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Heller: The Good, The Bad, and The Ugly
WoundedWolf
Member Posts: 1,658 ✭✭✭✭✭
I have read Scalia's entire opinion and I have read the responses from you guys so far. I feel compelled to chip in some specific quotes from the Heller decision in hope of starting a more in-depth discussion.
I know that most of you hate it (surprisingly even in the GD thread by old Fox). Nevertheless, today's decision is one that many of us have been waiting for years. When I joined this forum in 2004, this type of Supreme Court decision was a total hypothetical. Today it has become part of history and, despite your personal opinions, we all must admit it is SIGNIFICANT to the gun rights movement.
THE GOOD:
"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."
"None of the Court's precedents forecloses the Court's interpretation. Neither United States v. Cruikshank... nor Presser v. Illinois... refutes the individual-rights interpretation. United States v. Miller... 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."
"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."
"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.'"
"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... 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."
".history showed that the way tyrants had eliminated a militia consisting of all the able-bodied 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."
"That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen's right to self-defense is strong evidence that that is how the founding generation conceived of the right."
THE BAD:
"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."
"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."
".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."
THE UGLY:
".the Second Amendment confers an individual right to keep and bear arms (though only arms that `have some reasonable relationship to the preservation or efficiency of a well regulated militia')."
"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.'.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.'... 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"
"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."
"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.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."
"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... 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."
I know that most of you hate it (surprisingly even in the GD thread by old Fox). Nevertheless, today's decision is one that many of us have been waiting for years. When I joined this forum in 2004, this type of Supreme Court decision was a total hypothetical. Today it has become part of history and, despite your personal opinions, we all must admit it is SIGNIFICANT to the gun rights movement.
THE GOOD:
"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."
"None of the Court's precedents forecloses the Court's interpretation. Neither United States v. Cruikshank... nor Presser v. Illinois... refutes the individual-rights interpretation. United States v. Miller... 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."
"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."
"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.'"
"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... 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."
".history showed that the way tyrants had eliminated a militia consisting of all the able-bodied 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."
"That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen's right to self-defense is strong evidence that that is how the founding generation conceived of the right."
THE BAD:
"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."
"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."
".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."
THE UGLY:
".the Second Amendment confers an individual right to keep and bear arms (though only arms that `have some reasonable relationship to the preservation or efficiency of a well regulated militia')."
"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.'.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.'... 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"
"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."
"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.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."
"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... 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."
Comments
I did have one question: Why was this specific paragraph included in your "bad" section.
quote:Originally posted by WoundedWolf
THE BAD:
"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."
I read the outlining the 2nd Amendment as not "unlimited" in a different manner than you.
They did not affirm the right to carry a gun for any purpose. For example: I cannot carry a weapon for the purpose of attacking my neighbor, just as I cannot use my free speech to slander him.
Just my 2 cents
Each time I read the one about the M-16 I get a different interpretation. Is it telling me that I should be able to own an M-16, but I can't, and that is therefore unconstiutional, but maybe someday it won't be, but it doesn't matter because I can't win a war with one... what the hell?
Each time I read the one about the M-16 I get a different interpretation. Is it telling me that I should be able to own an M-16, but I can't, and that is therefore unconstiutional, but maybe someday it won't be, but it doesn't matter because I can't win a war with one... what the hell?
Agreed, that one makes my head hurt
This paragraph as I understand it should have landed in the GOOD column as it opens the door wide for lawsuits to be filed in those places where '94 "assault weapons ban" style laws have been adopted (i.e. Mass and NY). We have every opportunity now to strike down these clear infringements.
One thing Scalia got wrong (just like Miller), was yet again to fail to recognize that the Miller case incorrectly categorized the sawed-off shotgun as a weapon unusual to military use. If I remember correctly, the short barreled "riot" shotgun was used in the trenches of WWI. One could probably debate to what extent that was true, in order to establish a definition of "common use".
Overall, I, like most here, was disappointed that the decision was not more far-reaching, but it is a difinitive statement of the pre-existing, God given right.
What I fear is that we will now spend the next century fighting "reasonable" restrictions. However, I hold out hope that while I still breath air, that we can win these coming battles. No, we must, and I for one will never surrender.
Monday, July 14, 2008
WASHINGTON - The District of Columbia Council planned to vote Tuesday on emergency legislation to allow handguns, but only if they are used for self-defense in the home and carry fewer than 12 rounds of ammunition.
The legislation announced Monday comes as officials try to comply with a U.S. Supreme Court ruling last month striking down the city's 32-year-old weapons ban.
Click here to read the full opinion on the Supreme Court Web Site.
Click here for photos.
The proposal, which maintains some of the city's strict gun ownership rules and adds more regulations, was immediately criticized by gun rights advocates. They threatened more legal action.
The nation's capital would still require all legal firearms - including handguns, rifles and shotguns - to be kept in the home unloaded and disassembled, or equipped with trigger locks. There would be an exception for guns used against the "reasonably perceived threat of immediate harm."
The proposed legislation also maintains the city's unusual ban of machine guns, defined as weapons that shoot at least 12 rounds without reloading. That applies to most semiautomatic firearms.
