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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. DragonRider

    DragonRider Member

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    One issue that I haven't seen mentioned anywhere, is what is going to happen if you are traveling from the range to home, or home to another home with regards to federal property. Crossing the city is going to be real interesting, especially if you get stopped. Are we going to have to go to each federal police force and get an opinion by all of them?

    Any ideas yet?

    John
     
  2. Zoogster

    Zoogster Member

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    Unless 'common use' includes those commonly employed by the soldier. You know, the "terrible implements of the soldier"?
     
  3. riverdog

    riverdog Member

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    But M-16's are very common to the individual soldier and they would be considered a common militia arm. It will be interesting to see what a future case will say now that they have both Miller protecting military arms and Heller protecting an individual right and (I think) hunting rifles, shotguns and handguns.

    That aside, the follow-on cases have already started with McDonald, et al., v. City of Chicago, et al. , which was filed in U.S. District Court in Chicago (District docket 08-3645). This one could get us to incorporation.
     
  4. Rugerlvr

    Rugerlvr Member

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    I see a flaw in one of the statements in the case already. That guy could have known his CMP gun's serial number well prior to receiving it, particularly if he asked the CMP to do it that way. It's best not to fudge like that, and could hurt the case if the defendant's attorney figures this out.
     
  5. Poper

    Poper Member

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    Zoogster,

    Please, no offense intended and none taken:
    I, too, read technical documents as well as write them. Some contracts and some specifications, so I am acutely aware that "words mean things", too. Legalese is a different breed of cat, though, and does not necessarily directly translate into Layman-ese. (For lack of a better word.)
    I would like some of the lawyers among us (like El Tejon, for one) to weigh in on some of these points and straighten me out if I am not on the right track, though.

    I still think Scalia intentionally discussed the militia, the arms thereof and the intent of the Framers to have the militia equipped equal to the needs of military service upon activation. It appears he may have kicked the door open to the posessing of arms typical of the military by "the people" (the militia) by stating: (ppg 53)
    I think this is very relevant because he goes to such great lengths to refute the ascertions of the Dissent and flat out calls Stevens wrong on multiple occaisons. Especially where posession of military type weapons is concerned.
    Stevens was trying to establish the State Militia argument as valid and was rebuked by Scalia. (above)

    I believe this is Scalia making the case that having weapons (arms) for militia duty is a "lawfull purpose". By taking Stevens to task and defining the militia, defining "arms" and alluding to a definition of "lawful purpose", I think he has certainly given us a strong argument in support of military arms posessed by the militia.
    Another slap at Stevens and another statement that the 2nd means what it says. JMHO.

    Again Scalia is telling Stevens he is all wet. Or so it appears. Also, it appears to me, Scalia is saying that Miller is irrelevant to Heller.

    I keep coming back to this statement by Scalia because he took such meticulous effort to define the militia, make the historical link of the militia being armed with like weapons as the military. His affirmation of the sawed off shotgun in Miller as being "unusual" is accurate as it would not typically be a weapon issued by the military.
    I believe Scalia went a long way toward making the connection for us that the arms of the typical soldier are arms that are reasonably expected to be posessed by the militia and are therefore protected by the 2A. I think the quote below is most illustrative of Scalia's militia connection.

    This again references the "correct" historical reading of the 2A and the direct connection of the arms of the military being necessary as the arms of the militia, too.
    I cannot see any other way Scalia could have said that the militia is expected to be equipped with modern battle rifles without using the taboo word "machinegun" but allows for the exclusion of grenades, RPG's, bazookas, and WMD's, etc. I think Scalia left it so that a logical argument can be made that because the M-16 has been denied the militia by the federal government, it has not been available to be "commonly posessed and used". Just a thought.

    All in all, a very good Decision and a very good basis for future lawsuits. Evidently NRA and other people much smarter than me seem to think so, too.

    Of course, all of my amature analysis is worth exactly what you paid for it. After all, I may be completely off my rocker and absolutely clueless, with nothing more than wishful thinking, too. :eek:

    Here's to wishing us all lots of luck in upcoming suits! :D

    Poper
    PS: Sorry this got so long! :eek:
     
    Last edited: Jun 27, 2008
  6. Zoogster

    Zoogster Member

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    It is possible, rereading the opinion it could mean many things, and leaves many options on the table.
    Sometimes you have to read things over again on a new day.

    He did have to articulate things in a way that resulted in a 5-4 vote rather than a 4-5 vote.

    I still think "shall not be infringed" means no infringement on the 'terrible implements of the soldier' possessed by the citizen.
     
  7. Jamie C.

    Jamie C. Member

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    Everybody keeps having a fit about the 5 to 4 decision... so I have a couple of questions:

    One... A win is a win, isn't it? One point or a thousand, we still got what we wanted; the 2nd identifies an individual right. No?

