Warning

 

Close

Confirm Action

Are you sure you wish to do this?

Confirm Cancel
PSA
Member Login

Site Notices
Arrow Left Previous Page
Page / 14
Posted: 6/26/2008 12:22:28 PM EDT
[Last Edit: 6/26/2008 12:30:52 PM EDT by badfish274]
Link to decision.

Mods, please don't lock!

The majority opinion, written by Scalia, and joined by Roberts, Alito, Kennedy and Thomas.  

Quoted parts are, of course, verbatim from the opinion (page breaks and some cites deleted).

Facts: It is illegal to carry an unregistered firearm, and the registration of handguns is prohibited.  Apart from that, no person may carry a handgun without a license, and the Chief of Police may issue permits with a 1 year duration.  All firearms must also be kept locked up and disassembled unless they are located in a place of business or being used for lawful recreational purposes.  Dick Heller applied to register a handgun, but was refused.  He filed suit seeking to enjoin the city based on Second Amendment grounds.  The district court threw out the case, but the appellate court reversed and remanded, ordering the trial court to issue summary judgment.


It held that the Second Amendment protects
an individual right to possess firearms and that the city’s
total ban on handguns, as well as its requirement that
firearms in the home be kept nonfunctional even when
necessary for self-defense, violated that right.


First, the good stuff.  The meaning of the Second Amendment.

Scalia notes the two sides in the case: D.C. and the dissenters believe that the 2nd Amendment only applies to carrying weapons connected to service in a militia.  Heller, (and a majority of the court), believe that the 2nd amendment protects and individual’s right to keep and bear arms unconnected to militia service, including self defense in the home.  Scalia stands firmly behind the briefs from linguists, Heller, and Eugene Volokh in determining what the clauses of the amendment mean.  The first, prefatory clause expresses a reason for the second clause, but not the reason for the second, operative clause.


The Amendment could be rephrased,
“Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep
and bear Arms shall not be infringed.”


While this style of writing is unique to the 2nd Amendment in the Constitution, he says, it is not unique in other founding-era constitutions, especially when it came to keeping and bearing arms.  Scalia takes the opportunity in a footnote to discount a claim made by Justice Stevens: that the court is not giving effect to all the words of the 2nd Amendment.  Nonsense – because the prefatory clause has no “operative effect,” there is nothing to give effect to.  Similar to the preamble, or ‘whereas’ clauses in federal legislation.  This isn’t the last time he beats the tar out of the dissent, as we’ll see.

He tackles the operative clause first.

”Right of the People”: Because the 1st Amendment’s Assembly-and-Petition clause and the 4th Amendment’s Search-and-Seizure clause both recognize an individual right using the exact same phrase, the 2nd Amendment must be read the same way.  Here’s another shot at the dissenters:


JUSTICE STEVENS is of course correct, post, at 10, that the right to
assemble cannot be exercised alone, but it is still an individual right,
and not one conditioned upon membership in some defined “assembly,”
as he contends the right to bear arms is conditioned upon membership
in a defined militia. And JUSTICE STEVENS is dead wrong to think that
the right to petition is “primarily collective in nature.” Ibid. See
McDonald v. Smith, 472 U. S. 479, 482–484 (1985) (describing historical
origins of right to petition).


Folks, I don’t know where Justice Stevens comes up with this stuff.

While the Constitution refers to “the people” in collective instances, such as the preamble and the 10th Amendment, none of these refer to rights – only to retaining powers.  Thus, they are not controlling on the 2nd Amendment.

”Keep and bear arms”: This is the substance of the right.  For all you tinfoilers complaining about how the government can still ban ancillary items that aren’t actual firearms, how does this sound:


Before addressing the verbs “keep” and “bear,” we interpret
their object: “Arms.” The 18th-century meaning is no
different from the meaning today. The 1773 edition of
Samuel Johnson’s dictionary defined “arms” as “weapons
of offence, or armour of defence.”
Timothy Cunningham’s important 1771 legal dictionary
defined “arms” as “any thing that a man wears for his
defence, or takes into his hands, or useth in wrath to cast
at or strike another.”


Sounds to me like body armor is even covered.

Furthermore, the idea that the 2nd Amendment only protects that which was in use at the time of the Amendment’s adoption is pure hogwash.


We do not interpret
constitutional rights that way. Just as the First
Amendment protects modern forms of communications,
e.g., Reno v. American Civil Liberties Union, 521 U. S. 844,
849 (1997), and the Fourth Amendment applies to modern
forms of search, e.g., Kyllo v. United States, 533 U. S. 27,
35–36 (2001), 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.


In determining what “keep arms” means, Scalia quickly points out that it means simply to “have arms.”  He looks at the works of people like Blackstone and finds that historically laws have been written to regulate arms on an individual basis.


Petitioners point to militia
laws of the founding period that required militia members
to “keep” arms in connection with militia service, and they
conclude from this that the phrase “keep Arms” has a
militia-related connotation. See Brief for Petitioners 16–
17 (citing laws of Delaware, New Jersey, and Virginia).
This is rather like saying that, since there are many statutes
that authorize aggrieved employees to “file complaints”
with federal agencies, the phrase “file complaints”
has an employment-related connotation. “Keep arms” was
simply a common way of referring to possessing arms, for
militiamen and everyone else.


