SCOTUS to rule on 2nd Amendment

[JollyRoger]

Do you think this will cover the issue for a generation or three? As I noted above, i think that was Scalia's intent.

I think it takes care of the individual vs. collective debate. To me, he basically sent the signal that the more oppressive bans would be struck down and how incorporation would be decided (although the manner in which he footnoted it might indicate that he is uncertain whether 5 votes are there yet on incorporation). I think he also sent a fairly strong signal that most infringing laws already in place (assault weapons bans, licensing statutes, felon bans) would likely be upheld. Whether the Court goes about resolving circuit splits on issues raised in the dicta is unclear, but I foresee the Court stearing clear of the 2nd for the most part in the next generation or three.

To take issue with the dissents, I think much the contrary. Almost to a keystroke, these are arguments to ammend the Constitution, rather than interpret it. If I were a debate coach, I would be abrading them for getting so far off topic that their points could not be considered germane.

J

Well, Scalia basically amended the Constitution with the majority opinion in that he seems to not take the "shall not infringe" very seriously outside the scope of the most oppressive infringements on the books. Maybe that was the price of Kennedy's vote (or at least the price to keep Kennedy from writing a controlling concurrence).

 

[JohnRM]

DC Gun Ban shut down by Supreme Court...ZING! SICK BURN!

 

[IglooDame]

I think it takes care of the individual vs. collective debate. To me, he basically sent the signal that the more oppressive bans would be struck down and how incorporation would be decided (although the manner in which he footnoted it might indicate that he is uncertain whether 5 votes are there yet on incorporation). I think he also sent a fairly strong signal that most infringing laws already in place (assault weapons bans, licensing statutes, felon bans) would likely be upheld. Whether the Court goes about resolving circuit splits on issues raised in the dicta is unclear, but I foresee the Court stearing clear of the 2nd for the most part in the next generation or three.

Yeah, incorporation is still a question mark - on the one hand, he noted the previous decisions denying incorporation, but on the other he completely detached "militia" from "state" (state in the 'one of fifty' sense). Going over the decision, there's no more reason not to apply 2A to the states than there is not to apply 1A to the states.

I've read through it and it seems to me that federally (which is to say, in national parks and DC) owning a handgun and carrying it around town "open carry" style is now "shall issue" to the extent that licenses/permits/registration is required in the first place. Successful incorporation will spread that status to all fifty states, and no doubt publicity accompanying it will make citizen "OMG he's got a gun in a holster on his hip" 911 calls and police detaining/harassment regarding it much less likely. That's going to open up a lot of eyes in DC/NYC/Chicago/LA/SanFran, when they see non-gangbanging non-police people on the subway/bus/train with pistols on their hips.

 

[Red Door]

That's going to open up a lot of eyes in DC/NYC/Chicago/LA/SanFran, when they see non-gangbanging non-police people on the subway/bus/train with pistols on their hips.

This isn't going to happen in DC, especially on the train and subway. Security is so tight here that there's no way people are going to be able to bring guns onto Subway or the train ("OMG, terrorist").

 

[onejayhawk]

Well, Scalia basically amended the Constitution with the majority opinion in that he seems to not take the "shall not infringe" very seriously outside the scope of the most oppressive infringements on the books. Maybe that was the price of Kennedy's vote (or at least the price to keep Kennedy from writing a controlling concurrence).

I think that is the case in a nutshell. Scalia was getting what he could, given the make up of the Court. You have to admire the argument, because he seems to deliberately expose the opinion to being attacked from the right, rather than the left. Or so I read it.

J

 

[onejayhawk]

This isn't going to happen in DC, especially on the train and subway. Security is so tight here that there's no way people are going to be able to bring guns onto Subway or the train ("OMG, terrorist").

Is that good or bad?

J

 

[Bigfoot3814]

This isn't going to happen in DC, especially on the train and subway. Security is so tight here that there's no way people are going to be able to bring guns onto Subway or the train ("OMG, terrorist").

Has no one heard of Bernhard Goetz?

 

[JollyRoger]

I've read through it and it seems to me that federally (which is to say, in national parks and DC) owning a handgun and carrying it around town "open carry" style is now "shall issue" to the extent that licenses/permits/registration is required in the first place.

I don't think the case permits open carry in DC. It is pretty specific on allowing Heller (assuming he's not behind on his student loan payments) to get a license to possess a weapon in his home and (impliedly) transport it it to his home. It doesn't strike down any bans on open carry beyond the home.

