Supreme Court Gun Ban Ruling Expected Tomorrow - June 26, 2008

[JohnRich 4]

The findings:

Held:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous armsbearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individualrights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.
2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement.
Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.
478 F. 3d 370, affirmed.

[Nightingale 0]

I'm really curious as to how this will affect non-right to carry states. I see many lawsuits in California's future.

[warpedskydiver 0]

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Based on some of the decisions that have been announced as of late, I'm not betting on it...

Really! A firm decision pro 2nd would be a great day, IMO.

Yeah it would.

Of course, a broken record never plays a different tune.

[nerdgirl 0]

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The findings .... .

Thanks for the summary.
From the synopsis reads as a fair and wise ruling, imo, with the exception of the implications for ambiguous "assault rifle" category as you pointed out.

VR/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[StreetScooby 5]

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...non-right to carry states

My brief glance through the decision didn't seem to confirm right to carry (i.e., lug the thing around you at the mall).

We are all engines of karma

[rushmc 18]

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I'm really curious as to how this will affect non-right to carry states. I see many lawsuits in California's future.

I was just listening to some lawyers speak to this on Glen Beck. He said, this is the BEGINNING of the debate not the end. I agree with his assesment. But, this ruling sets the starting place very clearly and puts supporters of the 2nd amendment on more solid footing .

As to your question? We will see.

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[Nightingale 0]

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...non-right to carry states

My brief glance through the decision didn't seem to confirm right to carry (i.e., lug the thing around you at the mall).

The opinion extensively discussed the right to "keep" and "bear", and defined "bear" as carry, but did not extend it to concealed carry.

[JohnRich 4]

The predictable Brady Campaign anti-gun response:

Statement Of Brady President Paul Helmke
On Supreme Court Second Amendment Ruling
For Immediate Release:
06-26-2008
Brady Center to Prevent Gun Violence

Washington, D.C. - Paul Helmke, President of the Brady Center and Brady Campaign to Prevent Gun Violence, issued the following statement:

“Our fight to enact sensible gun laws will be undiminished by the Supreme Court’s decision in the Heller case. While we disagree with the Supreme Court’s ruling, which strips the citizens of the District of Columbia of a law they strongly support, the decision clearly suggests that other gun laws are entirely consistent with the Constitution.

“For years, the gun lobby has used fear of government gun confiscation to thwart efforts to pass sensible gun laws, arguing that even modest gun laws will lead down the path to a complete ban on gun ownership. Now that the Court has struck down the District’s ban on handguns, while making it clear that the Constitution allows for reasonable restrictions on access to dangerous weapons, this ‘slippery slope’ argument is gone.

“The Court also rejected the absolutist misreading of the Second Amendment that some use to argue ‘any gun, any time for anyone,’ which many politicians have used as an excuse to do nothing about the scourge of gun violence in our country and to block passage of common sense gun laws. Lifesaving proposals such as requiring Brady background checks on all gun sales, limiting bulk sales of handguns, and strengthening the power of federal authorities to shut down corrupt gun dealers can now be debated on their merits without distractions of fear or ideology.

“The Heller decision, however, will most likely embolden criminal defendants, and ideological extremists, to file new legal attacks on existing gun laws. With the help of the Brady Center’s legal team, those attacks can, and must, be successfully resisted in the interest of public safety.

“After the Heller ruling, as before, approximately 80 Americans will continue to die from guns every day. Our weak or non-existent gun laws contribute to the thousands of senseless gun deaths and injuries in this country that occur each year. We must continue to fight for sensible gun laws to help protect our families and our communities.”

[StreetScooby 5]

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and defined "bear" as carry

So, we can start packing, as long as its not concealed?

We are all engines of karma

[JohnRich 4]

The NRA response:

U. S. Supreme Court Strikes Down D.C. Gun Ban!
Declares That the Second Amendment Guarantees an Individual Right to Keep and Bear Arms
-- June 26, 2008

Fairfax, VA – Leaders of the National Rifle Association (NRA) praised the Supreme Court’s historic ruling overturning Washington, D.C.’s ban on handguns and on self-defense in the home, in the case of District of Columbia v. Heller.