“Bear” means “to carry,” he points out, and when “arms” is added onto it, the meaning becomes “to carry arms for confrontation.”  Sounds a lot like carry laws to me.  Justice Scalia points to Justice Ginsburg’s dissent in Muscarello, which should be rather ironic given her vote in this case:


In Muscarello v. United States, 524 U. S.
125 (1998), in the course of analyzing the meaning of
“carries a firearm” in a federal criminal statute, JUSTICE
GINSBURG wrote that “urely a most familiar meaning is,
as the Constitution’s Second Amendment . . . indicate:
‘wear, bear, or carry . . . upon the person or in the clothing
or in a pocket, for the purpose . . . of being armed and
ready for offensive or defensive action in a case of conflict
with another person.’ ”


Yes, this sounds a lot like carry laws.

Justice Scalia also points to nine state constitutions which enshrined, in various language, the right of people “to bear arms in defense of themselves and the state.”  Thus, he concludes, both the modern and founding-era usage of the term “bear arms” applies to the individuals’ right to bear arms for self-defense.

I’m going to quote the entire next paragraph as an example of why I adore Justice Scalia’s writing style.


In any event, the meaning of “bear arms” that petitioners
and JUSTICE STEVENS propose is not even the (sometimes)
idiomatic meaning. Rather, they manufacture a
hybrid definition, whereby “bear arms” connotes the
actual carrying of arms (and therefore is not really an
idiom) but only in the service of an organized militia. No
dictionary has ever adopted that definition, and we have
been apprised of no source that indicates that it carried
that meaning at the time of the founding. But it is easy
to see why petitioners and the dissent are driven to the
hybrid definition. Giving “bear Arms” its idiomatic meaning
would cause the protected right to consist of the right
to be a soldier or to wage war—an absurdity that no
commentator has ever endorsed. See L. Levy, Origins of
the Bill of Rights 135 (1999). Worse still, the phrase
“keep and bear Arms” would be incoherent. The word
“Arms” would have two different meanings at once:
“weapons” (as the object of “keep”) and (as the object of
“bear”) one-half of an idiom. It would be rather like saying
“He filled and kicked the bucket” to mean “He filled
the bucket and died.” Grotesque.


No one else is that confrontational, and this is actually pretty mild for him.

Justice Scalia basically says that every instance that D.C. points to where “bear arms” indicates some sort of collective right is clearly used in the military sense – i.e., “bear arms against x.”  “Keep and bear arms,” on its own, has no military connotation.

Justice Scalia gets snippy again.


JUSTICE STEVENS points to a study by amici supposedly
showing that the phrase “bear arms” was most frequently
used in the military context. See post, at 12–13, n. 9;
Linguists’ Brief 24. Of course, as we have said, the fact
that the phrase was commonly used in a particular context
does not show that it is limited to that context, and, in any
event, we have given many sources where the phrase was
used in nonmilitary contexts. Moreover, the study’s collection
appears to include (who knows how many times) the
idiomatic phrase “bear arms against,” which is irrelevant.
The amici also dismiss examples such as “ ‘bear arms . . .
for the purpose of killing game’ ” because those uses are
“expressly qualified.” Linguists’ Brief 24. (JUSTICE
STEVENS uses the same excuse for dismissing the state
constitutional provisions analogous to the Second Amendment
that identify private-use purposes for which the
individual right can be asserted. See post, at 12.) That
analysis is faulty. A purposive qualifying phrase that
contradicts the word or phrase it modifies is unknown this
side of the looking glass (except, apparently, in some
courses on Linguistics). If “bear arms” means, as we
think, simply the carrying of arms, a modifier can limit
the purpose of the carriage (“for the purpose of selfdefense”
or “to make war against the King”). But if “bear
arms” means, as the petitioners and the dissent think, the
carrying of arms only for military purposes, one simply
cannot add “for the purpose of killing game.” The right “to
carry arms in the militia for the purpose of killing game”
is worthy of the mad hatter. Thus, these purposive qualifying
phrases positively establish that “to bear arms” is
not limited to military use.


Lastly, Justice Stevens contends that “keep and bear arms” is a term of art, because it is referred to as a singular right, not “rights.”  This doesn’t even pass the laugh test, in Scalia’s analysis.  The first amendment refers to the “right” of the people to assemble and petition the government for grievances.  Stevens has nothing to stand on, it seems.

Meaning of the operative clause: Like Justice Kennedy did in Boumediene, Justice Scalia takes us down a long path of historical precedent and rationale for the 2nd Amendment.  I won’t quote it at length here, because most of this is fairly common knowledge, but it begins on page 19 of the opinion for anyone interested.  He concludes with this, which should be interesting further on in the opinion:


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, just as the First Amendment’s
right of free speech was not.
Thus, we do not read the
Second Amendment to protect the right of citizens to carry
arms for any sort of confrontation, just as we do not read
the First Amendment to protect the right of citizens to
speak for any purpose.


Justice Scalia then turns to the prefatory clause – “A well regulated militia.”

