Heller Decision AFFIRMED, INDIVIDUAL right (Scalia)

[gvf]

Stop Marring a Good Time

To those Judges that dissented: .......
It is plain text, in English. There is no bias allowed.
Yet, for some unknown reason, you choose to break your vows to me and every other citizen; including yourself.
You dissented AGAINST The Bill of Rights.
By my definition, I call it Treason

The real ignorance of the constitution - and the marring of an otherwise fine decision - is shown by the above and similar-type comments, which equate difference in opinion with treason; the Bill of Rights was written to safeguard against these very same attitudes and consequent dictatorial actions on the part of our Government.

You should take a course in the basic construction of the country as found in the constitution: a giant and malfunctioning Swiss watch, which isn't supposed to espouse unified beliefs, but the competing interests of various groups, conflicting interpretations of law, inherent and human disagreements of all kinds. Out of this melting pot of conflict in government, the essence of freedom of the people lies, for no opinion of any one power can push out others. You would have it otherwise.

The country will not tolerate extremist views of guns in either form: those who would ban all guns, or those who would push out any restrictions on guns. Running around in a self-righteous/condemning celebration of a moderate legal decision is not the way to go. It misreads the court and the country, and the constitution. It will backfire on you.

Enjoy the decision in a healthy way like most of us are, but best not start the witch-fires or haul out the guillotines.

 

[Al Norris]

At this point, I would like to acknowledge a few individuals that have kept their heads and provided reasonable discourse on the subject.

Kudos go to 44 AMP, BillCA, gc70 and gvf.

If you have made an exceptional comment and I have missed you, I apologize. The above individuals have stood out (in my mind) among all the other posts.

 

[madmag]

Sorry if this has been asked, but there is a lot of material to wade through.

How does this decision effect the actual sale of guns in DC? The Supreme Court has said you can own a gun, but what about the purchase aspects for DC?

 

[WhyteP38]

I think the obvious message is the SCOTUS votes along party lines (5/4 split) - choose your president wisely. We were one justice shy of a complete catastrophy.

I agree with you on the need to choose wisely when choosing a president, even if that person will not put any new justices on the court. But I think the obvious message is that SCOTUS votes as it has always voted: By backwards engineering.

It is my firm belief that the justices already have their minds decided before they even hear the arguments. After hearing the arguments, the justices begin fashioning a chain of reasoning not from the facts and the Constitution to their decision, but from their decision to the facts and the Constitution. To me, that explains why every justice I can think of has at times been inconsistent. In this particular case, it explains why Stevens' dissent went so far afield. There simply was no logical path from his position to the Constitution, so instead he had to twist things to fit.

 

[TimRB]

"The NRA was not fully behind this from the beginning and for a perfectly good reason... FIVE TO FOUR"

Exactly. Everyone on both sides knew that losing a definitive 2d Amendment case would be an unqualified disaster. DC would have been wise to suck it up and rewrite their ban. As it turned out, their appeal was their undoing, but it was *way* too close for comfort--for either side.

Tim

 

[WhyteP38]

it was *way* too close for comfort--for either side

Imagine what would happen if, in a future decision, some justice writes: "The minority would have us believe that over 200 years ago, the Framers made a choice, via the 1st Amendment, to limit the tools available to elected officials wishing to regulate civilian uses of speech" and that such evidence "is nowhere to be found." Such logic could be applied to the Fairness Doctrine.

Heller is a wake-up call for more than just the 2nd Amendment. This case deserves close study for the rationales that will be used regarding gun and other rights. The 2nd Amendment is like the proverbial "canary in the coalmine;" how it is treated foretells what else we can expect in the future.

 

[gandog56]

What scares me is the 5-4 count. If there would have been one more liberal on the court, it would have been 5-4 the other way.

I wonder if mayor Daley is sweating "bullets" now?

 

[Limeyfellow]

The thing I am concerned at is that Scalia's opinion said that handguns are a personal right for the protection of the home. So the ban is still on place on concealed or open carry, the buying regulations and so on. All it says is you can have a handgun in your home. Of course there no comments of how it is legal to get that handgun into your home in the first place. They were very very specific in what was being overturned.

 

[Al Norris]

Limeyfellow, This particular case focused upon the "Keep" portion of the phrase. The case did not challenge the entire right, only a portion of it.

How we lawfully (within the right) bare our arms will be decided in another case on another day.

 

[HKuser]

In regards to the statement that many of the states had already written laws outlining this as an individual right, I agree.
Which were they? I haven't researched that far.
How many of them were state with large slave populations?
Note the many references, even in those statutes, to the rights of FREE men.
I know it is uncomfortable to face, but there are parts of the constitution that were racist.