“This is a great moment in American history. It vindicates individual Americans all over this country who have always known that this is their freedom worth protecting,” declared NRA Executive Vice President Wayne LaPierre. “Our founding fathers wrote and intended the Second Amendment to be an individual right. The Supreme Court has now acknowledged it. The Second Amendment as an individual right now becomes a real permanent part of American Constitutional law.”

Last year, the District of Columbia appealed a Court of Appeals ruling affirming that the Second Amendment to the Constitution guarantees an individual right to keep and bear arms, and that the District’s bans on handguns, carrying firearms within the home and possession of functional firearms for self-defense violate that fundamental right.

“Anti-gun politicians can no longer deny that the Second Amendment guarantees a fundamental right,” said NRA chief lobbyist Chris W. Cox. “All law-abiding Americans have a fundamental, God-given right to defend themselves in their homes. Washington, D.C. must now respect that right.”

[ChasingBlueSky 0]

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Thank you Mr. Heller and the NRA. It's too bad it took 30 stinking years to get this done.

Now if someone would only bring the FISA changes to them so we could protect our 4th Amendment rights as well. I guess personal privacy isn't as important eh

_________________________________________
you can burn the land and boil the sea, but you can't take the sky from me....
I WILL fly again.....

[Nightingale 0]

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and defined "bear" as carry

So, we can start packing, as long as its not concealed?

I wouldn't advise that. Just because something might be constitutional doesn't mean all the details have been hashed out legally. Practically speaking, to clarify that will take either a change of law in states that currently do not permit open carry, or a plaintiff willing to take it to court, and to have a cause of action, they'd have to show that they personally had been affected by an open carry ban (translation: they probably need to get arrested for carrying openly so they can claim their rights have been violated). Personally, I don't want to be that test case.

[nathaniel 0]

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Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement.

I'm wondering whether a legal eagle could weigh in on licensing. AFAIK Chicago has a licensing program already but almost never issues licenses except for city councilmen and other servants of the city and state.

Does the ruling put any language toward what would be an arbitrary or capricious licensing system? Large registration fees or "education" requirements, etc... I don't doubt the creativity of the Chicago city council.

My advice is to do what your parents did; get a job, sir. The bums will always lose. Do you hear me, Lebowski?

[warpedskydiver 0]

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Thank you Mr. Heller and the NRA. It's too bad it took 30 stinking years to get this done.

Now if someone would only bring the FISA changes to them so we could protect our 4th Amendment rights as well. I guess personal privacy isn't as important eh

I too look forward to SCOTUS protecting our 4th Amendment rights, as I do all others.

[warpedskydiver 0]

Licensing and or restrictions on exercising your Constitutional rights seems to fall flat on it's face.

I look forward to see Mayor Daley dragged off in chains.

My close friend is running for Cook County Sheriff.

He has the moral character that it would take to enforce the law, and nobody would be above that.

He would drag the mayor out in handcuffs, for violating the constitutional rights of anyone,

[Nightingale 0]

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Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement.

I'm wondering whether a legal eagle could weigh in on licensing. AFAIK Chicago has a licensing program already but almost never issues licenses except for city councilmen and other servants of the city and state.

Does the ruling put any language toward what would be an arbitrary or capricious licensing system? Large registration fees or "education" requirements, etc... I don't doubt the creativity of the Chicago city council.

The court held that there is an individual right to bear arms. If you look at past court rulings that have dealt with subjects such as abortion (inferred constitutional right to privacy), the court has stated that restrictions on rights cannot be overly burdensome or unreasonable. It is logical that they would extend the same reasoning to the second amendment. The Heller ruling is really only the tip of the iceberg. Now that we've got the Second Amendment defined as an individual right, states and municipalities are going to be testing the limits as to how far they can go and stay within the bounds of the ruling.

[TankBuster 0]

A major victory for those of us who still believe in the United States Constitution.

The forecast is mostly sunny with occasional beer.

[warpedskydiver 0]

I think LULA needs a workout today

Now if only .308win and 5.56NATO would come down to around $150/1k

[Nightingale 0]

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Licensing and or restrictions on exercising your Constitutional rights seems to fall flat on it's face.
...

No, not really. If you look at things like the First Amendment right to peaceful assembly, it's been held that states and municipalities can put "reasonable restrictions" on things like "time, place and manner" and require permits for such things.