First, the militia clauses do not give the power to create a militia, as DC argued.  The militia clauses of the constitution give Congress the ability “to call forth the militia,” and not to create it.  The militia pre-dates the Constitution, for it is merely all able-bodied men who are capable of bearing arms.  Justice Scalia then does exactly what I was hoping he would do:


Finally, the adjective “well-regulated” implies nothing
more than the imposition of proper discipline and training.
See Johnson 1619 (“Regulate”: “To adjust by rule or
method”); Rawle 121–122; cf. Va. Declaration of Rights
§13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well regulated
militia, composed of the body of the people,
trained to arms”).


Ah yes, victory.  “Well regulated” means disciplined and trained, not federally regulated.

The dissenters both in this case and in the lower court believe that “the security of a free state” meant States in the sense of Florida, Alaksa, etc.  Justice Scalia corrects them.  “The security of a free state” means “the security of a free polity” – a free nation, etc.  Not individual American states.

He also throws a bone to the keyboard revolutionaries amongst us.


Third, when the able-bodied men of
a nation are trained in arms and organized, they are
better able to resist tyranny.


All this being said, Justice Scalia wraps up his analysis of the textual interpretation of the 2nd Amendment.


We reach the question, then: Does the preface fit with
an operative clause that creates an individual right to
keep and bear arms? It fits perfectly, once one knows the
history that the founding generation knew and that we
have described above. That history showed that the way
tyrants had eliminated a militia consisting of all the ablebodied
men was not by banning the militia but simply by
taking away the people’s arms, enabling a select militia or
standing army to suppress political opponents. This is
what had occurred in England that prompted codification
of the right to have arms in the English Bill of Rights.


Justice Scalia then goes on a long discussion of the interpretation of the 2nd Amendment after its passage and throughout the 19th century.  While interesting and correct, it isn’t entirely important for my goal here – which is to get what this case means out to you folks.  Suffice to say, there is a mountain of historical evidence and precedent, as Justice Scalia points out, that shows that the 2nd Amendment protects an individual right to keep and bear arms, unconnected to any sort of militia membership.

I’ll quote a good passage, however:


2 Tucker’s Blackstone
143. In Note D, entitled, “View of the Constitution of the
United States,” Tucker elaborated on the Second Amendment:
“This may be considered as the true palladium of
liberty . . . . The right to self-defence is the first law of
nature: in most governments it has been the study of
rulers to confine the right within the narrowest limits
possible. Wherever standing armies are kept up, and the
right of the people to keep and bear arms is, under any
colour or pretext whatsoever, prohibited, liberty, if not
already annihilated, is on the brink of destruction.”


I swear, Justice Scalia must be an arfcommer.

Justice Scalia then moves on to a discussion of precedent, and arrives at an arfcom standard – U.S. v. Miller.  He starts off by noting Justice Stevens’ declaration of what the case stands for:


JUSTICE STEVENS places overwhelming reliance upon
this Court’s decision in United States v. Miller, 307 U. S.
174 (1939). “[H]undreds of judges,” we are told, “have
relied on the view of the amendment we endorsed there,”
post, at 2, and “[e]ven if the textual and historical arguments
on both side of the issue were evenly balanced,
respect for the well-settled views of all of our predecessors
on this Court, and for the rule of law itself . . . would
prevent most jurists from endorsing such a dramatic
upheaval in the law,” post, at 4. And what is, according to
JUSTICE STEVENS, the holding of Miller that demands
such obeisance? That the Second Amendment “protects
the right to keep and bear arms for certain military purposes,
but that it does not curtail the legislature’s power to
regulate the nonmilitary use and ownership of weapons.”


Which he shoots down.  This is going to be important, because Justice Scalia does not overrule or disparage Miller.


Nothing so clearly demonstrates the weakness of
JUSTICE STEVENS’ case. Miller did not hold that and
cannot possibly be read to have held that. The judgment
in the case upheld against a Second Amendment challenge
two men’s federal convictions for transporting an unregistered
short-barreled shotgun in interstate commerce, in
violation of the National Firearms Act, 48 Stat. 1236. It is
entirely clear that the Court’s basis for saying that the
Second Amendment did not apply was not that the defendants
were “bear[ing] arms” not “for . . . military purposes”
but for “nonmilitary use,” post, at 2. Rather, it was that
the type of weapon at issue was not eligible for Second
Amendment protection:



JUSTICE STEVENS can
say again and again that Miller did “not turn on the difference
between muskets and sawed-off shotguns, it
turned, rather, on the basic difference between the military
and nonmilitary use and possession of guns,” post, at
42–43, but the words of the opinion prove otherwise. The
most JUSTICE STEVENS can plausibly claim for Miller is
that it declined to decide the nature of the Second
Amendment right, despite the Solicitor General’s argument
(made in the alternative) that the right was collective,
see Brief for United States, O. T. 1938, No. 696,
pp. 4–5. Miller stands only for the proposition that the
Second Amendment right, whatever its nature, extends
only to certain types of weapons.


Let that last sentence sink in.  Miller is still good law.


As for the text of the Court’s opinion
itself, that discusses none of the history of the Second
Amendment. It assumes from the prologue that the
Amendment was designed to preserve the militia, 307
U. S., at 178 (which we do not dispute), and then reviews
some historical materials dealing with the nature of the
militia, and in particular with the nature of the arms their
members were expected to possess, id., at 178–182. Not a
word (not a word) about the history of the Second Amendment.
This is the mighty rock upon which the dissent
rests its case.


