HELLER WIN!

I had previously posted this on the oral arguments...
"I just listened to Gura again, and on second listening it sounded even worse. I’m wondering now if a no-show might have been better. I mean...well... it was bad. His comments on licensing...oy! He did all but say outright that any restrictions are reasonable!! "

Well...I'm not wondering anymore. Thanks to Gura's concession, it appears that the licensing of guns to have at home is okay with the court.

"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." (Page 53)

Ah, the big loophole for the expected NFA challenge. The definitions of "lawful purposes" and "typically possessed" will be how the 1986 machine gun ban will be struck down. If the law does not allow typical possession, than how can that limitation be constitutional? It's a chicken and egg argument. And while NFA '34s regulatory scheme might be legal under Heller, how can all automatic firearms lawfully possessed before 1986 be legal while those afterwards are not, even if they are the exact same firearm?

While I am not a lawyer, I am a student of logic. And we've got some excellent ground to plant the next seed of Liberty.

I have listened to the argument at least twenty times. Mr. Gura did an extraordinary job throughout this case. The licensing provision wasn't at issue so this case does not say that such regulations are OK. Courts, especially the Supreme Court, decide cases on narrow grounds. This was merely a battle in a long struggle. I think there will be more to come.

And I should add that I had the pleasure of meeting Mr. Gura at a Federalist Society event shortly after the argument. He had a well thought out plan for the argument in this case and executed his plan.

Giving “bear Arms” its idiomatic meaning
would cause the protected right to consist of the right
to be a soldier or to wage war—an absurdity that no
commentator has ever endorsed. See L. Levy, Origins of
the Bill of Rights 135 (1999). Worse still, the phrase
“keep and bear Arms” would be incoherent. The word
“Arms” would have two different meanings at once:
“weapons” (as the object of “keep”) and (as the object of
“bear”) one-half of an idiom. It would be rather like saying
“He filled and kicked the bucket” to mean “He filled
the bucket and died.” Grotesque.

Say what you want about Scalia, but he certainly has style.

Sorry, forgot the quotation marks. That was on page 13 of the opinion

The only discouraging thing is that after listening to the oral arguments, it seemed like it should have been a 6-3 or better...but I'll take what I can get.

heller link please

http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-2901.pdf

While I'm drinking champagne with all of you scholars (why aren't you?), I will also have to throw a bucket of cold reality on your thoughts, Charlie.

We DON'T HAVE time for a "long struggle". Succeeding Presidential Administrations of ANY flavor are going to try to hammer the Second into the ground with regulation, laws which (they will bluster mightily) DO NOT step on Heller.

The NFA isn't going to go away either, it will be reinforced by pettifogging rules (can you say Section 922A on steroids?).

Only cataclysmic events will end the NFA, but if that's the case, scholars, you'd better lay in some new quills, for a new Constitution, in it's entirety, will be needed in the Second Republic.

thanks

Also, they reiterated that the 2nd Amendment applies to Congress, not the states. Since DC is not a state, I think they can easily get away with saying that the ban is Unconstitutional. But, as I read it, at BEST it can be viewed that state's can't ban guns, but can easily require registration/licensing. This excerpt seems to make it even more foggy:

"On the question of the Second Amendment’s application to the States: “23 With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.”

Good decision, I am surprised that the ratio are so close but at least we have settled this question and can now act for the rights of gun owners with this important precedent on our side

Mike M.

It has already been a long struggle. Miller was decided in the 1930's. But progress is being made, and this case is just one example. The proliferation of concealed carry laws is another. I am as opposed to firearms regulation as most, if not more so. But the right to keep and bear arms has never been absolute, and never will be. Of course, there are several ways to bring about change in our country - bring lawsuits to challenge regulations within the confines of our system of government, amend the constitution, or by revolution. The people fighting this fight are, for the most part, using the first, and preferred method, at this point. The long struggle began decades ago. Thus, at this point,we do, in my opinion, still have time for it.

ARE YOU READY FOR THE NEXT STEP?