"We have crafted what I believe to be a model for the nation in terms of complying with the Supreme Court's Second Amendment decision and at the same time protecting our citizens," interim Attorney General Peter Nickles said.
The National Rifle Association strongly disagreed.
"Clearly, D.C. is doing everything they can to ignore the Supreme Court ruling," said Chris W. Cox, the NRA's chief lobbyist. He said the organization would pursue legal or legislative action to thwart the city's efforts.
The legislation also would require a ballistics test to determine if a handgun is stolen or has been used in a crime.
Police Chief Cathy Lanier will limit registration to one handgun per person for the first 90 days to make sure as many people are served as possible. And those who wish to register a handgun must pass written and vision tests.
Residents who already own handguns will be granted six months of amnesty to legally register their weapons, officials said.
The emergency legislation, which has strong support from the council, will remain in effect for 90 days. It adopts many of the regulations proposed earlier this month by D.C. Council member Phil Mendelson.
FOXNews.com - DC to Vote on Gun Bill in Response to Supreme Court Ruling - Politics | Republican Party | Democratic Party | Political Spectrum
http://www.foxnews.com/story/0,2933,382381,00.html
Read the artcle and Read all 21 comments ?
http://www.nbc4.com/politics/16913155/detail.html
FR Article and Comments:
Plaintiff In D.C. Gun Ban Case To Run For U.S. House Seat
http://www.freerepublic.com:80/focus/f-news/2047870/posts
DCist: New Proposed D.C. Handgun Rules Unveiled
http://dcist.com/2008/07/14/new_proposed_dc_handgun_rules_unvei.php
Instapundit.com - Instapundit
July 15, 2008
D.C.'S HELLER COMPLIANCE seems to focus on imposing bureaucratic barriers in place of legal ones.
http://www.pajamasmedia.com/instapundit/archives2/021696.php
Democratic Congress may solve this problem;
Instapundit.com - July 13, 2008
SOME CIVIL RIGHTS LEGISLATION IN CONGRESS:
Among other things, H. Res. 1331 includes provisions that would repeal D.C.'s ban on many semi-automatic firearms, and repeal the District's firearm registration system, as in H.R. 1399. It would also reduce the District's burdensome restrictions on ammunition, and repeal the District's unique law that allows manufacturers of certain types of guns to "be held strictly liable in tort, without regard to fault or proof of defect," for injuries caused with those guns. D.C. has used this law to bring suits against the firearms industry, but those suits have now been blocked by the "Protection of Lawful Commerce in Arms Act."
(Via SayUncle). posted at 08:33 PM by Glenn Reynolds
http://www.pajamasmedia.com/instapundit/archives2/021613.php
One thing I am upset about is what they said about CCW. I had hoped they would rule more in favor of CCW in public, as I live in Maryland, which has one of the worst CCW laws.
Hope to see you around more.[:D]
And if you can't, why do I have one on a Form 4?
Who says that you can't own an M-16?
And if you can't, why do I have one on a Form 4?
The question, Duckster, should be, "Why should I have to have one on a form 4 at all?"
If one wishes to own an M-16, it should be as simple as walking into a shop, or wherever he finds one to purchase, lay down the money, and walk out with the rifle. No NICS, no 4473, no forms, no special tax.
Who says that you can't own an M-16?
And if you can't, why do I have one on a Form 4?
Well for starters, the Peoples Republik of New York says I can't have an M-16, and a whole host of other states refuse to allow law-abiding citizens to posess one.
originally posted by Duckster:
Who says that you can't own an M-16?
And if you can't, why do I have one on a Form 4?
The question, Duckster, should be, "Why should I have to have one on a form 4 at all?"
If one wishes to own an M-16, it should be as simple as walking into a shop, or wherever he finds one to purchase, lay down the money, and walk out with the rifle. No NICS, no 4473, no forms, no special tax.
And I disagree. The potential for harm to others is too great--it outweighs any real need that you might claim--and therefore society has an interest in making sure that criminals and crazies don't get them and that we have a good idea where the ones owned by civilians are.
But if having one really means that much to you, you can always do the patriotic thing and enlist. Then you'll have your own and get to carry it and clean it and shoot it until you're sick of them. (And this is why few real vets are as crazy about owning such firearms as the non-hackers always seem to be.)
All it takes is some integrity, maturity, fitness and patriotism and you too can be one of America's honored vets and the temporary owner of an M-16.
And I disagree. The potential for harm to others is too great--it outweighs any real need that you might claim--and therefore society has an interest in making sure that criminals and crazies don't get them and that we have a good idea where the ones owned by civilians are.
"...the right of the people to keep and bear arms shall not be infringed, providing they can produce evidence showing a real need."
The 2nd doesn't read like that last time I looked. Maybe you were looking at a different Constitution.
But if having one really means that much to you, you can always do the patriotic thing and enlist. Then you'll have your own and get to carry it and clean it and shoot it until you're sick of them. (And this is why few real vets are as crazy about owning such firearms as the non-hackers always seem to be.)
All it takes is some integrity, maturity, fitness and patriotism and you too can be one of America's honored vets and the temporary owner of an M-16.
Your advice is coming a little late, as I did what you suggested 17 years ago.