Heller...Did we really win?

C

cold dead hands

Moderator
In light of the ruling that guns are an individual right, but "reasonable" restrictions still apply I wonder if we really won.

Who gets to decide what is reasonable?

I am very egalitarian about guns and think only violent or mentally ill people shouldn't have them (and if they are that dangerous then they need to be removed from society). Everyone else is fair game to me. And you may walk the street without a permit. Open or concealed. Your choice. I consider that to be reasonable.

On the other end of the spectrum there are those who think that you should jump through hoops and wade through knee deep red tape in order to own a gun, and you can forget about any kind of carry permit. Open carry only if you are in the woods hunting. To them this is reasonable.

And...seeing as how it was far from being a unanimous decision (one vote in our favor to make it 5 to 4...ouch...talk about skin of the teeth) I wonder if this is permanent or a slight reprieve until more "liberal" judges can strip us of our inherent rights and completely ignore precedent as well as the 2A?

How far will states and cities go to find other ways to create de facto bans?

Did the ruling also cover ammunition? A gun with out ammo is a metal stick or a paper weight.

Did we really win?

I usually see a glass as both half empty as well as full, but not this time. I believe that we aren't any closer to victory as gun owners. We were given a pithy ruling that would assuage us in our cries for an honest upholding of the 2A. We still do not have what the Founding Fathers wanted us to have and SCOTUS knows it.

We are still just as infringed as before the ruling.

Did we really win?

I say no.

What say you?
 
It's a night vs. day win. We went from no rights to a new weapon to pummel the anti's in every court and legislature in the land. It's huge.
 
This was the first brick in the foundation. More will come.

If the Scalia's opinion had given us everything we wanted for Christmas including the pony and the Red Ryder BB gun then it would have been a dissenting opinion written for the minority 4 (sane) justices. Kennedy had to come along for the ride remember??

At least we got the Red Ryder BB gun. Now we can work on the pony.
 
As I read it, the decision took away nothing and left the future open as to what "reasonable" means. However, before this decision, there was no clear ruling stating that 2A applies to you and me, and now there is. It's great to have a wish list, but Heller is a critical weapon in the hands of pro gunners as a tool to start getting those wishes granted. Prices will always go up, but at this point they cannot take our rights away.
 
Who gets to decide what is reasonable?
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I think that the original plan was for Virginians to decide what is reasonable in Virginia, and for other people to decide what is reasonable to them in their State. I think that is a vision of the "free States" such as the Second Amendment is intended to secure. But some people seem to feel that if we let the feds decide what is reasonable for us all then we will be better off. I think they are seriously mistaken.
 
We won a battle, but we certainly didn't win the war. Gun control will still be an issue and "reasonable" controls will certainly be in place.

"Yes, you have a right own a handgun, but we have a right to make you buy serialized ammo. We have a right to limit you to one purchase of one gun a month. We have a right to limit your ammo purchase to 50 rounds a month. We have a right to ban all military calibers. We have a right to register your arms. We have a right to ban military style sniper rifles"

This is just one battle out of many.
 
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To paraphrase someone else from another time:

The Heller decision was not the end. It was not even the beginning of the end. But it was, perhaps, the end of the beginning.

We have a lot of work ahead of us, but it was a GREAT first step.

pax
 
the decision took away nothing
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And it really didn't add anything as I see it.

Even now, with the ruling in place you still will be arrested for open carry in ''urban'' area of Arkansas and concealed carry without a permit gets you a prohibited weapons charge.

It was always legal to have them in the home. Nothing changed. I suspect it is that way for 95% of everyone else.

Illinois will still required a FOID, many states will stay "may issue" for permits, etc...

All the SCOTUS did was say that we are individually gauranteed the right to arms. No state ever said otherwise (even though some municipalities tried to) and no one individual was barred from owning a weapon via an outright ban at the state level. All that we have is de facto bans and the ruling has upheld them by allowing a very broad interpretation of ''reasonable'' gun control.

I still say we won nothing.

