level of
review than any other "specific enumerated right" such as free speech,
the guarantee against double jeopardy or the right to counsel (the
Court's list of examples).

This is a tremendous win, and overlooked in all initial reviews I've
seen. Attorney Mike Anthony was the first to spot it, way to go Mike.
"Strict scrutiny," which many folks sought, is a term without formal
definition that could prove problematic. I was hoping for a test of some
sort and got more than I hoped for. By recognizing 2A as a "specific
enumerated right" the majority ties 2A to the rigid standards and
precedents of our most cherished rights. That's as strong as there is.
Very clever indeed.

Coupled with the Court's destruction of a scrutiny scheme invented by
Breyer in his dissent, 2A protection is now extra robust (but antis will
continue their attacks). Seeking to justify the
total-gun-bans-are-perfectly-OK school of thought (the one B. H. Obama
supported until this decision came out and he immediately reversed
himself), Justice Breyer proposed a brand new level of scrutiny, not
just the familiar strict, intermediate or rational-basis levels (from
highest to lowest). He invented a new low he calls "interest-balancing
inquiry." The Court calls it a "judge empowering... freestanding"
approach wholly without merit or precedent and dismisses it completely
as a worthless subterfuge. p62

Things are looking better and better.

Sincerely,

Prof. A. Wickwire

 

[ctdonath]

Footnote #27:

27 JUSTICE BREYER correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 8. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U. S. ___, ___ (2008) (slip op., at 9–10). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments. . .”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.

 

[Frohickey]

Quote:
Can we have Schumer classified as dangerous and unusual?

If not Schumer, certainly Waxman, or Frank.

You guys are forgetting Ted Kennedy and Frank Lautenberg.

 

[Groovski]

I'm all for a new, spectacular find in the decision, but wasn't it common knowledge that the entire Bill of Rights are enumerated rights?

If this is indeed a spectacular footnote, then perhaps Scalia has a great sense of humor, because the case Scalia references in Footnote 27 has it's own "Footnote 4," called "the most famous footnote in constitutional law."

http://en.wikipedia.org/wiki/United_States_v._Carolene_Products_Co.#Footnote_Four

Ironically, Footnote 4 started the whole idea of strict scrutiny:

Footnote Four introduced the idea of levels of judicial scrutiny. In keeping with the New Deal Revolution, Footnote Four established the rational basis test for economic legislation, an extremely low standard of judicial review. The "rational basis test" mandates that legislation (whether enacted by Congress or state legislatures) which deals with economic regulation must be rationally related to a legitimate state interest

 

[ctdonath]

wasn't it common knowledge that the entire Bill of Rights are enumerated rights?

Well, apparently it's news to four of the judges sitting on the Supreme Court right now.

 

[usmarine0352_2005]

Here is some of the text from and E-mail I received from Gunlaws, the publishers of many books on the details of firearms legislation.

The full article can be found on Alan's Blog.

Quote:
The core issue of "judicial scrutiny" is now established -- better than
we had dreamed -- in what will be known as Famous Footnote #27 (p56).
Laws impinging on the Second Amendment can receive no lower level of
review than any other "specific enumerated right" such as free speech,
the guarantee against double jeopardy or the right to counsel (the
Court's list of examples).

This is a tremendous win, and overlooked in all initial reviews I've
seen. Attorney Mike Anthony was the first to spot it, way to go Mike.
"Strict scrutiny," which many folks sought, is a term without formal
definition that could prove problematic. I was hoping for a test of some
sort and got more than I hoped for. By recognizing 2A as a "specific
enumerated right" the majority ties 2A to the rigid standards and
precedents of our most cherished rights. That's as strong as there is.
Very clever indeed.

Coupled with the Court's destruction of a scrutiny scheme invented by
Breyer in his dissent, 2A protection is now extra robust (but antis will
continue their attacks). Seeking to justify the
total-gun-bans-are-perfectly-OK school of thought (the one B. H. Obama
supported until this decision came out and he immediately reversed
himself), Justice Breyer proposed a brand new level of scrutiny, not
just the familiar strict, intermediate or rational-basis levels (from
highest to lowest). He invented a new low he calls "interest-balancing
inquiry." The Court calls it a "judge empowering... freestanding"
approach wholly without merit or precedent and dismisses it completely
as a worthless subterfuge. p62
Things are looking better and better.

Sincerely,

Prof. A. Wickwire

Well, if this is true, then it's really good.



No offense and not to doubt anyone, but..........


Can other people verify that this is true?

 

[riverdog]

If by true you mean is it in Scalia's opinion, then yes, that's verbatim from footnote 27 of the majority opinion.

 

[usmarine0352_2005]

If by true you mean is it in Scalia's opinion, then yes, that's verbatim from footnote 27 of the majority opinion.

So it's as good as it seems?


It's solid and makes it hard damn near strict scrutiny? Or close to it?

 

[HuntAndFish]

Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms.

No disrespect, but I don't see it. To me, Footnote #27 is just ruling out the lowest level of scrutiny as inappropriate. It isn't indicating a lvel to use going forward.

ETA: Well, maybe it's suggesting one?

 

[ConstitutionCowboy]

I agree with HuntAndFish. Footnote 27 is not an endorsement for strict scrutiny to be applied to the the Second Amendment, but a statement that "rational-basis scrutiny" is as improper if applied to the Second Amendment as it would be if applied to any of the other protections of our enumerated rights.

Woody

 

[ctdonath]

There's a lot in the ruling that, on multiple readings, looks like he's inviting cases.