    Two... It's been said that because of it being a 5 to 4 vote, this could be overturned. How often does that happen? It took the court more than 70 years to get around to saying something this time... is it really likely that they'll re-visit it sometime in the near future? Or is it possible that a new justice will come along, go back over the old decisions and say "Wait a minute here, I don't agree with this. Let's chuck it out"?

    Will the case not have to be re-heard to alter it? If so, what has to happen to cause that? And are not all lower courts bound by this decision in the mean time?

    I guess what I'm saying here is that although I see where people could drop the ball in any new cases that SCOTUS hears, I'm not seeing where this particular decision is so easily forgotten or thrown out.

    Yes, it's a sad state of affairs that 4 justices don't see the 2nd as an individual right. Still, a majority of the court did.

    Anyway... what am I missing here? I just don't see the disaster that some others seem to. :confused: ( At least not from a pro-gun standpoint. The antis I can understand being in a panic. :p )



    J.C.
     
  8. Solo Flyer

    Solo Flyer member

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    You are not missing anything.
    You got it just right.
    End of story for the anti's.:D
     
  9. Zoogster

    Zoogster Member

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    I think the 5-4 vote is just a scary reminder that some people will ignore a very clear right, discussed at length by the people involved in the creation and process in preserved historical documents.
    They will alter a right even when thier job is to apply the constitution they may or may not agree with.

    Granted many issues are not specificly discussed in the constitution and the court ends up in the position of using a lot of discretion to actualy create what they feel is right or in line with the constitution.
    That some have however equated that to allowing them to change things that are clear in the constitution shows corruption in the integrity of the position.

    They swear an oath to uphold the constitution and that is thier sole job, to defend it. Thier role has never been to create the situation they feel is the best direction for the country.
    That is the job of elected officials.
     
  10. riverdog

    riverdog Member

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    from authority of supreme court precedent:
    "stare decisis" is now our friend, precedent is with us.
     
  11. Jamie C.

    Jamie C. Member

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    Sorry, riverdog, but that doesn't help me out much.

    In this case, the "experience of many judges" is pretty much all over the board... and SCOTUS it's self has never really addressed the 2nd before in a meaningful way.

    In other words, I'm still confused as to why some folks seem to think that this decision might be easy to reverse.
    ( No, I'm not trying to be intentionally dense here, I just don't get it... and I'm considered by some to be fairly bright. )

    Oh, and one other question: Has it happened very often before? A SCOTUS ruling being reversed, that is.

    Edit: just caught this part:
    ... which still confuses me, due to what I said above.


    J.C.
     
  12. bamawrx

    bamawrx Member

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    Quote:
    Originally Posted by bamawrx
    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.
    quote:
    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.

    They aren't in common use (current public) because of 922(o). Thats the very point, its a circular argument. Just ban the gun, its no longer in common use, and then the ban is constitutional. Our system, at least 5 justices worth of it, does not allow for such a stupid circular argument to stand.

    The M-16 will pass any standard of review that involves a "common use" test. The fact is that it was in common PUBLIC use during the few years of production prior to 1986 also supports my reading. Not to mention the millions of M-16's in current military inventories.

    Add in the mix the total lack of any law breaking with NFA firearms, and you avoid an overarching public safety argument to disallow the weapon.

    What I am saying, and no one else seems to agree, is that this ruling swings wide open the door to the elimination of 922(o). It did a VERY good job of laying the ground work in a very specific non-threatening way for future litigation.

    NFA is constitutional, not 922(o). I would look for a couple thousand dollar tax on new NFA guns or something like that if 922(o) got tossed. Not sure about you guys, but I'll take a $1,000 M-16 with a $2,000 tax over the 10K+ stuff we have now.
     
  13. adobewalls

    adobewalls Member

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    My reading/opinion on a couple of things:

    1. This case has been argued and is now enshrined in the lexicon of jurisprudence. Stare Decisis will apply on any subsequent case that involves the 2nd Amendment. Now does that mean that some future court won't abridge or erode the 2nd Amendment? No, that could happen - but given the foundation and the attention to detail that Scalia incorporated into explaining this decision, another subsequent court that was inclined to respect the 2nd Amendment would refer back to this case to establish that the interim court ruled in error.

    2. Scalia's discussion of "self defense" and "home" are statements directly relevent to THIS case and not the right as a whole. The meticulous nature he sets about explaining the derivation of the "Individual Right" concept provides the basis for what is not being addressed in this case, and sets up the arguements for future cases.

    3. bamawrx, I agree with you:

     
  14. bamawrx

    bamawrx Member

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    You know SCOTUS has been pretty hard on taxing rights. Just looks at speech, pole taxes, that sort of thing. It would be interesting how they would interpret the $200 NFA reg tax.

