To Hell with Heller

[vis-à-vis]

Did a quick search and didn't see this:

To Hell with Heller
Posted by Stephan Kinsella at July 7, 2008 09:30 PM

It's mind-boggling that some libertarians are so naive they think they can trust the Supreme Court to safeguard--sorry, to "establish," in the words of the LP Chair--our rights. They cheer on the central state that robs us daily as if it's some vindicator of our rights. But as William Grigg noted, the Court only condescended to recognize a very narrow right to armed self-defense, but then put all sorts of caveats and limits on it, stating the many "permissible" ways the state may regulate it, "thereby redefining it as a State-conferred privilege."

And it doesn't take 'em long, does it? Not even a week later, we have Mullenix v. BATF, in which the federal court relied on the Heller decision to rule against a firearms dealer who wanted to import a reproduction WW II-era German machinegun. No, the court said, Scalia made it clear that the Second Amendment is not "unlimited"; and that things like sawed-off shotguns and machineguns can of course be regulated!

See also U.S. v. Dorosan, decided on June 30, 2008, just days after Heller, holding that because Heller makes it clear that the right to bear arms is not unlimited, and may be prohibited in "sensitive places such as schools and government buildings," then "39 C.F.R. § 232.1(1)[,] which bans possession of weapons solely on postal property is not unconstitutional as applied."

So what does Heller stand for? Well, it makes it clear that gun limitations and regulations are perfectly permissible. Their only legitimate use--when the state thinks it's "reasonable"--is for self-defense against private criminals--not self-defense against public criminals--down with this whole right to revolution. So the ruling really helps entrench government power. And, of course, thanks to the perverse incorporation doctrine, the Second Amendment will no doubt be applied to the states ... by the federal government. I.e., yet more power seized by the feds. So let's see: Heller has further eroded two of the most fundamental limits on the central state: the right to revolution, and vertical separation of powers (federalism).

(thanks to Max Chiz for the links)

Aside: Tonight I was reading the latest (August) issue of Liberty, and noticed an ad by the Institute for Justice (2) on the back cover, featurings its founder, Chip Mellor, and Bob Levy, one Heller's lawyers, advertising their new book, The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. What caught my eye was the ad text:

We've challenged judicial activism where it invented new rights out of whole cloth.

We've challenged judicial passivism where it refuses to protect rights that are clearly stated in the Constitution.

And now we've written a book that calls for judicial engagement to protect our rights and limit government's power.

More "judicial engagement," after detailing "Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom"? After Heller was so disappointing? Good luck, guys.

Interesting read.

 

[romma]

Interesting read vis-a-vis... Thanks for posting. I think the ruling opens the window for more than the author is stating, but there is a point made that Scalias comments were not entirely helpful to our causes as pro-gun people.

 

[Old Fuff]

Unfortunately the Supreme Court is not made up of members that approve of the Constitution as it was written.

The vote on Heller was 5 to 4, so what we got hung on one vote. If one Justice had switched - just one! - The “militia only” position would have been confirmed, and another individual right would have been flushed. Those that bellyache about the restrictions in the decision should take a hard look at the vote, read the dissenting opinions (which if they had represented a majority would have really cooked our goose) and be very glad we got what we did.

They should also consider what could happen to the court’s make-up if Democrat liberals win control of the federal government next year following the election in November.

Be careful what you wish for because you just might get it...

 

[XD Fan]

I agree, Old Fuff. I think we barely got what we got, and it is so much better than nothing.

 

[freakshow10mm]

just days after Heller, holding that because Heller makes it clear that the right to bear arms is not unlimited, and may be prohibited in "sensitive places such as schools and government buildings," then "39 C.F.R. § 232.1(1)[,] which bans possession of weapons solely on postal property is not unconstitutional as applied."

The CFR cannot trump USC, in which sub(d) states an exception for lawful purposes. The CFR citation above holds no water.

 

[Art Eatman]

The article's view is typical of the instant gratification so desired by so many. We've had a long downhill step-by-step taking away of gun rights. We can only get them back in the same fashion. Heller is but one step--and one of the more important ones. Not only did it establish the individual right, but for the first time brought the issue of self-defense into the Second Amendment.