Precedent?  What Precedent?  Miller didn’t have a damn thing to say about whether or not the 2nd Amendment protects an individual right.

Next, Justice Scalia announces what Miller means.


We may as well consider at this point (for we will have
to consider eventually) what types of weapons Miller
permits. 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.” 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.

That accords with the historical understanding of the
scope of the right.


That doesn’t sound good, if Miller is still good law.


Although we do not undertake an
exhaustive historical analysis today of the full scope of the
Second Amendment, 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.


I don’t see anything about concealed carry, NFA, 86 FOPA, 68 GCA, import ban, sporting clause, etc in that passage.  But wait:


We also recognize another important limitation on the
right to keep and carry arms. Miller said, as we have
explained, that the sorts of weapons protected were those
“in common use at the time.” 307 U. S., at 179. We think
that limitation is fairly supported by the historical tradition
of prohibiting the carrying of “dangerous and unusual
weapons.”


Next comes the part of the decision that I just can’t seem to wrap my head around, and is what I suspect we’ll be discussing the most here:


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.


Honestly, I don’t get it.  That last sentence is so ambiguous it isn’t even funny – this is highly uncharacteristic for Justice Scalia.

“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.”  What the hell is he saying?  Modern developments in terms of “modern-day bombers and tanks” or is it in terms of the “M-16 rifles and the like” that we’d like to possess?  And what is the interpretation of the right in this instance?

If anyone can explain this slowly and with small words, I’d love to hear it.

Lastly, he strikes down D.C.’s laws.


As the quotations earlier in this opinion demonstrate,
the inherent right of self-defense has been central to the
Second Amendment right. The handgun ban amounts to a
prohibition of an entire class of “arms” that is overwhelmingly
chosen by American society for that lawful purpose.
The prohibition extends, moreover, to the home, where the
need for defense of self, family, and property is most acute.
Under any of the standards of scrutiny that we have applied
to enumerated constitutional rights, banning from
the home “the most preferred firearm in the nation to
‘keep’ and use for protection of one’s home and family,”
would fail constitutional muster.


He mentions the standard of review there, and also in a footnote:


JUSTICE BREYER correctly notes that this law, like almost all laws,
would pass rational-basis scrutiny.  But rational-basis
scrutiny is a mode of analysis we have used when evaluating laws
under constitutional commands that are themselves prohibitions on
irrational laws.
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 irra-
tional laws, and would have no effect.


Read that again.  And again.  That is the best part of this entire opinion, in my opinion.

Justice Scalia then seems to indicate, albeit rather obtusely, that courts should take into account why a person might choose a particular arm – regardless of what the legislature says.


There are many reasons that a
citizen may prefer a handgun for home defense: It is easier
to store in a location that is readily accessible in an emergency;
it cannot easily be redirected or wrestled away by
an attacker; it is easier to use for those without the upperbody
strength to lift and aim a long gun; it can be pointed
at a burglar with one hand while the other hand dials the
police.


The trigger lock provision is also unconstitutional.


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.


Licensing was not an issue, because Heller did not make it an issue.


We therefore assume that petitioners’ issuance of a license
will satisfy respondent’s prayer for relief and do not address
the licensing requirement.


But Justice Scalia did seem to say that license requirements would be constitutional, provided they are not arbitrary.  However, this case does not specifically hold one way or the other on that question.

Justice Scalia finishes his opinion by finishing off Justice Breyers’.


He proposes, explicitly at least, none of the traditionally
expressed levels (strict scrutiny, intermediate scrutiny,
rational basis), but rather a judge-empowering “interest-balancing
inquiry” that “asks whether the statute burdens
a protected interest in a way or to an extent that is out of
proportion to the statute’s salutary effects upon other
important governmental interests.” Post, at 10. After an
exhaustive discussion of the arguments for and against
gun control, JUSTICE BREYER arrives at his interest-balanced
answer: because handgun violence is a problem,
because the law is limited to an urban area, and because
there were somewhat similar restrictions in the founding
period (a false proposition that we have already discussed),
the interest-balancing inquiry results in the
constitutionality of the handgun ban. QED.
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. Constitutional rights are enshrined with
the scope they were understood to have when the people
adopted them, whether or not future legislatures or (yes)
even future judges think that scope too broad. We would
not apply an “interest-balancing” approach to the prohibition
of a peaceful neo-Nazi march through Skokie.
The First Amendment contains the
freedom-of-speech guarantee that the people ratified,
which included exceptions for obscenity, libel, and disclosure
of state secrets, but not for the expression of extremely
unpopular and wrong-headed views. The Second
Amendment is no different. Like the First, it is the very
product of an interest-balancing by the people—which
JUSTICE BREYER would now conduct for them anew. And
whatever else it leaves to future evaluation, it surely
elevates above all other interests the right of law-abiding,
responsible citizens to use arms in defense of hearth and
home.


I’m going to get on my soap box now.  Folks, do you see why it is so important that we appoint justices to the Supreme Court?  This is what they would have us go through – another balancing test where the interests have already been balanced in the amendment.  They would say what they think the law should be, and not what it is.  Think about that long and hard before you step into a voting booth this fall.

