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

Discussion in 'Legal' started by Bartholomew Roberts, Jun 26, 2008.

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  1. Owens

    Owens Member

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    Just my opinion on all this but...

    The case before the court was based on a specific claim, therefore the judgment addresses the specifics of the case at the time it's brought forth.

    Although it was a 5/4 with 2 dissenting opinions (and those 4 are a scary report on where society is at), it is interesting to note that all 9 recognized it an INDIVIDUAL right. That should forever cement that argument.

    What evil lurks? New (repackaged?) and devious ways to apply 'reasonable restrictions'.
     
  2. Pigspitter

    Pigspitter Member

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    Hot Dang, I love America.
     
  3. Deanimator

    Deanimator Member

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    Don't bet on it. The affected partie(s) will get a TRO against the city. This is SETTLED law. Of course I'd love to see Fenty cited for contempt.
     
  4. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

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    The four dissenters did not recognize it as an individual right. They called it a "right that can be enforced by individuals" to disguise the big weakness in the collective rights interpretation - if Miller was a collective rights ruling, then why no inquiry into whether Miller was part of a militia?

    So they talk about "individual rights to use a weapon for a military purpose" to sugarcoat the fact that they are selling a collective rights argument.
     
  5. Guntalk

    Guntalk Member

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    Talk to Alan Gura

    Alan Gura, the lead attorney on the Heller case (and the man who argued the case before the Supreme Court) will be the guest on the first hour of Gun Talk Radio this Sunday. He is scheduled to be on at 2:00pm Eastern.

    Second hour will be with Alan Gottlieb, founder of the Second Amendment Foundation, which is a party to a number of lawsuits being filed as followup to the Heller case.

    www.guntalk.com to find a station near you, or a station which streams, or for the podcasts. Also on XM satellite radio (channel 166, 8:00pm Eastern).

    You can call and ask Gura your questions, or suggest questions here.
     
  6. everallm

    everallm Member

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    We should all thank our deity of local choice for 2 people without whom we would be nowhere.

    Fenty and Daley......

    Seriously, without Fenty's pigheadedness in forcing the Heller case to the SC we would not have had the reiterated proof on the individual right along with lots of wriggle room to challenge other restrictions.

    Without Daley we would not be able to launch such a reallllllllly good chance to get 2A incorporated.

    When I go to bed tonight I will pray that they stay the people they are just a leeeeetle bit longer.

    I particularly want to see either

    Fenty try and weasel out of his order from the SC to grant licencing or to hedge the licencing to make it impractical to exercise.

    Daley refusing to accept any judgements.

    Even Ginsberg et-al, whilst in disagreement with the finding, have even less tolerance of people who try and take the piss out of the SC.
     
  7. Owens

    Owens Member

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    I kind of see that as saying the same thing.

    Granted, they (the 4) are probably trying to save a little face over their twisted view (agenda) of what the 2A wording means.
     
  8. riverdog

    riverdog Member

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    We won big with Heller, in spite of it being a 5-4 ruling the 2nd Amendment is now officially an individual right. Fortunately Heller wasn't about machine guns. Scalia's verbiage may have opened the door, but when there is a challenge to the '86 law, we will lose Kennedy and it will be at least 5-4 against machine guns. That's the way it is, machine guns are gone, fini, get over it.

    Fortunately, I think a new AWB restricting semi-autos would be much tougher to justify. A good argument could be made that semi-autos in general and AR-15's specifically are common. 1911's, Sig's, Beretta's and Glocks are common. High capacity magazines such as 30 round AR-16/M-16 mags are common as are high capacity mags for those Beretta's and Glocks.
     
  9. gvass

    gvass Member

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    :)

    Congratulation USA!!!



    Hapiness is a warm (hand)gun!

    nhgaly7yGfV.jpg

    nhgalvAnuYd.jpg
     
  10. Dbl0Kevin

    Dbl0Kevin Member

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    You are so blinded by your narrow focusing in on machineguns that you are not understanding judicial law. The Miller case was certainly relevant to Heller in that it was the ONLY standing precedence any SCOTUS had left regarding the 2nd Amendment.

    You keep talking about the "positives" in that Miller brought up a POSSIBILITY that machineguns MIGHT have fared better in the case. What you are completely missing is that under Miller normal, everyday, civilian firearms were completely UNPROTECTED. That is what Scalia needed to get around in this case and I believe he did it brilliantly.