When you consider the efforts to get the epansion of CHL laws in our favor, and how long that has taken, well, those are just more steps back toward our view of how things oughta be.

Rather than whining about what Heller didn't do, we'd be better served to look for fights in arenas where we can win--one step at a time.

 

[Cosmoline]

The author seems to think we had the ability to strike down anti-gun laws BEFORE Heller, and that Heller has limited this power. I think he needs to review his legal history.

Well, it makes it clear that gun limitations and regulations are perfectly permissible. Their only legitimate use--when the state thinks it's "reasonable"--is for self-defense against private criminals--not self-defense against public criminals--down with this whole right to revolution.

The author is also assuming that Heller establishes only the minimal level of scrutiny. He also seems to think there was a "right to revolution" before Heller, which is complete BS. He seems to be living in a fantasy land. If he's such a strict constructionist, where is this "right to revolution" contained in the Constitution? I've never seen it. Is he suggesting a group can start killing officials because they personally dislike the policy being established?

 

[hso]

Before Heller we didn't even have a clear individual right ruling to stand on. Now the SCOUTS established a foundation for us to work from to remove the unconstitutional laws restricting gun owners. Let's not bemoan the missing silver platter.

 

[Ieyasu]

I agree. I think the author needs a reality and history check.

I also agree with you, Cosmoline, that the 2A does not include a right to revolution. However it was put there, in part, as protection against "domestic usurpations of power by rulers" (from Supreme Court Justice Joseph Story's commentary on the 2A) (Story was appointed to the Supreme Court by James Madison).

Edited to add:

Although not expressely written in the Constitution, even James Madison himself wrote that the Constitution was "subject to the Revolutionary Rights of the people in extreme cases."

 

[Sam Adams]

Although not expressely written in the Constitution, even James Madison himself wrote that the Constitution was "subject to the Revolutionary Rights of the people in extreme cases."

I'd suggest that anyone who thinks that there is no right to revolt against an oppressive, dictatorial government (i.e. one that severely violates the social contract between itself and the governed) take a gander at the Declaration of Independence.

The Declaration established our right (and duty) to revolt against such a government, wherever situated, and the Constitution set up the government that we used to replace King George & his minions. The Constitution doesn't (and cannot) overturn the Declaration, as the Declaration is more of a theoretical document than a practical one (from the legal standpoint).

 

[WayneConrad]

The writings of the period clearly establish that the 2nd is not about guns. It is about the means to defend yourself against tyranny.

When we turned back the redcoats at Lexington and Concord, we disallowed them a substantial store of powder and a couple of cannon. I think our forefathers had a broader view of the second amendment than some here.

 

[wyocarp]

be very glad we got what we did.

I can't believe I'm reading posts like this. The more I read, the less I like the Hell er ruling. It erodes more rights than it gives us in terms of using different types of guns for varied purposes. It gives the states more power in restricting our gun rights. Just like DC banning pistols that aren't revolvers. So essentially, pistols are still banned in DC and legislation is being enacted in more cities currently to ban weapons in specified areas and to ban specific weapons.

 

[scout26]

Everyone expected Heller to be Hiroshima and Nagasaki, when it was really just the Doolittle raid.

 

[Cosmoline]

It gives the states more power in restricting our gun rights.

First of all it didn't address the question of what states can do. Further, do you understand that prior to Heller neither the states nor the feds had ANY Second Amendment restrictions on what gun laws they could pass? There were NO restrictions. None. Zero. Zilch. It was as if the Second did not exist. Now there are at least SOME as to the feds, and a good indication these will extend to the states. Some is better than none in my book.

Just like DC banning pistols that aren't revolvers.

An act of HIGHLY questionable merit after Heller, and one which will be challenged presently. Do you understand how court challenges work?

The writings of the period clearly establish that the 2nd is not about guns. It is about the means to defend yourself against tyranny.