For example, let's assume that now D.C. has to reopen it's registration and let new guns in, but they make it damn near impossible for anyone to open a gunshop in city limits by declaring no gunstores anywhere within 20 miles of a Federal building and no guns are allowed from out of state (seing as D.C. isn't a state or in a state that one would be real easy for them). De facto ban is still upheld by ''resonable'' (as determined for the area, per the SCOTUS ruling) restrictions.

Too many people made too much out of Heller. It was supposed to be roar and turned out to be a squeak.
 
You make a valid point cold dead hands, for all the lengths Scalia went to, to define words and terms, who defines what 'reasonable' is. Speaking of 'is' remember the legal wrangling over what the meaning of 'is' is.

What 'is' black and brown and looks good on a lawyer?
rottweiler.jpg
 
We certainly won for now. With liberals I never fail to be amazed by the mental acrobatics they can use to ignore something that is clearly true. Here is the scenario I fear:

http://www.slate.com/blogs/blogs/convictions/default.aspx

Revolutionary ideologies always look good until they prevail; then their latent seeds of destruction sprout and conflagrate. Such is the case with originalism, and Heller provides an opportunity to see this process in action. To see why, imagine that, to the surprise of everyone, Clarence Thomas retires from the court next year and President Obama replaces him with a moderately liberal lawyer whom I will call X. In X's first term, another Second Amendment case reaches the Supreme Court. X reads the majority and dissenting opinions of Heller and decides that Justice Stevens' dissent makes the better originalist case. He writes a new majority opinion that adopts Stevens' dissent and overturns Heller.

What is the Heller-supporting originalist to say about this behavior? He can argue until blue in his face that Scalia was right and Stevens was wrong, but Stevens' account was plausible enough to obtain the support of three other justices and various knowledgeable commentators. What he can't plausibly argue is that X should have respected the Heller precedent. After all, if originalism means anything, it must be that precedents should be given no, or little, weight.
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[1] Courts decide cases. They don't make policy or issue advice. A court decides a particular case before it.

Heller was about a particular resident of the District of Columbia who wanted to keep a gun at home for self defense. He was prevented from doing so by a law of the District of Columbia, and the Court that law to be invalid. That was the central substantive issue raised by the case, and it was the issue decided.

In doing so, however, the Court ruled, "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,..." We have never before had such a clear and direct statement from the Supreme Court of the application of the Second Amendment. This puts to rest the arguments that the Second Amendment is somehow related to a state’s maintenance of a militia. This threshold interpretation will need to be applied in future litigation involving the Second Amendment. It will be for such future litigation to address issues associated with possession of guns for self defense, in various places and under various circumstances, outside the home.

[2] But it is a well settled principle of Constitutional law, as reflected in decisions of federal courts, including the Supreme Court, that government may regulate Constitutionally protected rights, subject to certain constraints.

Thus government may regulate a Constitutionally protected right as necessary to further a compelling state interest as long as such regulation is as narrow it may possibly be and still serve that interest. Any such regulation must not totally obviate the Constitutional right. Furthermore, any such regulation must be evenly applied and not subject to the discretion of governmental authority. Application of these principles may be understood, I think, in relation to the First Amendment.

While the First Amendment protects freedom of speech and, we know there has been a history of certain regulation of speech and assembly. A few examples are:

[1] Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech. Among other things, such laws serve compelling state interests related to promoting honest business and helping to preserve the integrity of commercial transactions. They tend to be only as broad as necessary to serve that function.

[2] Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be Constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official.

[3] So it’s likely that future litigation with focus on whether a particular regulation of possession or use of firearms will actually serve a compelling state interest, or whether such regulation is broader than necessary to serve that interest. Much current regulation will most probably be found to pass Constitutional muster, but others will may well not. There will be many years of jolly litigation necessary to sort things out. But all such future cases must start with the proposition that the Second Amendment protects an individual right to have a gun for traditionally lawful purposes.

[4] This is a great decision for gun owners, but it’s not the end of wrangling over the meaning or application of the Second Amendment.
 
Courts decide cases. They don't make policy
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I think it might be more correct to say that courts don't make laws. (They do negate them.) But, is inarguable that they make, or change, policy by virtue of their decisions. Brown v Board of Education, Roe v Wade are classic examples of policy decisions made by courts.
 