Can you see why I can’t stand Justice Breyer?  “Yeah, the amendment and all the historical evidence mean one thing – but I think we should do another, because I have an opinion, damnit!”

Holding:

In sum, we hold that the District’s ban on handgun
possession in the home violates the Second Amendment,
as does its prohibition against rendering any lawful firearm
in the home operable for the purpose of immediate
self-defense. Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the District
must permit him to register his handgun and must
issue him a license to carry it in the home.


He leaves us with a nice paragraph explaining things, which I’ve seen before at the end of controversial decisions.  I specifically remember Gura bringing this “off the table” stuff up during oral arguments.


We are aware of the problem of handgun violence in this
country, and we take seriously the concerns raised by the
many amici who believe that prohibition of handgun
ownership is a solution. The Constitution leaves the
District of Columbia a variety of tools for combating that
problem, including some measures regulating handguns,
see supra, at 54–55, and n. 26. But the enshrinement of
constitutional rights necessarily takes certain policy
choices off the table. These include the absolute prohibition
of handguns held and used for self-defense in the
home. Undoubtedly some think that the Second Amendment
is outmoded in a society where our standing army is
the pride of our Nation, where well-trained police forces
provide personal security, and where gun violence is a
serious problem. That is perhaps debatable, but what is
not debatable is that it is not the role of this Court to
pronounce the Second Amendment extinct.


My take:
Alan Gura and his team got everything they wanted:
- Individual right.
- Handguns are legitimate tools for self defense, and this constitutionally protected.
- D.C.’s laws are struck down.
- We’ll talk about the implications of that machine gun paragraph, because I honestly don’t get it.

I’d say he did a masterful job, and we owe him a great deal of gratitude and respect.  I’d strongly encourage everyone to join the NRA if you haven’t already, and I’d urge you even more to throw a $20 bill to places like the Cato Institute and the Institute for Justice, as they fight alongside us.

Let me know if you want the dissents posted as well, although I think the points Scalia refutes make their positions clear (and silly).

Oh, and feel free to email this link to friends and family.  Get the word out, and all.

Good day to be a gun owner.
Link Posted: 6/26/2008 12:25:52 PM EDT
Thanks for the cliff notes and interpretations it made it easier to read instead of sorting through it all. I'm glad they ruled in our favor but I think it should have been better than 5-4 overturn.
Link Posted: 6/26/2008 12:26:31 PM EDT
[Last Edit: 6/26/2008 12:34:18 PM EDT by Sylvan]
I just got to the footnote 27 page 56 on rational basis-scrutiny.

Obviously that is right out.

WOOT!

Strict Scrutiny is not mentioned (as I doubt Kennedy would go with it).  So we are left with a clouded possibility between strict and and intermediate.

The level of scrutiny is tragically left unaddressed.  

ETA got to page 62

The level of scrutiny is deliberatly left unaddressed, though the weakest is pointedly excluded.

Breyer that communistic piece of shit wants to make up a new one.
WTF is interest-balancing inquiry.?
Scalia nails it, "a judge empowering" level that evicerates the law and leaves it to the whim of our black robbed masters.

Fucking cocksucker.
Link Posted: 6/26/2008 12:27:52 PM EDT
Awesome, great job!
Link Posted: 6/26/2008 12:27:59 PM EDT
Well done.
Link Posted: 6/26/2008 12:28:00 PM EDT
Awesome work!
Link Posted: 6/26/2008 12:28:18 PM EDT
[Last Edit: 6/26/2008 12:45:46 PM EDT by FordGuy]
Yep, we are one SC justice away from LOSING this right!
Link Posted: 6/26/2008 12:28:21 PM EDT
thanks legalese hurts my brain
Link Posted: 6/26/2008 12:28:52 PM EDT
This needs a tack.  Thanks badfish!
Link Posted: 6/26/2008 12:29:16 PM EDT
[Last Edit: 6/26/2008 12:29:36 PM EDT by badfish274]

Originally Posted By Sylvan:
I just got to the footnote 27 page 56 on rational basis-scrutiny.

Obviously that is right out.

WOOT!

Strict Scrutiny is not mentioned (as I doubt Kennedy would go with it).  So we are left with a clouded possibility between strict and and intermediate.

The level of scrutiny is tragically left unaddressed.  


I'm not sure how binding footnotes are... but footnote 27 is great news no matter how you slice it.  Anything above rational basis is a win for us, IMO.
Link Posted: 6/26/2008 12:29:25 PM EDT
Thanks for the Cliffs Notes!

Does someone have a DIRECT link to the opinion in .pdf? I'm on dial up and need to right click/ save any .pdfs I want to read, otherwise my browser takes a dump...

Thanks.
Link Posted: 6/26/2008 12:29:40 PM EDT
Very nicely done!

Good job.

HH
Link Posted: 6/26/2008 12:29:59 PM EDT

Originally Posted By --bullseye--:
Thanks for the Cliffs Notes!

Does someone have a DIRECT link to the opinion in .pdf? I'm on dial up and need to right click/ save any .pdfs I want to read, otherwise my browser takes a dump...

Thanks.


scaryblackguns has a tack at the top of GD.  I'll add a link here.
Link Posted: 6/26/2008 12:30:07 PM EDT

Originally Posted By Sylvan:
I just got to the footnote 27 page 56 on rational basis-scrutiny.

