Year: 2008

Four justices of the Supreme Court of the United States were completely willing to read out part of the Bill of Rights because they don’t like the result that comes from it.  We can seek comfort that we got a five vote majority, but it’s a little close for my comfort.  Come this fall, we must do absolutely everything humanly possible to ensure that Barack Obama is defeated, or watch future courts retreat from the Heller ruling faster than you can shake a stick.  While Justice Stevens and Ginsburg are likely retirees under an Obama administration, it can’t be ruled out that Justice Scalia, or Kennedy, who are both getting up there in age, won’t end up leaving the court, or dying.  We absolutely must not allow Obama to win, or that could undo all of this.

The gun control movement will not take Heller lying down.  They are not going to crawl off into a corner and die.  This changes the game we’re playing, but it doesn’t end it.

The Court did not much address the issue of machine guns, but the “common use” test that it prescribes will be problematic.  However, I think The Court has set itself up for an intellectual bind.  Machine guns are not in common use, but that’s entirely because of the 1986 prohibition on new registrations preceded by 18 years of heavy regulations inder GCA 68, and decades of regulation prior to that under the National Firearms Act.  In short, machine guns fail the common use test because government regulations and prohibitions make them uncommon.   I think this is an argument that could be raised later that could possibly ease restrictions.

I think there’s ample language in the opinion to argue that the second amendment is incorporated against the states, and that will be the next step.   Chicago, New York, and I think, even Massachusetts and New Jersey’s licensing restrictions can be construed to meet the standard of “arbitrary and capricious.”  In fact, I would view this somewhat similar to “seperate but equal”  In that the Civil Rights movement was later able to argue that seperate can never be equal.   I think one could perhaps argue that licensing, or having to get the government’s permission, can always be subject to arbitrary and capricious standards.

On the “bearing” of arms, I think The Court leaves open the possibility, and perhaps even suggests the possibility that the state must allow some form of carrying arms for self-defense.  This would presumably mean openly carrying of arms being legal everywhere, with states still free to regulate wearing of weapons.  But I would argue that perhaps the states can regulate concealed firearms, they may not outright prohibit them, since, given changes in society since the 19th century, that amounts to the destruction of the right.

My opinion, having read Justice Scalia’s opinion on this case, is that Heller is better than I had hoped for.  I think this lays effective groundwork for taking this issue forward, and the lower courts are going to have a difficult time skirting around it.

I think The Court has argued that the state must permit some form of bearing arms for the purposes of self-defense.  Or at the least has left the possibility open for the future.  It seems that regulating concealed carry will be permitted.

I think the Heller opinion leaves the door wide open for incorporation, as far as I can tell.  I’m still reading.

The Court says:

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.

Not that this does not mean The Court is endorsing licensing.  It’s saying it does not consider that, but presumed, because the issue wasn’t raised, that licensing would be sufficient for the purposes of relief for Mr. Heller.  They also demand the licensing must not be arbitrary or capricious.  Massachusetts licensing scheme, and New Jersey’s, would be under jeopardy here.  As would New York City’s.

Here’s some limitations prsented from the opinion:

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.

Interesting.  Perhaps The Court will be willing to entertain open carry being constitutionally protected, while concealed carry remains something that may be licensed by the state.  But can it be outright prohibited?   Doesn’t seem to get into that.

The Supreme Court has ruled in the case of DC vs. Heller that DC’s ordinances are a violation of the Second Amendment.  This is a momentous occasion.  Let the celebrations begin.

While we may not follow our constitution to the letter, at the very least, the Bill of Rights means something, no matter how much the gun haters wish it didn’t.

Long Live the Bill of Rights! Long live the Second Amendment, the individual right of Americans to keep and bear arms.  The Brady Campaign, VPC, CeaseFire PA, and others, can get down and kiss our collective asses for ever trying to con Americans into believing it was only a collective right.

Mr. Gura, Mr. Levy, and many others who’s life’s work brought this to fruition, we don’t just owe you a drink, we owe you a whole damned liquor store.

Unless Chief Justice Roberts is pulling our leg, today will be the day.  Stay tuned for details.  Don’t bite your nails down too far.

UPDATE: The Court will begin releasing opinions at 10.  In the mean time, Scotusblog has some interesting polls on their live blog coverage here.

UPDATE: This will be a momentous day for gun owners, no matter what the decision.  From here on out, things will be different.  This is the biggest day for those who care about the second amendment, probably ever.

UPDATE: The Court releases cases apparently according to seniority, so we’ll be dead last is Scalia is indeed the writer the Heller opinion.

UPDATE: I’m as giddy as a school girl.

UPDATE: Squirming in my seat here.

UPDATE: The case of Heller v. District of Columbia is AFFIRMED!

UPDATE: Scalia wrote the majority opinion.  Ginsburg, Stevens, Souter and Breyer dissented.  This case fell along ideological grounds, with the liberals dissenting.

UPDATE: Apparently there are two dissenting opinions.  This is a 5-4 ruling.  Closer than I would have liked, but a win, nontheless.

UPDATE: I will get the opinion, and read it, and give you my take as soon as I have time.