2nd Ammendment affirmed!

[mf_dolphin]

The Supreme Counrt afirmed the right of each and every American to keep and bear arms. While I don't currently own any firearms I agree wholeheartedly with their decision to strike down the ban that Washing DC had imposed.

[x-y-no]

I skimmed the opinion. I'm not sure I agree with all the reasoning but I agree with the result. The DC law was definitely too restrictive.

There will be a bunch of new litigation based on this, though, since Miller is basically dumped by this opinion. Scalia was careful to list precedents he says will not be affected by this, but as much of those precedents rested on Miller it's not clear how that works.

[Ed Mahmoud]

I'm surprised that four justices would basically agree that the Second Amendment alone, among the Bill of Rights, was not an individual right.


I also like the smackdown Scalia laid on Breyer.

JUSTICE BREYER moves on to make a broad jurisprudential
point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. 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. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). 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.

[gtalum]

The USSC is 3 for 3 in the last week or so on big cases, IMHO. Way to go!

[x-y-no]

I'm surprised that four justices would basically agree that the Second Amendment alone, among the Bill of Rights, was not an individual right.

There are other collective rights in the Bill of Rights - peaceable assembly, for instance.

I commend Justice Stevens' dissent to you. I don't agree in this case but his argument is not without substantial merit.

[Squarethecircle]

Although I would like a way to reduce violence around here, the ban was pretty unconstitutional, whether or not one agrees with its motives.

[Ed Mahmoud]

The USSC is 3 for 3 in the last week or so on big cases, IMHO. Way to go!

The death penalty, by lethal injection, for a man who rapes an 8 year old so savagely she needed reconstructive surgery does not violate the 8th amendment, in my humble opinion, although the SCOTUS has previously set precedent for the death penalty being excluded in cases where the victim survived.


Of course, I am not a big fan of the traditional, but not legally established, principle of stare decisis.

[Ed Mahmoud]

Although I would like a way to reduce violence around here, the ban was pretty unconstitutional, whether or not one agrees with its motives.

The court did not overturn DC's requirement for yearly license renewal to possess a fire arm, just directed the city to grant one to Heller. If one makes the license difficult to get, and expensive, the amount of guns carried by the non-criminal general public in DC will be safely outnumbered by the number of guns carried by criminals.

[southerngale]

The USSC is 3 for 3 in the last week or so on big cases, IMHO. Way to go!

I don't agree with all of them, but I agree with this one.

[mf_dolphin]

There are other collective rights in the Bill of Rights - peaceable assembly, for instance. I commend Justice Stevens' dissent to you. I don't agree in this case but his argument is not without substantial merit.

Actually Justice Scalia argues that peaceable assembly is an individual right. The fact that an "assembly" involves more that one individual is immaterial. I haven't read both of the dissenting decisions yet but I look forward to that as soon as I can make time.

[x-y-no]

Hmmm ... I'll have to read that to see how that could work ... seems to me "assembly" necessarily implies a collection of people. Not clear how an individual assembles.

[Derek Ortt]

The Supreme Counrt afirmed the right of each and every American to keep and bear arms. While I don't currently own any firearms I agree wholeheartedly with their decision to strike down the ban that Washing DC had imposed.

shockingly it was only a 5-4 decision (the dissenting opinion was borderline that of an mental institutionalized rambling). This means it could possibly be reversed if the court changes

[Derek Ortt]

The USSC is 3 for 3 in the last week or so on big cases, IMHO. Way to go!

The death penalty, by lethal injection, for a man who rapes an 8 year old so savagely she needed reconstructive surgery does not violate the 8th amendment, in my humble opinion, although the SCOTUS has previously set precedent for the death penalty being excluded in cases where the victim survived.


Of course, I am not a big fan of the traditional, but not legally established, principle of stare decisis.

that case is a tough one.

Now, if they declared death for treason unconstitutional (when the constitution EXPLICITLY declares death to be an appropriate punishment for treason), then we know that the Supreme Court has went off the deep end and I would never again abide by their decisions

[x-y-no]

shockingly it was only a 5-4 decision (the dissenting opinion was borderline that of an mental institutionalized rambling). This means it could possibly be reversed if the court changes

I don't accept that characterization of the dissents at all. I've only skimmed, but on first impression I didn't find Breyer's dissent particularly persuasive but well enough reasoned. Stevens' dissent was well considered and not so easily dismissed (although in the end I don't think I agree with him either.)

