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

Baba Louie · Jun 26, 2008

Thank you Alan Gura. Thank You Cato Institute.

Mr. Heller, you will live in American History.

This Case, these Justices, this time frame.

A noteworthy effort by all.

Kudos to each and all. A very simple and heartfelt thank you.

...and a left handed thank you to the District of Columbia for making it so.

gego · Jun 26, 2008

lance22 said:

It was the Gipper who appointed Judge Scalia. It would not have gone the way it did, or with this wording had Scalia not been there. So - a moment of silence in respect for Ronald Reagan, who being dead yet preserves liberty in the nation he loved.
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Reagan also appointed Kennedy.

But before we get too mushy, Ford was responsible for Stevens and H.W. Bush put up Souter. What were they thinking?

obrienja · Jun 26, 2008

Carry in National parks and forest

Doesn't this mean that open carry of handguns can not be banned in national forest and parks.

ctdonath · Jun 26, 2008

Notable quotes:

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way.

the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

“Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.

At the time of the founding, as now, to “bear” meant to “carry.” ... When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. ... it in no way connotes participation in a structured military organization.

Grotesque.

it has always been widely understood that the Second Amendment ... codified a pre-existing right.

It was clearly an individual right, having nothing whatever to do with service in a militia.

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited,

Although the militia consists of all ablebodied men, the federally organized militia may consist of a subset of them.

the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training.

It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia.

“The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” Rawle

In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly.

“The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State.

Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia.

"...But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons."

The limited discussion of the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation. There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia

[Miller's] holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”).

{Scalia beats the crap out of Stevens, by name, with alarming frequency in this opinion.}

Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

Not a word (not a word) [in Miller] about the history of the Second Amendment. This is the mighty rock upon which the dissent rests its case.

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 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.

For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens.

Even a question as basic as the scope of proscribable libel was not addressed by this Court until 1964, nearly two centuries after the founding.

For most of our history the question did not present itself.

Like most rights, the right secured by the Second Amendment is not unlimited.

nothing in our opinion should 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.

Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”

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.

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.

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.

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.

It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.

Whatever the reason, handguns are the most popu-lar weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.

since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field ... there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.

the District must permit him to register his handgun and must issue him a license to carry it in the home.

it is not the role of this Court to pronounce the Second Amendment extinct.
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davec · Jun 26, 2008

Ronald Reagan

It was the Gipper who appointed Judge Scalia. It would not have gone the way it did, or with this wording had Scalia not been there. So - a moment of silence in respect for Ronald Reagan, who being dead yet preserves liberty in the nation he loved.
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Ahhh, St. Reagan...the man who gave California gun control in the 1st place! And one of his last public acts was to support the Brady Bill before he disappeared from the public stage.

Why Reagan worshipers gloss over his barbarous role in disarming black political movements when they were expressly exercising their 2nd amendment rights in the purest form dreamed up by the Founders...well...I dunno.

Its guys like Reagan why we have a gun control fight in the 1st place.

http://query.nytimes.com/gst/fullpa...AA15750C0A967958260&sec=&spon=&pagewanted=all

With friends like that....

Fletchette · Jun 26, 2008

Thank you Alan Gura. Thank You Cato Institute.

Mr. Heller, you will live in American History.

This Case, these Justices, this time frame.

A noteworthy effort by all.

Kudos to each and all. A very simple and heartfelt thank you.

...and a left handed thank you to the District of Columbia for making it so.
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A BIG +1

shdwfx · Jun 26, 2008

Doesn't this mean that open carry of handguns can not be banned in national forest and parks.
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No. The decision nearly always references the right to self defense within the context of "in the home."

I think this was done specifically to keep from striking down any current bans against open or concealed carry. The national park carry ban still stands - for now.

Soybomb · Jun 26, 2008

Before the ink was dry on the Heller Ruling...
ISRA files suit against Chicago in Federal Court

The Illinois State Rifle Association, together with Second Amendment Foundation and several individual plaintiffs, filed suit against the City of Chicago in federal court this morning at 9:15 CDT. More information will be made available in a statement from the attorneys tomorrow.