Obviously that is right out.

WOOT!

Strict Scrutiny is not mentioned (as I doubt Kennedy would go with it).  So we are left with a clouded possibility between strict and and intermediate.

The level of scrutiny is tragically left unaddressed.  


They didn't address it, which I'm not surprised at, but when Scalia starts putting the 2nd right up there with the 1st, the only level of scrutiny that would be appropriate is strict.
Link Posted: 6/26/2008 12:31:09 PM EDT
So, does this, or will it in the future, invalidate the PRK's ASW ban?

I read part of the brief so far and I thought I saw a glimmer of hope.
Link Posted: 6/26/2008 12:31:25 PM EDT
satagcribed
Link Posted: 6/26/2008 12:31:43 PM EDT
Thanks!  
Link Posted: 6/26/2008 12:32:03 PM EDT
Tag for when I have time!
Link Posted: 6/26/2008 12:32:03 PM EDT
Alan Gura used DC's lawyers as a chew toy
Link Posted: 6/26/2008 12:32:28 PM EDT
[Last Edit: 6/26/2008 12:33:23 PM EDT by pdg45acp]
Looks like the DC mayor doesn't care what scotus says.. He still won't allow (BANS) semi-auto handguns in DC...

Check out his butt hurt response to the ruling..

www.youtube.com/watch?v=Vj2L8OhR4ak
Link Posted: 6/26/2008 12:34:39 PM EDT
[Last Edit: 6/26/2008 12:35:19 PM EDT by PAEBR332]
Just to emphasize the best passage (as you pointed out), found in a footnote no less:


Obviously, the same test [rational-basis - PAEBR332] 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.  


That is HUGE.
Link Posted: 6/26/2008 12:35:37 PM EDT
what i get from this fish is yea ,we CAN have military style weapons

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.



Honestly, I don’t get it. That last sentence is so ambiguous it isn’t even funny – this is highly uncharacteristic for Justice Scalia
Link Posted: 6/26/2008 12:35:41 PM EDT

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.


He is attempting to explain the relevance of the prefatory clause in such a way as to leave the door open for a continued ban on an undefined class of military weapons.  It breaks down something like this from my reading:

(1) The rights protects keeping and bearing arms "of common use."
(2) One of the original purposes of the amendment, as seen in the prefatory clause, is that the citizens would bring their own arms "of common use" and form a militia with them.
(3) The fact that military technology has changed to such a degree that arms "of common use" would potentially be of no effect in modern war does not change the right to keep arms "of common use," nor does it extend the right to "uncommon" arms, whatever those may be, even if such weapons are needed to be an effective soldier in modern war.  
Link Posted: 6/26/2008 12:36:06 PM EDT
Thanks for taking the time to write that up, badfish.  
Link Posted: 6/26/2008 12:37:28 PM EDT

Originally Posted By eswanson:

Originally Posted By Sylvan:
I just got to the footnote 27 page 56 on rational basis-scrutiny.

Obviously that is right out.

WOOT!

Strict Scrutiny is not mentioned (as I doubt Kennedy would go with it).  So we are left with a clouded possibility between strict and and intermediate.

The level of scrutiny is tragically left unaddressed.  


They didn't address it, which I'm not surprised at, but when Scalia starts putting the 2nd right up there with the 1st, the only level of scrutiny that would be appropriate is strict.

The First Amendment contains the
freedom-of-speech guarantee that the people ratified,
which included exceptions for obscenity, libel, and disclosure
of state secrets, but not for the expression of extremely
unpopular and wrong-headed views. The Second
Amendment is no different


fucking rock on Scalia!!!
Link Posted: 6/26/2008 12:37:55 PM EDT

Originally Posted By pdg45acp:
Looks like the DC mayor doesn't care what scotus says.. He still won't allow (BANS) semi-auto handguns in DC...

Check out his butt hurt response to the ruling..

www.youtube.com/watch?v=Vj2L8OhR4ak


You've got to be kidding me.  Does he not realize that if this goes before a court again, he will flat-out lose if he tries to make a distinction between single-action, double-action, and semi-automatic handguns?

Wait... that would be good precedent for us.  Bring it on!
Link Posted: 6/26/2008 12:38:44 PM EDT

Originally Posted By PAEBR332:
Just to emphasize the best passage (as you pointed out), found in a footnote no less:


Obviously, the same test [rational-basis - PAEBR332] 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.  


That is HUGE.


How binding is a footnote like that?
Link Posted: 6/26/2008 12:38:54 PM EDT
Thanks brother!
Link Posted: 6/26/2008 12:38:56 PM EDT
wow thank you
Link Posted: 6/26/2008 12:39:07 PM EDT
[Last Edit: 6/26/2008 12:40:05 PM EDT by Cold]
Link Posted: 6/26/2008 12:39:54 PM EDT

Originally Posted By happycynic:
(3) The fact that military technology has changed to such a degree that arms "of common use" would potentially be of no effect in modern war does not change the right to keep arms "of common use," nor does it extend the right to "uncommon" arms, whatever those may be, even if such weapons are needed to be an effective soldier in modern war.  