    I mention this as the Chicago case deals with the tax issue in the form of the annual reg fee.
     
  15. ProficientRifleman

    ProficientRifleman Member

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    Whaddaya mean? I agree with that completely!

    I have said all along that if the SCOTUS only upholds the appeals court decision, the door is wide open.

    The appeals court said that once a weapon is determined to be an "arm" under the second amendment, it is not open for the state to ban it!

    This win is bigger than most folks realize right now.
     
  16. Poor East Texan

    Poor East Texan Member

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    While only a .22 bolt action I WILL almost certainly bring home a new gun tomorrow!

    And now I'm not QUITE so scared that should I get able to afford one I will be able to get a SBR (scary black rifle).
     
  17. Poper

    Poper Member

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    Zoogster:
    Thank you so much for your input. Your comments have been very stimulating and have forced me to re-read much of Scalia's work here which has given me a better feel for what he was saying. It also made think more thoroughly about it, too. Thanks again.

    Yup. Me, too. There is a lot of stuff in there to digest. The legalese makes my head hurt after awhile, too.

    I agree completely. It appears Scalia gave us as much as he possibly could with a majority opinion. It gives the NRA and others lots of ammunition and means to recover much of what we have lost over the years. The more I read his opinion, the more I admire the work he accomplished here. A good man, Justice Scalia!

    I wouldn't argue with this even if I disagreed (which I don't). I think that is exactly what the Framers intended so that the People could maintain control of their government and avert Tyranny. I also believe this is what Scalia was trying to state in his opinion without actually stating it straight out, which probably would have lost his majority. A 4-5 slap down was not a good option.

    I have been thinking about it this way: Justice Scalia has bought us some time to tackle the "arms typical of the militia/soldier" with a more favorable court. We are on the way to recovering much of what has been lost since 1968 one lawsuit at a time.
    We have been 40 years getting to this point. It may take another 40 to get back to where we were. I'll never live to see it, but I thank Scalia for giving us this break and actual hope/promise for my grandchildren's future!

    Just My Two Cents.

    Poper
     
  18. Solo Flyer

    Solo Flyer member

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    Amen!A man born in Trenton,New Jersey on March 11,1936 gave us much to celebrate today.
    Thank you,Justice Scalia for securing for the most part,the God given rights of the 2A in our lifetimes.
     
  19. lacoochee

    lacoochee Member

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    They wouldn't want to open up the 1934 NFA that way because once they started modifying it, then anything in the act would be up for modification.

    Anyways, a thousand dollar plus fee would not likely be constitutional as it would in effect be the same as a ban, as it would be inherently discriminatory against the poor and minorities who are disproportionately poor. (wow, the worm does turn doesn't it?) <-- In fact, now that I think of it, that's exactly how to attack 922(o) --> machine guns ARE legal just very expensive --> They also require permission from largely white male law enforcement officers --> the paperwork is onerous and difficult to comprehend --> WOW...we may actually get this one done and easily. We don't even need to appeal this one using Heller, just the fact that Heller exists establishing the second amendment as an individual right will force the circuit courts to decide in favor of removing 922(o). We don't even need to file in a state, we can just go back to the District Court of Appeals and apply for relief from 922(o) because it is a Federal Regulation and on the grounds that it violates the Civil Rights Act, so no incorporation necessary.
     
  20. Murexway

    Murexway Member

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    Forget Mayor Fenty

    I think if I lived in the District of Columbia I'd have a handgun in my house tonight, regardless of the nitwits in the local government. Of course, I probably would have had one all along. :D
     
  21. Poor East Texan

    Poor East Texan Member

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    Purely hypothetical because I'd certainly be dead rather than live in DC but I too would likely have one or more guns if such came to be.
     
  22. Downrange

    Downrange Member

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    Well, the part about "unusual, dangerous" weapons was what I singled out as particularly "ugly" a few pages back. I DO agree Scalia set a very good precedent in acknowledging the real meaning of militia, but believe he cheaped out on some the other language, leaving our enemies wiggle room.

    My view is that, since the whole idea of the rights of a free people is to be able to form up militia comprised of all the people fit to fight for their own freedom, and, further, that such a citizen militia is explicitly expected to be able to enter combat against the forces that may be oppressing them, that it absolutely follows that they would have the exact same weaponry. Including "death rays," if and when such come to exist.

    Period, no debate about it.

    But, that's probably just me.
     
