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

[Big45]

Zoogster you are missing the point. Most people don't care about this issue one way or the other. Most people. A majority. You've got zealots on both sides, and the majority in the middle who don't give a crap. The fence sitters. Same way I am with abortion. I could not care less. So now these people, the majority, wake up today and read in the paper and see on the tv that the court says its an individual right. Well tomorrow they still couldn't care less but now they understand it as AN INDIVIDUAL RIGHT. Same way I say hey if a girl wants an abortion that's her right (as per Roe), then I go back to not caring. That is huge. How is that a loss?

 

[mnw42]

Can you restrict military arms?

Here is the text that directly refers to modern marshal arms:

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.

He glanced at the MG ban; the decision did make mention of "arms in common usage" and that the people who make the body of the militia are to supply their own arms. It this reasonable to assume that the AR15 can not be banned since it would be acceptable, appropriate, and expected for use in militia service.

I do think that this will be the end of any ban on any general class of firearms. I think that the decision will end the prohibitions that exist in NY, NJ, and else were on carry since they are applied unevenly. The numerous mentions to self defense lead me to think that it force the right to carry and "shall issue" on some of the more socialist states that disallow it or apply it to only specific classes of people.

 

[Selfdfenz]

ilbob

+10

Some it seems would only be content with decisions in areas Heller vs. was never about.

Having read the whole thread I'm surprised & disappointed at the level of negativity being directed at this decision which is soo positive for gun owners.

The comment S.T. Agnew used to characterize certain members of the press many years ago comes to mind. And it fits so well.

Best all,

S-

 

[Gunnerpalace]

Boo-ya! :d

 

[Groovski]

For those who wanted 100% of everything they would like out of the 2A, they can spin this decision to be bad.

Heller is a hero who fought for his rights when even the NRA was against the case because they didn't think it could be won with the current makeup of the court. Eventually they came around because Heller fought on despite them. Everyone that fought with Heller are heroes too.

I just don't see how any decision that says that the constitution means what it says can ever be bad.

Four out of nine of the people appointed to safeguard the constitution disagree with you.

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

We'll win them all, assuming it's always 5-4 or better, and people like Heller, Gura et al fight for what is theirs to begin with.

My take is that 5-4 is a warning that future Hellers need all the help they can get at the voting booth, because this one was way closer than it should have been.

 

[Soybomb]

I wonder what will constitute a class of gun. Are SBRs an entire class, how about accessories like suppressors? Will I be getting my SBR in IL in a few years?

 

[Zoogster]

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.

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.

Actualy this is exactly the point of my first post in this thread, and why I consider it a loss.
Because larger magazines have in fact been restricted for some time now, and larger mags are not presently owned by most civilians, magazines larger than that are not in common use in that state.
What about the nation since it is a national law?
Well many states have capacity limits, in fact if you consider where most of the population resides and in what states, many are in places with AW(assault weapon) or capacity restrictions.
So arguably allowing larger magazines could be said to conflict with in 'common use'.

The way of course to fix most of that is to have police (civilians) held to the same standard as the rest of us. Suddenly 20-30 round magazines would definately be in 'common use', because it would have to be to allow them continued possession and use of them.

That is the problem with the "in common use" phrase in this decision.
It means if a restriction is put in place that removes something from common use, even gradualy, then it will eventualy not be in common use and at that point can be legaly banned altogether.
You could create something like the NFA to reduce how many of something is possessed or purchased, then ban it altogether down the road once it is no longer 'in common use'.

The combination of 'reasonable restrictions' and 'in common use' is one of the worst combinations the 2nd has ever seen.

Will I be getting my SBR in IL in a few years?

Are they in common use? No? Well then not protected sorry.

 

[starboard]

I am making a contribution to NRA today to help with the legal challenges (and, hopefully, victories) that lie ahead.

 

[General Geoff]

You could create something like the NFA to reduce how many of something is possessed or purchased, then ban it altogether down the road once it is no longer 'in common use'.

I disagree. I think future litigation will hold that usage trends effected by previous government restriction or regulation will not be considered for qualification of the "common usage" indicator.

In other words, if something was in common usage before a ban was implemented, then it would be reasonable to assume that they'd still be in common usage today, were it not for the ban, and thus the ban is unconstitutional.