I think you're reaching here. The slave states had RKBA guarantees without regard to their slave populations, because, simply, they did not consider their slaves worthy of any rights. They were merely very valuable property for the most part. The slave states had property and speech guarantees, but didn't extend those to slaves. In Dred Scot, Taney opined that slaves could never be citizens of any state, unless manumitted, because they then they would have rights, including 2nd Amendment rights "to keep and carry arms wherever they went," which he considered preposterous. That's why the 14th Amendment was written, to ensure the rights in the bill of rights to everyone, including, according its author, the RKBA. The rights in the BoR were hard fought and won in war, legislatures, and legal battles. It's shameful that's it's taken this long to have the 2nd Amendment returned to the people.

 

[USAFNoDak]

From the VPC website comes this:

“In its ruling, the Court has ignored our nation’s history of mass shootings, assassinations, and unparalleled gun violence. It has instead accepted an abstract academic argument with dangerous real-world results for residents of the District of Columbia. Thankfully, because the plaintiff in Heller did not challenge the District's ban on "machine guns," Washington, DC’s ban on most semiautomatic weapons, including semiauto handguns, should be unaffected.”

Emboldening is mine. So it starts. They are again trying to link "machine guns" with semiautos. I find it hard to believe that the lower court which found for Heller would not also find that the city cannot ban semiauto handguns because of the city's ban on machine guns. Would the city then try their luck again at the USSC? Maybe they are that bold. I guess we'll have to watch what transpires over the next few months and years. This is going to be a lifelong battle. As a matter of fact, our children and their children will have to fight this battle. Make sure you give your kids the ammo (figuratively and literally speaking) to fight on. Freedom isn't free. It's a constant struggle. The founders knew that. That's one reason they put the Second Amendment in place. They were giving the people who would follow them (us) the ammo we would need to fight. We just one a big battle, but we have more to go.

The woods are lovely, dark and deep, but I have promises to keep, and miles to go before I sleep. Robert Frost.

 

[STAGE 2]

It is very easy to disagree with someone, or state that they are entirely wrong, in a tactful, reasonable way. To deliberately make comments that are inflammatory on a body that must be held in high regard is counter-productive.

Why. If you use ridiculous logic or make statements such as, "the majority would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons" that displays not only an astounding incompetence regarding the 2nd amendmet, but a severe misunderstanding of the fundamentals of our government, then surely you are deserving of some flak. Especially since as a supreme court justice you are presumed to know what is taught in a basic civics class.

What you find ridiculous, others may find reasonable. Or at least plausible. Overstating your case diminishes your credibility.

The unreasonable frequently do find the ridiculous reasonable. Of that I have no doubt. However the question of whether the 2nd amendment is an individual right is simply an incontrovertable historical fact.

Scalia has been known to deliberately disregard legislative intent himself.
His rulings weakening the ADA are an obvious example.

While that may be the case, his reputation is overwhelmingly of a justice that adheres to the letter of the constitution as supported by history. A single clase or two doesn't change the many many decisions he's been correct on. After all he is human.

To state that the dissent's view here is obviously unconstitutional reduces an awful lot of very persuasive argument on both sides to something unrealistically simplistic. If it is so obvious, why did the decision take 100+ pages?

The length of something is irrelevant. Plenty of people can wax incorrect for hours on end. This doesn't make them right. The same applies here. Both history and logic make it overwhelmingly clear that the 2nd amendment is an individual right. To believe otherwise would be to believe that when the framers used the phrase "the people" in the first amendment, they were talking about individuals, but when they used "the people" in the 2nd amendment, they were only talking collectively. It means that you need to believe that while every other amendment is a restriction on government, the 2nd (as some have suggested) was a codification of the governments right to have guns.

Finally, you have to believe that the guys who wrote the constitution, who are on record with statements such as, "The said constitution shall never be construed to authorize Congress to prevent the people of the United States who are peaceable citizens from keeping their own arms", or ""No Free man shall ever be debarred the use of arms" or "A free people ought not only to be armed", didn't really mean that just as the the 2nd doesn't mean what it says.

I know it is uncomfortable to face, but there are parts of the constitution that were racist.

Sure it was, but that doesn't have anything to do with the 2nd amendment.

The founders were not the perfect, all knowing men some of us would like them to be.

No man is perfect. Not you or I or the framers. However they were brilliant men, and they understood the importance of arms. Thats really all that matters.

 

[KyJim]

A couple of observations about points of discussion here from someone whose job is to read a great many Supreme Court opinions.

First, practically all the justices will sometimes be dismissive of the opinions of the other justices who disagree. Justice Scalia, however, does do this with a bit more flair than most.

Second, Justice Scalia is known both as a strict constructionist and a textualist. A textualist simply looks at the text of the statute and gives it the plain meaning of it's words. The first part of Heller is an excellent example of this as it goes into excruciating, but necessary, analysis of the exact wording of the Second Amendment. A strict constructionist tends to limit the role of judicial interpretation of the statute and issues. The line between the two approaches is sometimes fuzzy.

Scalia deviates from his textualist approach when discussing the history of the right to keep and bear arms before the adoption of the Constitution and how the founding fathers understood this right. This is more in line with those who prefer an originalist approach; i.e., look at the original intent of the bill or statute. A textualist does not typically do this.