Successful incorporation will spread that status to all fifty states, and no doubt publicity accompanying it will make citizen "OMG he's got a gun in a holster on his hip" 911 calls and police detaining/harassment regarding it much less likely. That's going to open up a lot of eyes in DC/NYC/Chicago/LA/SanFran, when they see non-gangbanging non-police people on the subway/bus/train with pistols on their hips.

And open up quite a few eyes in flyover country when the gangbangers make a trip through their neck of the woods legally armed.

 

[JollyRoger]

I think that is the case in a nutshell. Scalia was getting what he could, given the make up of the Court. You have to admire the argument, because he seems to deliberately expose the opinion to being attacked from the right, rather than the left. Or so I read it.

J

There is a certain tactical brilliance there. The 5th Circuit buys the attacks from the right, the 9th Circuit doesn't. The Supremes don't grant cert on the circuit splits (because each side is afraid of what Kennedy would do) and part of the country has less strict gun control because of the combination of local Circuit Court action combined with Supreme Court inaction. It's probably the most that Scalia could get with certainty.

 

[IglooDame]

I don't think the case permits open carry in DC. It is pretty specific on allowing Heller (assuming he's not behind on his student loan payments) to get a license to possess a weapon in his home and (impliedly) transport it it to his home. It doesn't strike down any bans on open carry beyond the home.

It doesn't, but a followon case citing it will.

And open up quite a few eyes in flyover country when the gangbangers make a trip through their neck of the woods legally armed.

The gangbangers that haven't fallen behind on their student loan payments, anyway.

 

[JollyRoger]

Has no one heard of Bernhard Goetz?

I made a self-defense argument for him as part of a law school assigment. The toughest argument I ever slogged through as I made my initial acquaintance with the Goddess of the Theology School in the 23-hour period between when the assignment was made and when I had to give the argument. It's not fun making a legal argument on very little preparation and even less sleep.

 

[El_Machinae]

What do people predict will happen to gun violence (i.e., legal or accidental) and gun crimes (i.e., illegal) rates over the next couple of years? Specifically in DC.

 

[JollyRoger]

What do people predict will happen to gun violence (i.e., legal or accidental) and gun crimes (i.e., illegal) rates over the next couple of years? Specifically in DC.

Gun crime statutes are now unconstitutional, so gun grimes will go down to zero.

In all seriousness, until a broader ruling comes out, this won't have much of an effect. All the holding does from a practical standpoint is allow people to be licensed to have a handgun in their home.

 

[El_Machinae]

In all seriousness, until a broader ruling comes out, this won't have much of an effect. All the holding does from a practical standpoint is allow people to be licensed to have a handgun in their home.

Right, exactly. If more people are allowed to have guns in their homes, we could have:
a) a decrease in 'illegally owned firearms in the house' charges, but not much
b) an increase in accidental gun violence (if more people have guns)
c) an increase in gun violence used in 'self-defense'

Will we see an increase in gun crimes? Will we see a decrease in crimes such as break-and-enter, home invasions, and the like?

I want people to make their predictions. Too often we're arm-chair generals looking back on history and explaining things. I want to see what our various partisan views predict and how correct they are.

 

[JollyRoger]

Right, exactly. If more people are allowed to have guns in their homes, we could have:
a) a decrease in 'illegally owned firearms in the house' charges, but not much
b) an increase in accidental gun violence (if more people have guns)
c) an increase in gun violence used in 'self-defense'

Will we see an increase in gun crimes? Will we see a decrease in crimes such as break-and-enter, home invasions, and the like?

I want people to make their predictions. Too often we're arm-chair generals looking back on history and explaining things. I want to see what our various partisan views predict and how correct they are.

a) won't go down much because the type of people getting busted by these aren't the type to go out of their way to get licensed.

b) Up slightly, but I predict not much. I'm sure that the disassemble and trigger lock laws are not being widely followed.

c) Up slightly - might even get the next Bernie Goetz out of the deal

Gun crimes and break-ins will remain relatively stable.

 

[sonorakitch]

Right, exactly. If more people are allowed to have guns in their homes, we could have:
a) a decrease in 'illegally owned firearms in the house' charges, but not much
b) an increase in accidental gun violence (if more people have guns)
c) an increase in gun violence used in 'self-defense'

Will we see an increase in gun crimes? Will we see a decrease in crimes such as break-and-enter, home invasions, and the like?

