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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. Groovski

    Groovski Member

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    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.

    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:

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

    Scalia does say this:

    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.
     
    Last edited: Jun 30, 2008
  2. brickeyee

    brickeyee Member

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    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.
     
  3. Prof. A. Wickwire

    Prof. A. Wickwire Member

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    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.

    Things are looking better and better.

    Sincerely,

    Prof. A. Wickwire
     
  4. ctdonath

    ctdonath Member

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    Footnote #27:
     
  5. Frohickey

    Frohickey Member

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    You guys are forgetting Ted Kennedy and Frank Lautenberg.
     
  6. Groovski

    Groovski Member

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    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:

     
    Last edited: Jun 30, 2008
  7. ctdonath

    ctdonath Member

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    Well, apparently it's news to four of the judges sitting on the Supreme Court right now.
     
  8. usmarine0352_2005

    usmarine0352_2005 Member

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    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?
     
  9. riverdog

    riverdog Member

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    If by true you mean is it in Scalia's opinion, then yes, that's verbatim from footnote 27 of the majority opinion.
     
  10. usmarine0352_2005

    usmarine0352_2005 Member

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    So it's as good as it seems?


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

    HuntAndFish Member

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    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? :)
     
  12. ConstitutionCowboy

    ConstitutionCowboy member

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    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
     
  13. ctdonath

    ctdonath Member

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

    Groovski Member

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

    Fundamental rights:

    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.
     
  15. brigadier

    brigadier Member

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    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.
     
  16. EOTechRulesAll

    EOTechRulesAll member

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    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
     
  17. Owens

    Owens Member

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  18. LB7_Driver

    LB7_Driver Member

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    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?
     
  19. EOTechRulesAll

    EOTechRulesAll member

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    Owens-

    Thank you


    :)
     
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