No, even with Brown and Roe, the Court merely decided the cases. There has been considerable litigation in both areas since those decisions. Of course, the holdings in Brown and Roe influenced the results in subsequent litigation -- just as the holdings in Heller will affect future litigation related to the RKBA. That is the application of the doctrine of stare decisis. The holdings of prior cases can thus become the rules on the bases of which future cases are decided.
 
From the Patriot Post...

“It is not hyperbole to describe [the Supreme Court’s] decision in [District of Columbia v.] Heller as the most significant opinion of this century, and likely, of the last two generations. Two particular thoughts immediately come to mind. First, the extent to which [the] decision effectively opens the door for future litigation regarding the Second Amendment to further clarify the extent of the now confirmed, but long understood, individual right to keep and bear arms. Second, this is an election year. This decision, closely divided as it is, will likely provide a rallying cry for the millions of the Americans who recognize that their Second Amendment rights came down to a single vote. In reading Justice Scalia’s opinion, there is an overwhelming theme that to interpret the Second Amendment as not protecting an individual right would gut the amendment of meaning and defy logic. It is, after all, the Second Amendment, not the two hundredth. This is not an obscure line buried among thousands of pages of text. It is inconceivable that the framers would have given it the priority they did, placing it ahead of so many other critical rights, if they only meant it to apply to militias as the dissenting justices suggest.” —David Schenck
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Regarding "stare decisis", it has been 5 years since the Court overruled
its 1986 decision Bowers vs. Hardwick-homosexuality not a right-in its 2003
decision Lawrence vs. Texas-it is. A change in personnel, one Justice-O'Connor- changing her vote, and a recent decision is overruled. Heller will be a long lasting victory for us IF, like the Civil Rights Movement on the 1950s and 60s we see it as the Turn of the Tide-the Midway, El Alamein or Stalingrad of the war over the 2nd Amendment and the RKBA-rather than as
THE victory. As students of military history know, real generals know how to exploit their victories. As shotgunners say "Don't forget to follow through!"
 
While we gained little from it, at least in regards of what was given up, this is likely to be the most important Court ruling on gun ownership EVER. Why? Because the Supreme Court's majority ruled that gun ownership is an INDIVIDUAL RIGHT not affected by membership in a militia. In other words, the preemptive clause, "A well regulated militia being necessary to the security of a free state..." is irrelevant to whether or not a person has a right to keep and bear arms. It may seem rather obvious to us, but it just went against the antis biggest argument against the 2a. It's only a small battle in a constant, ongoing war, but it's a battle that we absolutely had to win in order to be able to eventually win the war.
 
Who gets to decide what is reasonable?
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Is a much better question than "Who are the militia?" I was really, really sick of that militia business, and I'm glad it's over.

Held: 1. 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. Pp. 2–53.

And don't forget the Other Heller Decision (Parker, from the lower court), which has now been AFFIRMED.

Even what Scalia had to say about machine guns wasn't so bad...

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 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.
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Scalia was talking about modern military technological developments, but that is not the only modern development which has screwed up the fit between the prefatory clause and the main clause. Another such modern development would be the post-86 machine gun ban.

AR-15's are popular, and the prices of versions with a happy switch attest to the potential popularity of full auto versions of the rifle, if they were available in gun stores alongside the semi autos. Part of Scalia's justification for protecting handguns was that they were overwhelmingly chosen by Americans.
 
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SIGSHR said:
...it has been 5 years since the Court overruledits 1986 decision Bowers vs. Hardwick-homosexuality not a right-in its 2003decision Lawrence vs. Texas-it is. A change in personnel, one Justice-O'Connor- changing her vote, and a recent decision is overruled....
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That is an excellent point. The Supreme Court can overrule itself (but a lower court can not). That is further reason to be concerned about who the next President is, since he will no doubt be appointing at least one, if not more, new Supreme Court Justices. So we might want to think about what kind of people Obama, were he elected to the Presidency, would be most likely to appoint.
 
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