I want people to make their predictions. Too often we're arm-chair generals looking back on history and explaining things. I want to see what our various partisan views predict and how correct they are.

1. I don't see much change in possession charges because in order to make such arrests, the persons home is probably being searched anyways and for reasons that would prevent him/her from owning a firearm in the first place*

*assuming the DC and Chicago and SF boys make it extra hard to qualify for the inevitable registration which will follow the legalization.

2. I also don't see any noticable increase in accidental gun discharges, primarily because I don't see a whole flock of people running out to buy guns after this ban sunsets. Really.

3. Might be a slight increase in this, which will probably lead to a slight decrease in home invasions. That is the way it should work anyways...

~Chris

 

[sonorakitch]

sonorakitch,



That's a good idea, but it's definitely not what Scalia did. A lot of people would call that "judicial activism."

I think Stevens thinks "the people" in the Second Amendment refers to the Militia Clause because otherwise the Militia Clause has no legally-operative meaning. And it's a fundamental principle of statutory and constitutional interpretation that you should give meaning to everything the legislature / Framers wrote, if you can. He cited Marbury v. Madison for that, if I recall correctly. Personally, I'm a little uncomfortable with writing off the Militia Clause as "well, they were just explaining what they were going to do later on," when such a thing doesn't exist anywhere else in the document. Maybe they were -- Scalia certainly seems to think so -- but if they weren't, Stevens's interpretation makes sense.

Cleo

I thought Scalia's demonstration of the militia clause not necessarily meaning a connection to a state-sanctioned militia to be well executed and fairly thorough actually.

The Second Amendment is naturally divided into two
parts: its prefatory clause and its operative clause. The
former does not limit the latter grammatically, but rather
announces a purpose. The Amendment could be rephrased,
“Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep
and bear Arms shall not be infringed..//..a prefatory clause does not limit or
expand the scope of the operative clause..//..Nowhere else in the
Constitution does a “right” attributed to “the people” refer
to anything other than an individual right.6..//..What is more, in all six other provisions of the Constitution
that mention “the people,” the term unambiguously
refers to all members of the political community, not an
unspecified subset..//..Reading the Second Amendment as
protecting only the right to “keep and bear Arms” in an
organized militia therefore fits poorly with the operative
clause’s description of the holder of that right as “the
people..//..There is nothing to this.
State constitutions of the founding period routinely
grouped multiple (related) guarantees under a singular
“right,” and the First Amendment protects the “right
[singular] of the people peaceably to assemble, and to
petition the Government for a redress of grievances..//..the militia is assumed by
Article I already to be in existence. Congress is given the
power to “provide for calling forth the militia,” §8, cl. 15;
and the power not to create, but to “organiz[e]” it—and not
to organize “a” militia, which is what one would expect if
the militia were to be a federal creation, but to organize
“the” militia, connoting a body already in existence,”

I find this logic to be undenying. Conversely, Stevens appeared to favor the wording of the prefatory clause and does cite the minority opinion on this well. So at that point, we are at a crossroads in identifying the true intent of the framers (which will never really succeed), and thus, Scalia paints the portrait emphasizing the individual right over the collective.

It might be called "judicial activism" in some circles, but that is how the Constitution has been interpreted for most of its existence.

The quizzical moment in all this is trying to really justify what a "militia" is. Whether or not it is state-sanctioned or merely refering to all people with the capabilities of defending themselves. Reflecting on the period in which the document was written, it is quite an easy task to recognize that on this, Scalia has the overwhelming edge. I think he illustrates it nicely.

Not to say Stevens' opinion is worthless; it is a very convincing one. Just not enough for me, or apparently the majority of the court.

~Chris

 

[Merkinball]

I don't know what's scarier, the fact that four judges believe policy supersedes the consitution, the fact that there are people defending those positions on this board, or the fact that one judge appointed by Obama will essentially take away the right for individuals to own guns.

 

[Red Door]

Is that good or bad?

J

Well, I wouldn't feel comfortable on Metro with the guy across from me holding a handgun, especially in DC.

Has no one heard of Bernhard Goetz?

You know there's a lot of security on DC metro now?

 

[JollyRoger]

I don't know what's scarier, the fact that four judges believe policy supersedes the consitution, the fact that there are people defending those positions on this board, or the fact that one judge appointed by Obama will essentially take away the right for individuals to own guns.

Obama has come out in support of the opinion. Perhaps it is because, based on the watered-down majority opinion, it appears 9 Justices believe policy supercedes the Constitution.