    All you talking about "well they said they might have let machineguns be legal!!!" completely forgets that they said a sawed off shotgun is NOT protected. If the most common firearm in America, a shotgun, with a simple adjustment of barrel length is not protected under Miller do you REALLY want those "positives" to be left alone? :banghead:

    Gotta look at the big picture man!
     
  11. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

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    The problem is that they say that and then use legalese to make it clear they are still discussing a collective right only.

    It would be like me saying "Would you like to eat a brick of sawdust?" and you say "No, thank you." I then say "Would you like a Hershey bar then?" and offer you the same brick of sawdust.

    From a legal perspective, no court is likely to regard the dissenting opinion as supportive of an individual right to keep and bear arms.
     
  12. kevindsingleton

    kevindsingleton Member

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    I can't help but wonder if the dissenters knew they were in the minority, and took the opportunity to merely voice their very political opinions, knowing that the decision would be affirmed, and their votes were not required.

    From reading the dissents, it doesn't appear that any very firmly objected to the individual right position, but simply wanted qualifications.

    If that's the case, it just goes to show how political the Supreme Court has become. How can they justly rule on the law, when they don't even abide by their sworn oaths?

    Still, it's the best system the universe has ever seen, and a win is a win. Let's go make something better of Scalia's brilliant words.
     
  13. Seminole

    Seminole Member

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    I'm afraid not. One of the restrictions on the 2nd Ammendment that Scalia explicitly mentioned as allowable pertains to weapons in "sensitive areas." Who is to say that all of New Orleans after Katrina was not such a "sensitive area." One of the problems with the exceptions allowed by Scalia is that they are by nature so expansive.
     
  14. Owens

    Owens Member

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    Bartholomew,

    You are probably right on this. It's just my cursory review of it so far. I have yet to read the opinion in full, and have only skimmed over it rather quickly.

    I completely agree that there seems to be a few doors left open by Scalia. Almost to the point of an invitation?

    Hopefully today, I can spend a bit more time and get in a good thorough read!
     
  15. 308win

    308win Member

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    Yesterday was a good day but being the optimist that I am, 5-4 is nothing better than a tie. One vacancy among the majority filled with a justice holding a dissenting view and the next decision can flip the other way.

    This was the beginning of the journey not the end - let us all be vigilant, diligent, and work to get a court that will be 6-3 or better on the next case.

    But, good for our side.
     
  16. Poper

    Poper Member

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    Zoogster:
    Please understand I am not arguing with you , but I am instead trying to get my head wrapped around the decision and also trying to get a better grasp of exactly what Scalia has done for us. Earlier you asked:
    Well, I believe the only reason he even addressed it is because Justice Stevens attempted to use Miller to support his dissenting opinion. From Scalia's footnote on ppg. 52 of the Opinion:
    IMHO, it was Justice Stevens that raised the issue of Miller as a strong support for D.C. but Scalia would have none of it, so he discredited Steven's reasoning by demonstrating Miller had no bearing on Heller.

    I believe Scalia has demonstrated that all military small arms that are usual and common to a modern day soldier in the regular military are arms that are protected under the 2nd Amendment but he could not include that in this decision. He did the next best thing: He completely discredited Stevens and the other dissenting Justices' reliance on Miller by demonstrating their flawed reasoning while standing firmly on historical precedent and sound legal principle. In essence, Justice Scalia gave us the most solid foundation possible upon which to build future challenges. IMHO, everything is up for grabs and it is good for RTKBA proponents. Just look at how Heller has thrown the left into a wild tizzy!

    JMTC

    Poper
     
  17. .cheese.

    .cheese. Member

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    This thread is approaching 30,000 views very quickly.

    I bet it's a record.
     
  18. ctdonath

    ctdonath Member

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    I'm just not seeing it, try as I might.
    ...along with other emphasis that only "common" arms are protected, which leads to a notable point in dissent:
    Please tell me I'm missing something blatantly obvious and favorable.
     