[george_r_1961]

Does this mean anyone who can see past their end of their nose and who has no felony or domestic violence convictions can carry heat?? I certainly hope not.

[Ed Mahmoud]

Does this mean anyone who can see past their end of their nose and who has no felony or domestic violence convictions can carry heat?? I certainly hope not.

Within reasonable limits, as mentioned in the decision, it is a constitutional right. Mental illness is also a disqualifier.

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.

Edit to add- re concealed weapons. In Texas, concealed weapons permits are issued, but open carry is an issue.

[Ed Mahmoud]

Speaking of SCOTUS decision (warning- site linked could be considered political), the granting of habeas corpus rights to Guantanamo Bay terrorists, rights not granted to lawful, uniformed combatants, will probably kill Americans, as Scalia predicted in his dissent. (See below)


Freed Guantanamo Bay detainee in al Qaeda truck bomb video.

America is at war with radical Islamists. The enemy
began by killing Americans and American allies abroad:
241 at the Marine barracks in Lebanon, 19 at the Khobar
Towers in Dhahran, 224 at our embassies in Dar es Salaam
and Nairobi, and 17 on the USS Cole in Yemen. See
National Commission on Terrorist Attacks upon the
United States, The 9/11 Commission Report, pp. 60–61,
70, 190 (2004). On September 11, 2001, the enemy
brought the battle to American soil, killing 2,749 at the
Twin Towers in New York City, 184 at the Pentagon in
Washington, D. C., and 40 in Pennsylvania. See id., at
552, n. 9. It has threatened further attacks against our
homeland; one need only walk about buttressed and barricaded
Washington, or board a plane anywhere in the
country, to know that the threat is a serious one. Our
Armed Forces are now in the field against the enemy, in
Afghanistan and Iraq. Last week, 13 of our countrymen in
arms were killed.
The game of bait-and-switch that today’s opinion plays
upon the Nation’s Commander in Chief will make the war
harder on us. It will almost certainly cause more Americans
to be killed. That consequence would be tolerable if
necessary to preserve a time-honored legal principle vital
to our constitutional Republic. But it is this Court’s blatant
abandonment of such a principle that produces the
decision today. The President relied on our settled precedent
in Johnson v. Eisentrager, 339 U. S. 763 (1950), when
he established the prison at Guantanamo Bay for enemy
aliens.

[x-y-no]

Speaking of SCOTUS decision (warning- site linked could be considered political), the granting of habeas corpus rights to Guantanamo Bay terrorists, rights not granted to lawful, uniformed combatants, will probably kill Americans, as Scalia predicted in his dissent. (See below)

I'd note that none of the dissenters in DC v. Heller resorted to Scalia-style histrionics.

And Scalia quoted the urban legend that 30 Gitmo detainees have "returned to the battlefield" since being released.

Even if that number were accurate, that's actually a very low recidivism rate - implying that the great majority of those held were in fact innocent.

It hardly seems consistent with American beliefs to indefinitely imprison large numbers of innocent people lest some small fraction of those held actually are guilty.

[Ed Mahmoud]

It hardly seems consistent with American beliefs to indefinitely imprison large numbers of innocent people lest some small fraction of those held actually are guilty.

I'm giving the benefit of the doubt to the Army that more than a small fraction captured on the battlefield was probably involved in the fighting.

This risk getting political, however, some Gitmo prisoners are already getting habeas hearings.


CNN story.

I suppose the US military could have been wrong is assuming a citizen of the Peoples Republic of China in an al Qaeda training camp in Afghanistan was involved in the Global War on Terror.



I'd also note that Congress and the Executive did what SCOTUS requested, and passed a tribunals bill, and then they rejected that as well.


The whole point of Gitmo was keeping them in a safe place outside the US, because habeas rights have never applied to non-citizens, IIRC. To avoid exposing methods and sources in open court proceedings, the US will probably wind up releasing terrorists rather than go through with civilian trials.

[brunota2003]

Well, the Bill of Rights was created to protect and guarantee individual freedoms...not "state" freedoms, so therefore, anyone arguing that it means only the militias can have access to guns is already proven wrong.