THE NEXT STEP IS THE SECOND AMENDMENT AS A HUMAN RIGHT UNDER INTERNATIONAL HUMAN RIGHTS TREATIES

I will now email HELLER OPINION to the INTER-AMERICAN COMMISSION ON RIGHTS (Hamrick v. United States, Petition No. 1142-06) followed up with a mailed hard copy.

What will the NRA do now? Continue ignoring my case?

It's a good day. Thank you, Mr. Hardy, for all your work in this area. Hats off to you, sir.

"The key to that decision did not, as the Court belatedly suggests, ante, at 49–51, turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns. Indeed, if the Second Amendment were not limited in its coverage to military uses of weapons, why should the Court in Miller have suggested that some weapons but not others were eligible for Second Amendment protection? If use for self-defense were the relevant standard, why did the Court not inquire into the suitability of a particular weapon for self-defense purposes?" (Page 43)

And our best libertarian argument came from...Justice Stevens in the dissent. The world turned upside down.

"The key to that decision did not, as the Court belatedly suggests, ante, at 49–51, turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns. Indeed, if the Second Amendment were not limited in its coverage to military uses of weapons, why should the Court in Miller have suggested that some weapons but not others were eligible for Second Amendment protection? If use for self-defense were the relevant standard, why did the Court not inquire into the suitability of a particular weapon for self-defense purposes?" (Page 43)

And a good libertarian argument comes from...Justice Stevens in the dissent. The world turned upside down.

reading the dissenting opinions makes me wonder if written communication is even possible. at least among lawyers... ; )

thank you Bob Levy

Argh...sorry about the double post. I am too quick today on the Send button.

In your opinions, would those states which ban "assault weapons" (ex: California) be guilty of banning "a wide class" of arms? This question presupposes incorporation via 14A.

Is there anything in the decision that will aid eventual incorporation?

Hey look, a whole-cloth standard of review: "core lawful purpose of self-defense" bars the trigger lock provision.

This was a good one. Scalia is really on the ball:

"But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter. Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.

I think we should all count our blessings that the court, for once and for all, recognized that the Second Amendment recognizes an individual right. For how many years have we had to argue with the anti's against the "collective rights" view? The collective rights view is dead and buried. This is a major victory that gave away NOTHING, and that will suffice for now.

It's a little scary that the decision was this close.

Once again...it's Bush's fault.

I just heard on Fox TV where Fenty says he will continue to ban "automatic and semi-automatic" handguns. It seems to me this could also applied to rifles. Are these "a class of arms" also?

As Sandy Fromen said (approximately): This is not the beginning of the end, this is the end of the beginning.
Unfortunately, she is even more obviously correct now than before the ruling. (If more obvious is possible.)

For now I'm going to celebrate was is clearly "a good first step" ^_^ while we and the legal scholars amongst us analyze this.

Like Brown v Board of Education, this is just the start, and it already accomplishes quite a bit, e.g. wasn't the "collective right" interpretation the law of the land outside of the Third and D.C. Circuits?

I'm particularly pleased the majority decision, while narrow (no great surprise there), was unfragemented.

- Harold

As to Mayor Fenty.....

They also address the idea of “only those guns that were around at the writing of the Amendment.” Scalia specifically says that is not the case.

So Mayor Fenty can go pound sand.....

There will plenty of wailing from the ignorant.

One good way to argue for the win is to consider it a civil rights victory. Take a few pages from 'The Racists Roots of Gun Control'.

After a long illness, Jim Crow is finally dead. In today's Heller the country has finally righted a racist wrong that has persisted for centuries. The victory in the 2nd Amendment case restores full citizenship to all, regardless of race.

There are so many quotes to back up this line of
thinking. Cramer's work is full of them. There are plenty of examples like "Act was passed for the purpose of disarming the negro". Civil rights attys everywhere should be celebrating.

What is the ACLU saying? What about the NAACP?

"In your opinions, would those states which ban "assault weapons" (ex: California) be guilty of banning "a wide class" of arms?"

AWs will be considered "unusual and dangerous" so are fair game for the gun grabbers.