Scalia also deviates from his prior approach in interpreting the Constitution by saying the right to keep and bear arms includes those arms in common useage at the current time. For example, in discussing the Constitution's prohibition against cruel and unusual punishment, Justice Scalia has stated the clause would not bar the use of stocks, pillories and similar outdated punishments because they were not considered cruel and unusual when the Constitution was adopted.

I am extremely happy the Court affirmed the right for an individual to own a handgun in their home for defense. I generally like Scalia's approach in statutory interpretation. However, we should recognize that he perhaps deviated from some of his own philosophies of judicial interpretation in order to get it right.


Third, the ruling was limited to exactly the precise issue before the Court and went no further because it did not have to do so. This is consistent with a conservative approach to judicial decision making.

And yes, I have read the opinion.

 

[applesanity]

Stage 2 beat me to it. But to add anyway,

Scalia has been known to deliberately disregard legislative intent himself.

Tu quoque

If it is so obvious, why did the decision take 100+ pages?

Proof by assertion?

It may seem that Scalia throws ad homs towards Justices Stevens and Breyer. I see it more like, "X is true because of evidence A, B, C, D, E, F, G, H, and I. Stevens thinks X is false in spite of evidence A, B, C, D, E, F, G, H, and I. Did I forget to mention evidence J, K, and L? Becaue J, K, and L support the validity of X as well. Stevens is wrong. I heard through the grapevine that he wets the bed at night. Also, he's freaking moron. It is so ordered. Signed, Justice Scalia."

At any rate, attacking Scalia doesn't make Scalia's ruling wrong.

 

[Musketeer]

I generally like Scalia's approach in statutory interpretation. However, we should recognize that he perhaps deviated from some of his own philosophies of judicial interpretation in order to get it right.

His working around Miller was particularly deft. Miller stands because the weapon was deemed not to be in common usage or suitable for militia usage... at the time. Of course the militia can change. Scalia does not disregard precedent so as distasteful as it seemed he had to incorporate Miller. He did so in a way that clearly left open assaults on the 86 ban of new automatic weapons. He said to paraphrase "Fine, Miller stands on the grounds that the weapon was neither in common usage, suitable for lawful usage and suitable for militia usage. By default weapons which ARE suitable for militia usage are allowed! By the law, self defense is a lawful purpose!"

 

[brickeyee]

Miller stands because the weapon was deemed not to be in common usage or suitable for militia usage...

That is not exactly what Miller said.
It said no evidence was before the court, since miller never appeared.

UNITED STATES v. MILLER, 307 U.S. 174 (1939)
307 U.S. 174
UNITED STATES v. MILLER et al.
No. 696.

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

[emphasis added]

 

[USAFNoDak]

His working around Miller was particularly deft. Miller stands because the weapon was deemed not to be in common usage or suitable for militia usage... at the time.

In US vs. Miller, the USSC ruled that the court was NOT AWARE that a sawed off shotgun was part of any ordinary military equipment or how it could be used to contribute to the efficiency of the militia. Absent any evidence to demonstrate how a short barreled shotgun was useful for military or militia duties, they COULDN'T say whether the Second amendment protected the possession of such a weapon, (or something to that effect). The USSC sent the case back down to the lower court for an evidentiary hearing to see if there was any evidence of short barreled shotguns being used for military use or how they could be used to contribute to the efficiency of the militia. Since neither defendent bothered to show up, no evidence was presented at the lower court hearing. The feds sure weren't going to produce evidence of trench guns being used in WW1. That would have ruined their case for them.

Notice that the USSC in US vs. Miller did NOT rule definitively that a short barreled shotgun was not protected by the 2nd A. The ruled that they WEREN'T AWARE of how a short barreled shotgun could be used for military or militia purposes. They weren't aware of any use by the military or the militia of short barreled shotguns. They wanted to see some evidence that would show how a short barreled shotgun could be used for militia duties. Otherwise, they were not able to say that the Second Amendment protected the possession of such items. They didn't say that the Second Amendment DOESN'T protect such an item.

 

[Musketeer]

Notice that the USSC in US vs. Miller did NOT rule definitively that a short barreled shotgun was not protected by the 2nd A. The ruled that they WEREN'T AWARE of how a short barreled shotgun could be used for military or militia purposes.

You are correct. I should have been more specific in how Miller was woven into this decision without upsetting precedent.

 

[Socrates]

I think the exasperation, and frustration, when people in such positions of power don't know history is really frustrating.

The federal government didn't have anyway to fund George Washington's troops, and, we almost lost the war, if not for the French:barf:. Where did the Congress intend the weapons to come from? The people of the United States, many who used their firearms daily for food, etc. Firearms were tools for survival, and, still are, to a much lesser extent in certain areas today.

I thank God that the right is affirmed, finally. Now, it will be a HUGE task to take that right away, as many will try and do...

 

[Playboypenguin]

After paying $40 for a box of Winchester 115gr HP Silvertips today, my biggest fear is that since it is getting to be almost impossible to legally deny a law abiding citizen a firearm that ammunition will now come under even stronger attack.