Posted Thu Jun 26 13:30:45 CDT 2008

Duncan223 · Jun 26, 2008

kd7nqb · Jun 26, 2008

After reading the SCOTUS blog and THR all morning I have to say over all this is a good day. It could have been more perfect but all in all its a good ruling.

Brett Bellmore · Jun 26, 2008

And one of his last public acts was to support the Brady Bill before he disappeared from the public stage.
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To be fair to Reagan, at that point he was verging on vegetable status, due to the Alzheimer's.

Igloodude · Jun 26, 2008

One big element of what I take away from the Heller decision is that handgun possession ("keep") and open carry ("bear") are now "shall issue" (to the extent that permits/licenses are required in the first place) as far as the Feds are concerned. Odds are fair that soon it'll apply to states and cities too. Sure there's lots of other less-than-wonderful stuff about full-auto, CCW, and the like, but the potential of getting DC, NYC, Chicago, and San Francisco residents familiar with the concept of owning and carrying pistols is at this point enough to make me pretty happy. And better yet, the "open carry is a constitutional right" part will get a LOT of press, hopefully cutting way down on 911 calls and police harassment of OCers that happens even in pro-gun states like New Hampshire.

Brad Johnson · Jun 26, 2008

In skimming through opinion it seems that it was written less for support of the decision (which it does with aplomb) and more as a basis for future cases. The language, phraseology, and references all appear to be there for the intent and purpose of underpinning a broad spectrum of challenges. I believe he wrote his opinion and crafted it specifically to aid in further clarification of gun owners' rights in the 2A legal frenzy that is now an inevitable reality. The direct and forceful discrediting of dissenting opinions is especially revealing when viewed in this context.

The next few years promises to be interesting.

Brad

FieroCDSP · Jun 26, 2008

Soybomb, that is a freaking impressive find. Assuming that the opinion is printed on a laser printer, you do, in fact, have to get up pretty early in the morning to file that suit before the ink dries. Good luck to Illinois.

I breezed through the summary, but the whole thing is going to take me a while. Someone needs to take Scalia shootin for this one!!! Thank God that Kennedy woke up on the right side of the bed this morning, or ate his wheaties, or whatever affects his good sense the way it does.

I'm curious as to what kinds of restrictions they're going to have on their registry/licensing. At the verbal arguments in March, Heller should have said he'd have no problem with Shall-issue licensing, or not said it at all. I think Fenty is going to be up all night trying to find a way around this, and will eventually.

A big win, but lets not give up the fight yet!!!!

Orthonym · Jun 26, 2008

Woot, hoot, toot, oh frabjous day, calloo, callay!

I've been spinning continuous Sousa (starting with "Hail to the Spirit of Liberty") since I heard about this, and am right now drinking some nice Korbel Methode Champenoise wine.

Had the decision gone 7-2, or even 6-3, I might have sprung for Mumm, or something.

As SayUncle said, I reckon I'll have to get really hammered on election day, hold nose, grit teeth, check box for McCain, go home and shower and drink even moar, dreading that the Barackolypse is going to get in, anyway.

Reason for the above? The very narrowness of the 5-4 decision and the prospect of more judges like Breyer and Souter.

Zoogster · Jun 26, 2008

The impact of this decision is only big if lots of people move to apply it in various ways.
A few years from now trying to change things with the Heller opinion will be more difficult as the general consensus in how to interprete it will have been reached.

What is a weapon in 'common use'? Is that one in common use by the armed forces that fits the milita or military roles envisioned by the founders, the people in general, all civilians (like police) or some other definition?

What is " reasonable restrictions"? Do they have an end? Are they very limited narrow restrictions, or anything a location finds 'reasonable' if the population still has a way to obtain legal ownership?

Until those are forced to be defined in a way that leaves boundaries most things are still up in the air. The antis can now accomplish more in most of the nation than before, they just have to acknowledge some guns must be allowed. The process to obtain even those though can be as difficult as 'reasonable restrictions' allows with no fear of SCOTUS disapproval.

The old Fud type arguments will gain a lot of new strength, just not in the realm of hunting. You don't need a ____ to defend your home from a criminal, when a ___ will work.

But the 2nd was never about defending your home from common thugs. It was about defending the people from organized tyranny.