And this is all moot if future litigation holds that modern military small arms in use by the U.S. military, are indeed in common use for the purposes of this ruling.

 

[Sebastian the Ibis]

I think one of the next fights has to be over the breadth of "in common use." If it is nationwide, high capacity magazines, semi-auto pistols, Ar-15's etc. will be in common use and anything later invented can become "in common use" if people in the free states buy enough.

 

[dakuda]

I am glad I do not live in Chicago. I am close, but not in the city. Daley is pissed.

http://www.chicagotribune.com/news/local/chi-supreme-court-gun-ban,0,3522044.story

 

[mnw42]

The question of common usage comes down to use of the gun. ARs military arm and therefor the common usage could be inferred as military. The same could be applied to AKs, M1A/m14, FN HP, Beretta 92/M9, Glock 17, etc as one would expect military configurations. A Beretta with a suppressor is another matter.

The door was pushed open but it will take another case to un-muddy the waters.

 

[Zoogster]

In other words, if something was in common usage before a ban was implemented, then it would be reasonable to assume that they'd still be in common usage today, were it not for the ban, and thus the ban is unconstitutional.

That is why initialy it will not be a ban. It will be a qualification, tax/fee, and other hurdles that reduce how many go through the effort to own it ('reasonable restriction'). After years of such things in place certain really difficult to purchase items with the most 'reasonable restrictions' will no longer be in 'common use'.
It essentialy allows what you saw in CA, a gradual growing definition of what is an 'assault weapon'. Only in this case instead of an 'assault weapon' it is things not in 'common use'.

It allows for a divide and conquer effect of what is in 'common use'.

It also does not allow the possession of arms to grow with technology, because new technology is obviously not in common use. So only technology that the government likes can be allowed to be used, and others can be kept from ever getting into 'common use'.
Obviously something invented tommorrow is not in common use, and they can keep it from ever getting that way legaly backed by a SCOTUS ruling now.

 

[General Geoff]

It also does not allow the possession of arms to grow with technology, because new technology is obviously not in common use.

That's not the way the legal system works. A ban does not occur unless and until something is common enough for a ban to have an effect. Do you think the 1934 NFA would have even been proposed, let alone passed, if machine guns were as rare as double rifles?

 

[gego]

The more I think about it, the more I think the majority of 5 just gave lip service to the obvious intent of the 2nd. They interpreted it more as a government granted privilege which can be altered at political whim and future judicial interpretation. And these 5 are the product of appointment of supposed conservative presidents? Am I supposed to be thankful?

We are only going to have the rights that those in power are willing to let us keep. There is a tug of war between those in power who want power and those who want freedom and use the idea of rights as a means to limit power. Power historically wins and rights keep getting whittled down. Those cheering this "victory" in Heller I think are ignoring the trend and how hollow and small this decision really is.

 

[everallm]

Quote:
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.
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.



Who said anything about smug.......?

I'm going to be asking a simple question with the intent of escalating this up the food chain until I find some fool who will is going to say "We're important and you are not, you have no rights to this".

I will politely ask the nice person for this in writing and THEN I'll be smug when I use it to feed any challenges.

Or I could simply wait like a nice little person and hope the nice politicians won't continue to erode our constitutional rights

I know what I'm prepared to do, what about you ?

 

[ctdonath]

Some it seems would only be content with decisions in areas Heller vs. was never about.

Um ... ya see ... the Heller verdict addressed those areas. If they _had_ left those areas alone, that would have been fine because they could have been addressed later ... but SCOTUS _did_ address them, and now things are more complicated/difficult because of it.

 

[Hikingman]

To those Senators who typically vote along 'Democrat' party lines:

Control yourself.

This change will provide another way for good people to 'legally' protect themselves in case of break-ins or crazies coming in their window!

 

[Zoogster]

Um ... ya see ... the Heller verdict addressed those areas. If they _had_ left those areas alone, that would have been fine because they could have been addressed later ... but SCOTUS _did_ address them, and now things are more complicated/difficult because of it.