 

[Groovski]

As long as we're looking for buried references, how about this one. Scalia says (p 20):

By the time of the founding, the right to have arms had
become fundamental for English subjects. See Malcolm
122–134. Blackstone, whose works, we have said, “constituted
the preeminent authority on English law for the
founding generation,” Alden v. Maine, 527 U. S. 706, 715
(1999), cited the arms provision of the Bill of Rights as one
of the fundamental rights of Englishmen. See 1 Blackstone
136, 139–140 (1765). His description of it cannot
possibly be thought to tie it to militia or military service.
It was, he said, “the natural right of resistance and selfpreservation,”
id., at 139, and “the right of having and
using arms for self-preservation and defence,” id., at 140;
Cite as: 554 U. S. ____ (2008) 21
see also 3 id., at 2–4 (1768). Other contemporary authorities
concurred. See G. Sharp, Tracts, Concerning the
Ancient and Only True Legal Means of National Defence,
by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme,
The Rise and Progress of the English Constitution 886–
887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory
Reflections on Police 59–60 (1785). Thus, the right secured
in 1689 as a result of the Stuarts’ abuses was by the
time of the founding understood to be an individual right
protecting against both public and private violence.

Fundamental rights:

In American Constitutional Law, fundamental rights have special significance under the 14th Amendment to the Constitution. Via the due process and equal protection clauses of that amendment, the Supreme Court has held that some rights are so fundamental, that any law restricting such a right must both serve a compelling state purpose, and be narrowly tailored to that compelling purpose.

While the recognition of such rights have changed over time, they are generally coterminous with the rights laid out in the Bill of Rights, though not all rights in the Bill of Rights are fundamental. For example, states are not required to obey the Fifth Amendment requirement of indictment by grand jury. Many states choose to have preliminary hearings instead of grand juries The Supreme Court has also recognized some other fundamental rights not specifically enumerated in the Constitution, including:

the right to privacy
the right to marry and procreate
the right to interstate travel
Any restrictions on these rights on the basis of race or religion are evaluated with strict scrutiny. If they are denied to everyone, it is an issue of substantive due process. If they are denied to some individuals but not others, it is also an issue of equal protection.

http://en.wikipedia.org/wiki/Fundamental_right#American_Constitutional_Law

Scalia calls the right to arms fundamental, a previous supreme court calls the rights fundamental in 1999, fundamental rights receive strict scrutiny, therefore 2A gets strict scrutiny.

 

[brigadier]

I just read it. The mindset and terms of Judgment used by Stevens and Breyer is very terrifying, especially Breyer thinking entirely about personal opinions of how to deal with a localized problem, paying no attention to the law in decision. I feel no greater sense of insecurity in this country then to know that people like that are holding any positions of authority in this country, much less supreme court judges.
On the contrary. I AM pleased with the ruling, though I will vouch that it isn't going to hold much weight anywhere in Liberal parts of the US other then to say that people have the right to own TYPES of weapons commonly in use at the time, handguns in this case. The really treading in the middle one is assault weapon bans, which future legislation can, with some interpretations, uphold, while others may go the exact opposite direction and legalize basically any small arm commonly in use by the military. In places like CA though, I have little faith in courts like the 9th circus (despite my appreciation with many of their decisions) following the law rather then, under the right circumstances, acting like Breyer and Stevens. If they follow the law then we may see that overturned, but don't expect much in that respect. Like the liberal judges or not, intense work in law is their job and has been for years. They know what the effects of written law are and as Breyer pointed out, the ruling doesn't touch a whole lot. The one thing that it has an obvious effect on is that no where in the country can a law biding citizen be deprived of owning a handgun or long gun. The less obvious (but still out in the open) effect it has is that you have the right to USE the gun to defend yourself, your property and those under your care, so we can say good by to these lawsuits and criminal imprisonment against people who shoot home invaders and store robbers in self-defense.
The most borderline effect it may have is on carry laws. Clearly, it upholds prohibition of the possession of weapons in to certain areas (gun free zones as we call them) but goes no further. It even sights some court rulings as justified in banning concealed carry though allowing open carry. Though they didn't actually mention it (and should have, though probably failed intentionally) the base to uphold is that banning concealed carry did not ban carry. In other words, their is strong argument to ban concealed carry by it's self, or open carry by it's self, but not to ban both together. Though we probably won't see it happen right away, there is a potential for this ruling to result in nation wide requirement on the states to allow anyone to carry a handgun on their person, leaving it up to the states to regulate whether concealed, open or both.
One final note. Since Obama will most likely be our next president and says he intends to protect our 2nd amendment rights, but has previously interpreted this as only a hunting right, I am curious on how this decision may or may not affect his position on gun rights and thus treatment of it provided he becomes our next president. As little faith as I have in him, i have just a tiny bit more faith in him showing SOME regard for constitutional law then McCain, though I see little enough difference between them that I have no intention of voting for either.

 

[EOTechRulesAll]

Does anybody have a link to the entire audio of the SCOTUS arguments dealing with Heller? Or, failing that, as much audio as is available?

Thanks

 

[Owens]

Broken down into parts: http://www.downrange.tv/rkba/dc-v-heller.htm

As one LARGE MP3:
http://www.oyez.org/cases/2000-2009/2007/2007_07_290/argument/

 

[LB7_Driver]

It seems to me that footnote 27 says (among other things) that "rational-basis review (scrutiny)", the lowest level of scrutiny, may NOT be used used to evaluate the 2nd amendment (and other enumerated rights).

That leaves intermediate and strict scrutiny.

Intermediate scrutiny still leaves the burden of proof on the defendant, a much more difficult and costly process in the courts.

Strict scrutiny assumes the right exists and burdens the prosecution with proving the right does not apply in that particular case.

Which one do we get?

 

[EOTechRulesAll]

Owens-

Thank you