User Panel
Posted: 6/26/2008 12:22:28 PM EDT
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.
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.
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:
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:
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.
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.
“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:
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.
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.
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:
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:
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.
All this being said, Justice Scalia wraps up his analysis of the textual interpretation of the 2nd Amendment.
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:
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:
Which he shoots down. This is going to be important, because Justice Scalia does not overrule or disparage Miller.
Let that last sentence sink in. Miller is still good law.
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.
That doesn’t sound good, if Miller is still good law.
I don’t see anything about concealed carry, NFA, 86 FOPA, 68 GCA, import ban, sporting clause, etc in that passage. But wait:
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:
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.
He mentions the standard of review there, and also in a footnote:
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.
The trigger lock provision is also unconstitutional.
Licensing was not an issue, because Heller did not make it an issue.
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’.
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:
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.
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. |
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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.
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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. |
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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. |
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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. |
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scaryblackguns has a tack at the top of GD. I'll add a link here. |
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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. |
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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. |
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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 |
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Just to emphasize the best passage (as you pointed out), found in a footnote no less:
That is HUGE. |
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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 |
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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. |
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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!!! |
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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! |
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How binding is a footnote like that? |
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I stopped at the majority, I read the first 3 para's of Stevens dissent and said fuck it Im to happy to deal with his ramblings....
You also deal with workers comp all day long so you should have time Plus ARFCOM needed this.... |
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Say that slower and with smaller words and sentences. I really can't grasp this. |
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That was like a Mike Tyson uppercut. |
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Looks like we are going to have to fight him for every inch.. I jail an option for him and his cronys? |
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Your reading does not fit well with this passage from page 55 (my emphasis):
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 |
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Fucking awesome. |
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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. |
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He effectively says the same thing during the main body. Fairly effective and can be referenced for future cases |
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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? |
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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. |
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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. |
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The right extends to arms "of common use." It doesn't matter if they are effective on a modern battlefield or not. |
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Regarding my take on the machine guns.
Heller says classes of weapons commonly in use can not be banned. The 2nd provides an individual right, we are the militia, the militia is entitled to bear military weapons contemporary to the weapons used by the standing military. Even though the superiority of the government's technology trumps the lowly M16, that alone is not reason to deny the right to have an M16. Basically antis have long argued that the 2nd is antiquated, and therefore not valid, because even if you had a machine gun you could not stand toe to toe with the government. To take away the M16 is to strip the militia of the weapons it is entitled to have, thus rendering it in effectual and leaving the 2nd amendment a paper tiger - unacceptable to Scalia. It very much reads to me that the NFA is fine in terms of registration and tax stamps/administrative fees, BUT... he would be opposed to states refusing class 3 on equal protection grounds, he would oppose CLEO sign off because it is arbitrary, he would support repeal of the 86 amendments that prohibit new manufacture since it is a de facto ban - there are not enough legally owned class 3 weapons to meet demand. The shortage is a government induced shortfall, not a market failure. Thus it is a de facto ban. |
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If you're right, I hope this is challenged before anyone in the majority leaves the court. |
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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. |
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Hardly, most of the opinion is dedicated to "self-defense." |
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So apply for a stamp for a new machine gun and hurry the fuck up! |
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This is my reading as well. |
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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. |
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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. |
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