Exactly, if it was mentioned in the majority opinion it is now addressed by the highest court in the nation whether it had anything to do with the case or not. That means it will have a major impact on law, whether new law, or reinforcing existing laws.
Scalia made it about any issue he mentioned in his decision, even if it was unrelated until today when he mentioned it.

 

[buzz_knox]

That's not the way the legal system works. A ban does not occur unless and until something is common enough for a ban to have an effect. Do you think the 1934 NFA would have even been proposed, let alone passed, if machine guns were as rare as double rifles?

There is a ban on firearms which can pass through metal detectors undiscovered, even though the only examples of such items were restricted to American and Soviet intelligence agencies.

 

[buzz_knox]

Exactly, if it was mentioned in the majority opinion it is now addressed by the highest court in the nation whether it had anything to do with the case or not. That means it will have a major impact on law, whether new law, or reinforcing existing laws.

If it was relevant to the case, yes. However, the Second Amendment has been mentioned as an example of an individual right in previous cases, but that didn't settle the issue because it wasn't required by the decision and thus was dicta. Dicta can be used in an argument, but it doesn't have the same effect as a decision on the merits.

 

[cuchulainn]

Um ... ya see ... the Heller verdict addressed those areas. If they _had_ left those areas alone, that would have been fine because they could have been addressed later ... but SCOTUS _did_ address them, and now things are more complicated/difficult because of it.

Or maybe the majority was signaling its willingness (desire?) to look at those issues -- that's certainly how Scalia's bit about incorporation and Cruickshank seemed. He was all but saying "Please, please let us look at incorporation." That and issues like "reasonable restriction" and "common usage" DO need to be addressed and sorted out.

 

[Marvin01950]

if it is not enforced arbitrarily and capriciously

Does that mean the end of may issue?

Any thoughts?

 

[ProficientRifleman]

my opinion only

The Court did the right thing.

They held the right to be individual in nature.
They held that a prohibition on the most useful tool for self defense in the home to be unconstitutional.
They left alone the National Firearms Act, as it was not at issue in this case. In doing so he left it open to future challenges under this ruling.
They left alone the issue of "prior restraint", which is what a licensing scheme is, because it was not at issue in this case. It would be open to future challenges under this ruling.
They held that Mr. Heller's license should be issued NOW unless he is criminally or psychologically disqualified. That means that all those folks in New York City who have been denied their Second Amendment rights under the Sullivan Act and the way it is imposed, should be able to launch successful challenges to their denials.

This ruling further means that Cities, like Chicago, which have bans on handguns will be successfully challenged and citizens thereof will be able to exercise self defense with their own arms.

The term "arm" is now defined to include handguns. These "arms" may NOT now be banned!!! Go back and read the Court of Appeals decision.

The NFA will be challenged very soon. Complete bans are unconstitutional!! It is settled constitutional law that a statute passed as a revenue measure, which collects no revenue due to its unreasonable burdensome nature, is not a revenue measure at all, but a ban. Complete bans are unconstitutional!

Let us all not hold our breath. Let us all now work diligently to build upon the success we enjoyed today.

 

[agtman]

My take:

There'll be as many opinions regarding Heller's meaning - beyond just that the Second Amendment protects an individual right - as there'll be spinning about what it'll all mean down the road. Cable news should be fun tonight.

That said, I did like this language:

"We find [the words of the Second Amendment] guarantee the individual right to possess and carry weapons in case of confrontation."

I read that to mean there's also a protected right to "carry" a weapon on your person beyond your doorstep and outside the home. It wouldn't make a whole lot of sense to say that the SA protects an individual's right to carry a handgun in a shoulder holster only inside his house.

Problem is: Scalia later on seems to qualify the above-quoted statement by saying there's no Second Amendment protection for individuals carrying weapons "for any sort of confontation" - referring, by analogy, to the First Amendment and saying, in effect, that the First doesn't protect just "any sort of speech."

I guess I'll work through the opinion again.

Still, as I read it:

(1) the SA's "RTK&BA" is an individual right and it can be asserted by individuals in the same way as other legal challenges against government/police actions that infringe their 1st, 4th , 5th, 6th or 8th Amendment rights; and

(2) prohibitionist-style laws that ban the keeping of handguns in the home for self-defense violate (1).