This is far too broad a reading. The Second says what it says, and what it talks about are ARMS. Meaning small arms for individual use. It does not give a right to form armed rebel militias and start killing officials. I guess some folks on the fringe of the movement thought it did, but they were wrong.

To the extent there is a power to revolt, it does not come from the Second. It comes from the Constitution as a whole, which is a compact between the states and the federal government. If the feds truly degenerate into raw tyranny and no longer have any respect for the Constitution, then the states would arguably have the power to rebel. Of course some of them tried it once and that didn't work out too well ;-) But I suppose if the President refused to leave office and ordered martial law to protect his position, the states would be within their rights to form a counter-force and retake the union from his hands. That power would lie with the several states, however, NOT with individuals.

 

[rainbowbob]

...be very glad we got what we did...

Glad, yes...satisfied, no. Although Heller represents a significant milestone - it's still galling that we have been reduced to being "glad" about having our constitutional right affirmed as merely a privilege granted by the government and subject to whatever restrictions they deem reasonable.

As others have noted...We've got a long way to go in an uphill battle. Now is definately NOT the time to settle for what we've been "given" and leave it at that.

 

[Bartholomew Roberts]

It took a long time to lose our rights and it will take a while to regain them - especially since part of our strategy relies on appointing strict constructionist judges who will not overstep their authority (i.e. we will be more successful with "as applied" challenges than facial challenges such as the two post-Heller decisions mentioned).

It doesn't matter that you used to be a triathelete if you sit on the couch and eat pork rinds for 20 years. No matter how bad you want to, you cannot go out and run a triatholon the day after you decide to get back in shape.

Personally, I thought the limiting language in the opinion was well-written. On the one hand, it is written so that it will easily dispose of immediate challenges to NFA, 922(o) or the typical pro-se Second Amendment challenge. On the other hand, there are some holes in the argument that are suprising from a Justice as distinguished as Scalia. Some of those holes could probably be widened if future Justice appointments go our way (and some of the key elements to do that are already being laid down now).

 

[BullpupBen]

I too cant believe some of the posts I'm reading. The second amendment has nothing to do with hunting or sporting, and very little to do even with self defense.

The second amendment is about the Right to Revolution. Anyone who does not believe a democracy needs a right to revolution needs to take a class in Western Civilization. The basis of any legitimate form of government is the social contract wherein the people agree to be ruled by a government in exchange for protection of their life, liberty, and property.

When a government fails to adequately protect the life, liberty, or property of its citizens and democratic means (those gaurenteed by the rest of the bill of rights and constitution) have failed to correct this, it is time for a revolution. Our founding fathers understood this and made multiple references to these ideas in the declaration of independence, claiming that they were correct in attempting to destroy the established government because their liberty and property were not adequately protected by the King of England and Parliament.

The second amendment is about the right to revolution and nothing else. Like the rest of the bill of rights its purpose is to limit the power of the central government and stop us from sliding into tyranny.
We need Habeas Corpus so the government can not just haul away those it feels undermine its authority, we need freedom of speech so those who speak out against the governments wrongdoings can not be silenced, and we need the right to bear arms so that if all else fails we can take our country back from a tyrannical government.


NOW, all that being said I think Heller was still a win. Although the judges didn't really recognize the right to revolution outright, it was at least mentioned a few times and it is of course very hard for a government to give up power itself (which is why our constant activism is necessary). Acknowledgement of the 2A as an individual right is so much better than the gray area we were in before.
Heller was not the be all and end all of the fight for our rights, but it was a critical leap forward that sets the stage for further correction.

"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure."
-Thomas Jefferson

 

[mbt2001]

I agree that we have been sliding down hill since 1934 at ever increasing speed, we "bottomed out" in the 90's and started going up hill again in 2001, in no small part because of the attacks of 9/11 and the inability of government to "protect us" on a large scale.

It will take a solid march, plodding and boring and redundant, every day for years for us to get back to where we always should have been. C'est la vie.