    Last edited: Jun 27, 2008
  23. Soybomb

    Soybomb Member

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    I find it unsettling that the final word in US law just barely understands some very simple words that are of great importance. I'd like to feel that our bill of rights isn't on such dangerous ground. Further, this is the first of many court cases that will likely have to reach them on the path toward restoration of the 2nd amendment. If we were able to eek out such a small margin to simply agree that the 2nd amendment is an individual right, what does that say of how hard it will be to win future cases that are more controversial.
     
  24. Groovski

    Groovski Member

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    Absolute genius! I can't see anything wrong with your logic. Individual right is an individual right. Should full auto free speech on the airwaves be limited to only those who can afford a hefty tax, e.g, rich people?

    I am one of those concerned about the 5-4 decision, not for this decision, but for the followon cases of incorporation and level of scrutiny. This case is in the books....2A is an individual right until a constitutional amendment (edit: a constitutional amendment can't take away an individual right) or a corrupt government/court takes over.

    There is still opportunity to lose future court cases. What is so frightening to me is that 4 of the justices basically bought the individual right argument, but believed the DC ban was perfectly fine. In other words, they think you have an individual right to be disarmed. A nationwide ban would be perfectly fine with them. This is sobering, when you think of the types of decisions that are to follow and how one more justice could effectively render Heller meaningless.
     
    Last edited: Jun 28, 2008
  25. Seekerrr

    Seekerrr Member

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    I joined THR either the week before or the week of the oral arguments in Heller. I had (and still have) a pretty negative view of Gura's arguments, and was outright appalled at the Solicitor General's convoluted theories. I got some flack here, but mostly I just got friendly, polite and intelligent point - counter-point takes, some of which soothed some of my concerns, and some of which didn't. So here we are and it's a done deal. I still have some concerns and disappointments......

    I guess I should be happy about this ruling, but in all honesty, the score scares the crap outta me. Four Supreme Court Justices voted to render the 2nd Amendment null and void. Our rights are dependent on how one Justice Kennedy feels when he gets outta bed on any given day. Last week he joined in the assault on separation of powers as mandated in The Constitution with the absurd ruling on unlawful enemy combatants having the "right" to access our constitutional protections during a time of war while being held outside of our shores for "crimes" committed in other than the United States. The President is no longer **The** Commander in Chief, but rather, the co-commander in chief, forced by judicial fiat to share his constitutional duties with 9 unelected tyrants. So Kennedy got it right on the 2nd Amendment....this time....but he has a helluva problem with discerning the meaning of Articles 1, 2 and 3 of The Constitution. Likewise, his simple whim could've stripped us of our God-given right to keep and bear arms, and I find that absolutely, breathtakingly chilling.

    Besides the score, there are some things even in Scalia's majority opinion that disturb me. For instance:

    It would be one thing if Scalia said something to the effect of these kinds of restrictions on the sale, carrying and access to "dangerous and unusual" weapons will be heard if/when a case with merit is brought challenging these laws, but he said instead that "no doubt" about their constitutionality, efficacy or validity should be inferred, period. He is basically upholding nearly all current gun-control laws with the only stated exception being outright bans. Scary stuff, because this part of the opinion totally departs from the only issue before the Court in Heller, which was, is/was the D.C. ban constitutional? For a "strict constructionist" who can usually be counted on to color within the lines, he has taken a lot of liberty with our liberties here.

    And....

    I got in arguments with a lot of people on some of the gun forums I frequent about how Gura's (Heller's attorney) arguments threw all kinds of things under the bus. My point was that his concessions would most certainly reappear in oral arguments in subsequent cases if Heller was decided in our favor. We didn't even have to wait for subsequent cases, and the most reliable conservative originalist on the Court says that it's alright, due to Gura's ceding the point, to allow the government to require the granting of a license before a God-given right can be freely exercised by a natural-born citizen of the United States. Mind you, this decision only applies to in-home "carrying" or possessing or using in self-defense. So Heller's relief is that he can now go to the same City Fathers who have denied his God-given right to keep and bear arms for the last 30+ years, with his hat in his hand asking them to please grant him a license to own, keep loaded and assembled, bear in self defense, a firearm in his own home. Utterly ridiculous. This decision does nothing more than give a gentle nudge towards loosening the status quo of the D.C. gun ban. In real terms, it does nothing but pay lip-service to original intent. Yes, there is victory in the unambiguous language that defines the 2nd Amendment as an "individual right," but all the caveats listed within the majority opinion leave it almost as powerless as it was before this decision. I suppose some will say it's a foundational first step. Maybe, but considering it took 232 years for SCOTUS to even acknowledge the 2nd as an individual right, I doubt any of us will still be alive when/if this foundation is ever built upon.

    Sorry, I can't go out dancing in the streets over this ruling. I am more inclined to take Thomas Jefferson's admonition, "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure."

    jail.gif [​IMG] jail.gif

    Seekerrr
     
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