After they ban and confiscate semi-auto pistols (and revolvers for that matter) those types of guns won't be in "common use" by the time a challenge comes before the SCOTUS, so they won't be protected either according to the Heller opinion.

DC also currently classifies any firearm that can hold more than 12 rounds as a "machine gun" and prohibits them.

Here is a footnote by Scalia (pg 48) that does not bode well for incorporation:
"purpose] shall not be infringed.” 92 U. S., at 553.
23 With respect to Cruikshank’s continuing validity on incorporation,
a question not presented by this case, we note that Cruikshank also
said that the First Amendment did not apply against the States and did
not engage in the sort of Fourteenth Amendment inquiry required by
our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252,
265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed
that the Second Amendment applies only to the Federal Government."

"Here is a footnote by Scalia (pg 48) that does not bode well for incorporation:"

You’re presenting a footnote out of context. In Cruikshank the idea here is that the state is the first defender of our rights, and only when the state fails to defend does the federal government step in. Scalia presents this as an indicator that the right is an individual one, to be defended by the state first, otherwise the Cruikshank Court would have upheld the federal prosecution of the defendants on this charge.

RE: Graystar 11:54
Wheww!! (sigh of relief). I was hoping I had misinterpreted the footnote!
So, if I read you correctly, Cruikshank held that some of the BoR do not require the 14A to apply to the states?

"So, if I read you correctly, Cruikshank held that some of the BoR do not require the 14A to apply to the states?"

The Cruikshank Court said that the 14th amendment didn’t add anything to the rights one citizen has against another. You must remember that the main point of the Court’s decision in Cruikshank was that violations of a citizen’s rights, by another citizen, should be prosecuted by the state. On that basis, the Court tossed the federal government’s prosecution of Cruikshank. Since the case wasn’t about a governmental body violating the rights of citizen, it gets tricky in application. I like Cruikshank because of its clear description of several principles.

Anyways, in such instances, this is what the Court said of the federal government’s role...“The only obligation resting upon the United States is to see that the States do not deny the right.”

A perfect example of this principle in action was the case of the Ten Commandments monument in Alabama. Then Chief Justice Roy Moore erected a monument with the Ten Commandments in the rotunda of the state judicial building. Several groups sued in federal court to have the monument removed. In this case, the state government failed to protect the rights of citizens, and so the federal government stepped in and protected its citizens’ rights.

I would agree with Tom Goldstein of SCOTUSBLOG where he summarizes, “the opinion leaves open the question whether the Second Amendment is incorporated against the States, but strongly suggests it is. So today’s ruling likely applies equally to State regulation.”

Yes we did win

Please remember that NRA did everyting it could to kill this lawsuit.

NRA also brought us the 86 ban on mg's and agrees with the continuation of ATFE (see JPFO.org)

please remember this in future lawsuits.

HOOORAHA! HOORAHA!! HOORAHA!!!

What is "incorporation" in this sense?

Interesting that majority opinion mentions,

"The Court’s opinion should not be taken to cast
doubt on longstanding prohibitions on the possession of firearms...in sensitive places such as schools and government buildings..."

Yet 18 U.S.C. 930 - Possession of firearms and dangerous weapons in Federal Facilities - states:

"(a) Except as provided in subsection (d), whoever knowingly possesses or causes to be present a firearm or other dangerous weapon in a Federal facility (other than a Federal court facility), or attempts to do so, shall be fined under this title or imprisoned not more than 1 year, or both."

However, if we look further down to the exceptions under (d), we find:

(d) Subsection (a) shall not apply to...

(3) the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes."

Would one not be "lawful(ly) carrying of firearms" for "other lawful purposes" if one carried for self-defense, especially IF one had a state CCW permit and was not in violation of any other law?

If not, then what exactly would an "other lawful purpose" be?

Recognizing of course that the “lawful purpose” exception does not apply to Federal Court facilities as one is prohibited from carrying there, even with a valid permit.

especially given that on page 3 of the majority opinion self-defense is defined as a "core lawful purpose:.