 

[esq_stu]

The SCOTUS opinion does not affirm any particular time, place, manner exceptions to the right. Any of them may be challenged. The quotes from the Mulinex and Dorosan cases are not relevant holdings because 1) they are not precedential (they are not appellate cases); and 2) the extent of the limitations could not possibly have been raised and fully briefed so soon after Heller.

But leave it to a biased journalist to twist it into something it's not.

I can think of some very colorful metaphors in reference to the author, but will decline out of respect for THR's rules.

 

[csmkersh]

Those that have read Scalia's opinion know that the only real winners are the citizens of Washington, D.C. - maybe. The reason I say maybe, Fenty and Company are already plotting ways around the decision. What are the denizens of DC supposed to have gained? The right to keep a handgun for self defense in their homes. The right to keep a rifle or shotgun assembled and without trigger locks.

But for the rest of us, we're SOL. Class III/Title 2 firearms maybe heavily regulated or banned altogether as the Hughes Amendment still stands. We're going to lose even more ground after the November elections regardless who sits in the White House. Obama is openly anti-gun and McCain hasn't met a Democrat whose butt he isn't willing to kiss.

​

 

[Yellowfin]

An act of HIGHLY questionable merit after Heller, and one which will be challenged presently. Do you understand how court challenges work?

Yes. Slowly, after the fact, usually years after the damage has been done, with no punishment to those who brought about the grievance, and no deterrence for other despots to try the same nonsense again just in a different form. And only if the court feels like hearing it and only if they can't come up with some nonsense, no matter how absurd, in contrary to the fact. If they can say it'll help the condors or hypothetical little Johnny, it'll stand.

At least that's what being in CA has taught me it's like.

 

[Cosmoline]

The second amendment is about the right to revolution and nothing else.

Where are you seeing the word "revolution" in the Second?

 

[Emmanuel Goldstein]

The lesson I see here for the 2nd amendment community is to immediately act on Heller, which thank goodness they're doing. The other side is going to try to build momentum using Heller in a misleading way to restrict our rights. If they build enough court cases early affirming that the politicans can grant us how much of our rights they feel like letting us exercise, then future challenges will be very difficult. They did this with Miller. They repeated the "collective rights" lie so much future cases were thrown out based on courts misreading Miller and holding that individuals having no standing. Incorporation is the next biggest step and should be pursued immediately. I know they are trying for it in Chicago and SF but I think they should also try NYC. The problem with the Chicago case as I see it is that it may potentially establish the precedent that government has the power to require citizens get politicians’ permission in order to exercise their 2nd amendment rights. My understanding is that the current Chicago case is about having to register firearms periodically with the city and requiring them to register prior to possession. It does not directly challenge the constitutionality of the city requiring registration. What happens if they win...does that mean citizens have to then at least register their firearms once or they face jail time? What I would like to see be the case for winning incorporation would be a law abiding citizen challenging their only crime of not registering their firearm with the city and subsequently sentenced to jail time. How can a citizen be sentenced to jail for merely exercising their constitutional right especially in their own home? Am I mistaken? Does Gura represent a citizen like this in the Chicago case? I didn't see it on Chicagoguncase.com. There has to be such a law abiding citizen in Chicago who has been charged with failing to register their firearm. If not they should try NYC.

 

[ctdonath]

The SCOTUS opinion does not affirm any particular time, place, manner exceptions to the right.

Quite. What many forget: Heller was ultimately about whether DC could deny a permit for home use. Insofar as the decision addresses issues outside that narrow focus, it does so by simply acknowledging that there IS a broad right, that right is not unlimited, and there is much to debate later.

 

[Wes Janson]

Before Heller there was no ruling regarding the status of individual vs collective right, but neither was there a definitive answer on the question of what the Second Amendment actually protects. Now we have that answer, and it seems fundamentally incompatible with the concept of opposing tyranny.

"In common use" is just as permanent of an edict as is the claim that the Second is an individual right. The residents of the District of Columbia may now have their right restored to own a revolver, but at what cost to the future? The precedent that has been set can cut both ways, and I don't see any sign that the political situation will change in our favor in the forseeable future.