Say that slower and with smaller words and sentences.  I really can't grasp this.
Link Posted: 6/26/2008 12:41:09 PM EDT

Originally Posted By badfish274:

Originally Posted By happycynic:
(3) The fact that military technology has changed to such a degree that arms "of common use" would potentially be of no effect in modern war does not change the right to keep arms "of common use," nor does it extend the right to "uncommon" arms, whatever those may be, even if such weapons are needed to be an effective soldier in modern war.  


Say that slower and with smaller words and sentences.  I really can't grasp this.


That was like a Mike Tyson uppercut.
Link Posted: 6/26/2008 12:41:21 PM EDT

Originally Posted By badfish274:

Originally Posted By pdg45acp:
Looks like the DC mayor doesn't care what scotus says.. He still won't allow (BANS) semi-auto handguns in DC...

Check out his butt hurt response to the ruling..

www.youtube.com/watch?v=Vj2L8OhR4ak


You've got to be kidding me.  Does he not realize that if this goes before a court again, he will flat-out lose if he tries to make a distinction between single-action, double-action, and semi-automatic handguns?

Wait... that would be good precedent for us.  Bring it on!


Looks like we are going to have to fight him for every inch..

I jail an option for him and his cronys?
Link Posted: 6/26/2008 12:41:37 PM EDT

Originally Posted By happycynic:

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.


He is attempting to explain the relevance of the prefatory clause in such a way as to leave the door open for a continued ban on an undefined class of military weapons.  It breaks down something like this from my reading:

(1) The rights protects keeping and bearing arms "of common use."
(2) One of the original purposes of the amendment, as seen in the prefatory clause, is that the citizens would bring their own arms "of common use" and form a militia with them.
(3) The fact that military technology has changed to such a degree that arms "of common use" would potentially be of no effect in modern war does not change the right to keep arms "of common use," nor does it extend the right to "uncommon" arms, whatever those may be, even if such weapons are needed to be an effective soldier in modern war.  


Your reading does not fit well with this passage from page 55 (my emphasis):


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.


Per Scalia since ONE of the purposes for the Second was to have an effective militia, and in modern times an effective militia may require "sophisticated arms that are highly unusual in society at large." he seems to be broadly hinting that BANS on things like M16s are also out of bound. The 86 registration ban is eerily similar to the handgun ban used by DC. If one falls, the other should as well
Link Posted: 6/26/2008 12:41:46 PM EDT
This should be tacked

M-16s here we come
Link Posted: 6/26/2008 12:41:48 PM EDT

It would be rather like saying
“He filled and kicked the bucket” to mean “He filled
the bucket and died.” Grotesque.


No one else is that confrontational, and this is actually pretty mild for him.



Fucking awesome.
Link Posted: 6/26/2008 12:41:53 PM EDT

Originally Posted By happycynic:
He is attempting to explain the relevance of the prefatory clause in such a way as to leave the door open for a continued ban on an undefined class of military weapons.  It breaks down something like this from my reading:

(1) The rights protects keeping and bearing arms "of common use."
(2) One of the original purposes of the amendment, as seen in the prefatory clause, is that the citizens would bring their own arms "of common use" and form a militia with them.
(3) The fact that military technology has changed to such a degree that arms "of common use" would potentially be of no effect in modern war does not change the right to keep arms "of common use," nor does it extend the right to "uncommon" arms, whatever those may be, even if such weapons are needed to be an effective soldier in modern war.  


My take is that he was trying to hint at a response to "Does this mean the RKBA allows you to use nukes?".

Let's face it: anything that we would be interested in, from handguns right up to Ma-Deuces, are in COMMON USE, either in the military or in their civilian versions. What ISN'T in common use is things like AT rockets and such, which even in the military are generally issued only to select troops, rather than across the board.

It almost sounds as if he's saying that the NFA and the MGB are both full of shit.
Link Posted: 6/26/2008 12:41:53 PM EDT

Originally Posted By badfish274:

Originally Posted By PAEBR332:
Just to emphasize the best passage (as you pointed out), found in a footnote no less:


Obviously, the same test [rational-basis - PAEBR332] 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.  


That is HUGE.


How binding is a footnote like that?

He effectively says the same thing during the main body.
Fairly effective and can be referenced for future cases
Link Posted: 6/26/2008 12:42:57 PM EDT
Thanks much for the cliff notes, seems to sum it up nicely.
Link Posted: 6/26/2008 12:43:01 PM EDT
I was interested in the fact that Scalia specifically referred to holding a gun on a burglar.  A burglar is only guilty of a property crime, not a crime against your person.  He didn't say killer, rapist, violent intruder.

I assume that this language is not used thoughtlessly by a Supreme Court Justice who has had so much time to render and review an opinion.

Is he also sending a message regarding scope of the use of lethal force?
Link Posted: 6/26/2008 12:43:36 PM EDT

Originally Posted By Cold:
I stopped at the majority


Same here. Scalia did such a wonderful jub gutting the little fuck that I didn't feel the need to completely waste my workday reading Steven's bilge.
Link Posted: 6/26/2008 12:43:50 PM EDT

Originally Posted By badfish274:

Originally Posted By PAEBR332:
Just to emphasize the best passage (as you pointed out), found in a footnote no less:


Obviously, the same test [rational-basis - PAEBR332] 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.  