Since the Heller ruling specifically did not extend rights to people who have felony convictions or have been adjudicated mentally ill, a license may be a logical step here, since the presentation of the license would indicate that the person in question has been checked and is not disqualified from purchasing a handgun. It would make things easier on the gun store owners, since they wouldn't need to do their own checking and probably won't be liable for selling to someone who the state has issued a license in error. However, states and municipalities who issue licenses arbitrarily (to campaign contributors and movie stars, for example) would probably run afoul of this, because failing to issue a license to someone for a reason other than that person being unable to legally possess a firearm would be like failing to issue a permit to a group wanting to assemble because, while their speech is lawful, you don't like it.

[Andy9o8 0]

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Does the ruling put any language toward what would be an arbitrary or capricious licensing system?

No, because the SCOTUS does not issue advisory opinions; it only passes on actual cases and controversies; and this case did not deal with whether a particular licensing scheme was or was not arbitrary or capricious. That will have to be done on a case by case basis.

[livendive 8]

Very cool. It's got some language that concerns me but it's at least a nice start.
Blues,
Dave

"I AM A PROFESSIONAL EXTREME ATHLETE!"
(drink Mountain Dew)

[Nightingale 0]

In honor of this ruling, I will be going to the range tonight to exercise my individual Second Amendment rights.

[nerdgirl 0]

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Thanks for the additional analysis.

VR/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[warpedskydiver 0]

Agreed, but I think you knew what I meant.

Unreasonable Licensing restrictions (celebs, politicians) and or other means of discrimination.

There is nothing reasonable about restricting the rights of someone who has not run afoul of the law, and or lost his RKBA due to mental illness, or other reason.

[lawrocket 3]

And now, if some predictions hold true, there will be a huge upswing in violence and crime as people take their legal firearms and every cul de sac becomes the OK Corral.

Now to the real meat:

I won't have time to really digest this thing for at least the next few hours. But, I can get a few things:

1. The Second Amendment is an individual right. They looked at "the People" in the 2nd Amendment as like that of "the People" in the 4th Amendment - that it doesn't mean that only a collective of people is free from warrantless searches, but every individual has the right.

2. "Arms" is not limited solely to weapons designed for military use.

3. "Keeping arms" means owning them,

4. ""Bearing Arms" means carrying for offensive or defensive purposes, regardless of whether the bearer is in the military. (The dissent argued that in reading the plain language, that bearing arms means doing so in the military).

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Putting all ofthese textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.

5. "Militia" - the Militia is not the Army or the Navy, which the Constitution specifically empowered Comgress to create. Rather, the Constitution, in Article I, section 8 is empowered to "provide for calling forth militia." thus, the militia was in existence prior to the Constitution creating it. The militia is everyone, and Congress can call them up and organize them (the draft).

6. "Well regulated" means training and discipline.

7. "Security of a Free State" means to protect the system of freedom, not to protect each individual State as "free."

8. The prefatory clause (a well-regulated militia) explains the reasons, and the operative clause (shall not be infringed) commands.

9. The Miller Case was examined under the understand that the 2nd Amendment provides an individual right. "Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen."

Miller[/] merely found that Second Amendment protections do not apply to certain types of weapons. Scalia then put in a bit of a jab - that there is danger relying on the interpretation that Miller allowed only weapons useful in the military, as the dissenters suggested, for that would mean that machine guns cannot be banned. And that the Miller court stated, "“[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.”

Said the majority, "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."

10. That the DC law banned all handguns, unless rendered inoperable by atrigger lock or being disassembled. That there is an inherent right to self-defense, and that it is unconstitutional to ban outright an entire class of arms that is preferred by citizens when used for lawful purpose, and that the requirement that the guns be inoperable effectively prevents a citizen from the ability to use them for the lawful purpose of self-defense.

In a sense, what he said is that you can't make self-defense illegal. The law provided for no guns, except for law enforcement. (Go back to tyranny - disarm the militia and keep them yourself. It's what DC did - or tried to do).

11. Scalia discusses Breyer's suggestion for a new type of judicial scrutiny - an "interest-balancing inquiry." And fidns that something like that is not a good idea, that interest-blancing was conducted by the people in ratifying the amendment, and there's no legitimate reason to treat the Second Amendment any differently than other amendments.

I'll get to the dissent later. Ive just given my synopsis of 67 pages.

My wife is hotter than your wife.