Seminole · Jun 26, 2008

Scalia on Miller:

This holding is not only consistent with, but positively
suggests, that the Second Amendment confers an individual
right to keep and bear arms (though only arms that
“have some reasonable relationship to the preservation or
efficiency of a well regulated militia”).
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This passage does lend support to the view that the "in common use" caveat means "in common [military] use."

But then:

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. . . . 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.”
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Coupled with:

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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seems to clearly indicate that "M-16 rifles and the like" are NOT "the sorts of
lawful weapons" that may be possessed by members of the militia.

Orthonym · Jun 26, 2008

P.s.

Oh, and aside from her wrongness in the instant case, I'll never forgive Mrs. Ginsberg for what she did to VMI.

RON in PA · Jun 26, 2008

This is one of the happiest days of my 67 years! Thank God for the five on our side and shame on the minority for their legal stupidity. The decision should have been unanimous. The major effect will be on places like DC and Chicago with current total prohibition. Most of the restrictions that we live with will stand, but the principle of the peoples' right to arms will help prevent any future total bans. I also suspect that any future total "assault" weapon ban is dead, based on some of the wording I've seen today.

Great day for the USA

Poper · Jun 26, 2008

What is a weapon in 'common use'? Is that one in common use by the armed forces that fits the milita or military roles envisioned by the founders, the people in general, all civilians (like police) or some other definition?
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From Ppg 52, 53 of the text of the decision:

"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. “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)).
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.
We conclude that nothing in our precedents forecloses
our adoption of the original understanding of the Second
Amendment.
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Sounds pretty clear to me...

Poper

hvengel · Jun 26, 2008

This was one of the more interesting sections. It deals with the level of scrutiny. Since this issue was not before the court they did not specifically rule on it. But this section does contain dicta that implies that the level of scrutiny is AT LEAST intermediate (pages 56 and 57) since it explicitly rejects rational-basis scrutiny and in fact says that these laws would have been OK if this were being judged using that standard of scrutiny. Notice also that the ruling talks about "any standard of scrutiny that we have applied to enumerated constitutional rights". As far as I know the only standard of scrutiny that has ever been applied to enumerated constitutional rights is strict scrutiny. So this strongly implies that if the question before the court requires a ruling on the standard of scrutiny that they will rule that is is strict.

"Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,27 banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,478 F. 3d, at 400, would fail constitutional muster."

"27 JUSTICE BREYER correctly notes that this law, like almost all law would pass rational-basis scrutiny. Post, at 8. But rational-basis scrutiny is a mode of analysis we have used when evaluating law under constitutional commands that are themselves prohibitions or irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 55U. 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, 152n. 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."

leadcounsel · Jun 26, 2008

It may be objected that if weapons that are most useful in military service - M16 and the like - may be banned, then the 2A right is completely detached from the prefatory clause... It may well be true that today that a militia, to be effective as militias of 18th Century, would require sophisticated arms that are highly unusual in society at large.... but the fact that modern developments have limited the degree of fit between prefatory clause and the protected right cannot change our interpretation of the right.
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bottom of page 55, top of page 56.

This seems promising.... especially in light of the fact that the ONLY reason they are unusual is because they are outlawed or fiscally impossible for most people to acquire because of the prohibitions and restrictions. Lift the restrictions and I guarantee that they become more common overnight!

Groovski · Jun 26, 2008

One big element of what I take away from the Heller decision is that handgun possession ("keep") and open carry ("bear") are now "shall issue" (to the extent that permits/licenses are required in the first place) as far as the Feds are concerned. Odds are fair that soon it'll apply to states and cities too.
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What makes you say that? Incorporation to the states is one of the next legal battles, but that case is much more murky. Some of the Bill of Rights have been incorporated to the States and some have not. It is by no means a given, especially considering this very narrow case was decided by one measely vote.

If the incorporation argument is not won, 2A means nothing to you unless you live in the right state.

SDDL-UP · Jun 26, 2008

God bless America!

And good for the Illinois State Rifle Association for taking up the torch for their state!

unspellable · Jun 26, 2008

legal issues

Following this decision the law suits will fly every which way. Some of them will be pretty obvious, as will their conclusions. One wonders why the ruling doesn't cover at leat some of those issues and save millions of dollars and yaers of court time. Of course some of the dollars thuis saved would have been spent on attorny's fees ...

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

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