That is HUGE.


How binding is a footnote like that?


Everything in a majority opinion which bears on the core finding is considered binding. Were I an attorney in a future gun case, I'd be citing that bad boy.
Link Posted: 6/26/2008 12:43:51 PM EDT

Originally Posted By badfish274:

Originally Posted By happycynic:
(3) The fact that military technology has changed to such a degree that arms "of common use" would potentially be of no effect in modern war does not change the right to keep arms "of common use," nor does it extend the right to "uncommon" arms, whatever those may be, even if such weapons are needed to be an effective soldier in modern war.  


Say that slower and with smaller words and sentences.  I really can't grasp this.


The right extends to arms "of common use."  It doesn't matter if they are effective on a modern battlefield or not.  
Link Posted: 6/26/2008 12:43:57 PM EDT
Link Posted: 6/26/2008 12:44:12 PM EDT

Originally Posted By PAEBR332:
Per Scalia since ONE of the purposes for the Second was to have an effective militia, and in modern times an effective militia may require "sophisticated arms that are highly unusual in society at large." he seems to be broadly hinting that BANS on things like M16s are also out of bound. The 86 registration ban is eerily similar to the handgun ban used by DC. If one falls, the other should as well


If you're right, I hope this is challenged before anyone in the majority leaves the court.
Link Posted: 6/26/2008 12:44:57 PM EDT

Originally Posted By Zaphod:

Originally Posted By happycynic:
He is attempting to explain the relevance of the prefatory clause in such a way as to leave the door open for a continued ban on an undefined class of military weapons.  It breaks down something like this from my reading:

(1) The rights protects keeping and bearing arms "of common use."
(2) One of the original purposes of the amendment, as seen in the prefatory clause, is that the citizens would bring their own arms "of common use" and form a militia with them.
(3) The fact that military technology has changed to such a degree that arms "of common use" would potentially be of no effect in modern war does not change the right to keep arms "of common use," nor does it extend the right to "uncommon" arms, whatever those may be, even if such weapons are needed to be an effective soldier in modern war.  


My take is that he was trying to hint at a response to "Does this mean the RKBA allows you to use nukes?".

Let's face it: anything that we would be interested in, from handguns right up to Ma-Deuces, are in COMMON USE, either in the military or in their civilian versions. What ISN'T in common use is things like AT rockets and such, which even in the military are generally issued only to select troops, rather than across the board.

It almost sounds as if he's saying that the NFA and the MGB are both full of shit.


I think that what we eventually get will be limited to semi-auto.  I would be shocked to see the Court grant a right to a LMG.  
Link Posted: 6/26/2008 12:45:10 PM EDT

Originally Posted By LibertyShip:
I was interested in the fact that Scalia specifically referred to holding a gun on a burglar.  A burglar is only guilty of a property crime, not a crime against your person.  He didn't say killer, rapist, violent intruder.

I assume that this language is not used thoughtlessly by a Supreme Court Justice who has had so much time to render and review an opinion.

Is he also sending a message regarding scope of the use of lethal force?


Hardly, most of the opinion is dedicated to "self-defense."
Link Posted: 6/26/2008 12:45:32 PM EDT

Originally Posted By badfish274:

Originally Posted By PAEBR332:
Per Scalia since ONE of the purposes for the Second was to have an effective militia, and in modern times an effective militia may require "sophisticated arms that are highly unusual in society at large." he seems to be broadly hinting that BANS on things like M16s are also out of bound. The 86 registration ban is eerily similar to the handgun ban used by DC. If one falls, the other should as well


If you're right, I hope this is challenged before anyone in the majority leaves the court.

So apply for a stamp for a new machine gun and hurry the fuck up!
Link Posted: 6/26/2008 12:45:33 PM EDT

Originally Posted By happycynic:

Originally Posted By badfish274:

Originally Posted By happycynic:
(3) The fact that military technology has changed to such a degree that arms "of common use" would potentially be of no effect in modern war does not change the right to keep arms "of common use," nor does it extend the right to "uncommon" arms, whatever those may be, even if such weapons are needed to be an effective soldier in modern war.  


Say that slower and with smaller words and sentences.  I really can't grasp this.


The right extends to arms "of common use."  It doesn't matter if they are effective on a modern battlefield or not.  


This is my reading as well.
Link Posted: 6/26/2008 12:45:47 PM EDT

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.


I read it to mean that the right protected by the Second Amendment cannot be invalidated simply because the arm may not be suited to modern military service because of the advancement of technology.   Just because we live in the day and age of the GPS guided smart bomb the citizenry still has the right to keep and bear arms.

Link Posted: 6/26/2008 12:45:49 PM EDT

Originally Posted By PAEBR332:
Per Scalia since ONE of the purposes for the Second was to have an effective militia, and in modern times an effective militia may require "sophisticated arms that are highly unusual in society at large." he seems to be broadly hinting that BANS on things like M16s are also out of bound. The 86 registration ban is eerily similar to the handgun ban used by DC. If one falls, the other should as well


Bingo.

Glad I'm not the only one who thought it said that. If we're right, it's a TECTONIC SHIFT on the gun debate.
Arrow Left Previous Page
Page / 14
Top Top