  19. Poper

    Poper Member

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    ctdonath:
    Please read PPGs 54 through 57 of the opinion includung the footnotes. I believe Scalia makes the point that arms common to the the military used by the soldier are the definition of "common arms". Though I may be mistaken, it appeared to me he took great pains to equate the militia and the appropriateness of their arms with the necessity of the (well regulated - I.E. trained) militia having weapons appropriate to their service in event of their being called upon to serve.
    <Without saying military small arms are protected (because this was not what Heller was about) he through the door wide open for a challenge on that basis. JMHO>

    I think Heller will be VERY good for 2A in the future.

    But then, I ain't no lawyer, neither, and I have been accused of being an optimist. The glass IS half full after all!


    Poper
     
    Last edited: Jun 27, 2008
  20. Seminole

    Seminole Member

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    The decision does say that, but qualifies it thusly:

    So that the 2nd is understood to protect "weapons. . .typically possessed by law-abiding citizens for lawful purposes" that are (in your words) appropriate to their service in event of their being called upon to serve.

    This part of the decision is very confusing and takes very careful reading. But in any close reading, one needs to consider carefully the effect of what comes first on what comes later. The quote above is crucial to understanding the following:

    The first sentence alone might be taken to mean that civilian members of the militia should be allowed "weapons that are most useful in military service—M-16 rifles and the like." Notice the following sentence, however, in which the "but as we have said," refers to "weapons. . .typically possessed by law-abiding citizens for lawful purposes":
    The next part of the paragraph,
    has a similar two-part structure in which the argument that the militia needs weapons that are common in military contexts but not "in society at large" is negated by the final sentence. This negation is indicated by the word "But, The "interpretation of the right" is that it covers only those weapons that are "typically possessed by law-abiding citizens for lawful purposes," regardless of the fact that, unlike in the constitutional era, the weapons possessed by the military are now very far removed in kind from those "typically possessed by law-abiding citizens for lawful purposes."

    The upshot of what Scalia said here is that in the Constitutional period citizen-militia members had the right to "weapons typically possessed by law-abiding citizens for lawful purposes" that just happened to be pretty close to what the army used. The fact that the military now uses "sophisticated arms that are highly unusual in society at large" does not mean that we have a right to the same kind of weapons they have: we are still limited to "weapons typically possessed by law-abiding citizens for lawful purposes."

    While I am in a profession that requires close reading of texts of the sort that this one calls for, I am not a lawyer either. I would be most grateful if an attorney could confirm my reading, or for that matter, show me why I am wrong.
     
  21. Pendragon

    Pendragon Member

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    I can't believe I read the whole thing up to here.


    I see this as a major positive and the other side is doing what they can to down play it and obstruct.

    Barely a day after the decision, people are still trying to read and digest - there is so much that it will take weeks, months and years before either side can fully leverage the decision.

    These decisions don't happen in a vacuum and more cases are now being launched.

    In my opinion, the Anti crowd is latching on to cold comfort in reading that certain restrictions are ok and they have not fully grasped how completely broken they are right now.
     
  22. Rugerlvr

    Rugerlvr Member

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    It might take 10 years or more for another 2A case to reach the Supremes. If it's anything like the last time gap, it won't be in our lifetimes. Who knows?

    I'm banking that a lot of lower courts are going to be very kind to 2A cases based on the precedent set in Heller, and the Supreme Court will not need or want to grant Certiorari to more 2A cases for a very long time.
     
  23. bamawrx

    bamawrx Member

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    I wouldn't worry too much about the "common use" test too much. Handguns weren't in common use in DC because they were banned. To read the test improperly is to allow for a circular argument to stand.

    Ban machine guns, they become no longer in common use, and therefore its legal to ban machine guns. The future case if it happens involving 922(o) will work that out.

    I actually think Scalia was leaving the door open for future bans of radical unusual weapons. Just imagine some kind of a microwave flesh melting ray or some such thing. Both dangerous AND unusual.

    Gunpowder burning firearms are dangerous AND very common worldwide.
     
  24. Seminole

    Seminole Member

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    Handguns weren't in common use in DC, but they certainly are in the rest of the U.S. M-16s aren't in common use among civilians anywhere in the U.S.
     
  25. Pendragon

    Pendragon Member

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    Why are you [you in the general sense] assuming that geographic proximity is a requisite element in establishing "common use"?

    Common is common. Can you really imagine a court saying that since handguns are common in Texas, but not DC, the law can be applied unequally...

    woot: post #600
     
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