SCOTUS to rule on 2nd Amendment

I'm Cleo! said:
sonorakitch,

I just don't think a handgun ban, except in cities, was ever going to happen. As part of the "large element of this country" that would support such a ban, it's not even on my radar. You guys won the gun issue a few decades ago. Good work. As JollyRoger has said countless times, outright bans are now unconstitutional (possibly only by Congress), but there's still going to be a lot of infringing going on.

Cleo
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Aside from incorporation (which while they didn't rule on it, Scalia did do a pretty good job of taking 'state' away from the militia concept so there's very little justification any court can make to deny incorporation now IMHO), I think there's two very important bits written into the decision. One, 'bear arms' is defined as 'walking around prepared for confrontation (including defensively)'. That sounds like "open carry" to me. Two, "not arbitrary or capricious" is the standard for licensing. That sounds like "shall issue" to me. And while lots of places (such as New Hampshire) already have that pretty much set in stone, lots of other places (such as Chicago, NYC, San Francisco, Detroit, Philadelphia, New Jersey, and Maryland) are due for a sea change in their approach to armed citizens.

I'm not particularly happy with Scalia's insertion of infringements-that-aren't-really-infringements either - and in particular I think his "in common use" standard is extremely vulnerable to government abuse - but assuming incorporation, this is a fairly big deal by virtue of its impact on the most anti-gun chunks of the country.
 
IglooDude,

Well, with respect to the "arbitrary or capricious" stuff, it's a legal term of art that defines the review appropriate for administrative actions, which may very well be the most deferential standard in American law. "Not arbitrary or capricious" is basically anything. The licensing law stands as long as the District's not picking numbers out of a hat or settling old scores. If the process bears any relevance to policy issues, it's going to be found not "arbitrary or capricious."

I think the "bear arms" stuff was part of his effort to tie the Second Amendment into a pre-Constitutional common law right to self-defense, contra Stevens's point about the militia, rather than an endorsement of open carry. I don't see it going that far, really.

But JollyRoger knows a lot more about the Second Amendment and gun laws than I do. Maybe he could shed some light on it.

Cleo
 
Scalia would need Kennedy's vote for open carry, which I don't think he would get. I think individual right with restrictions is as far the Court is going to go. Even incorporation could be shakey, although maybe we get another case on Chicago's law that gives us incorporation and lays down some sort of standard to attack infringements that has more teeth that yesterday's opinion. "Not arbitrary and capricious" = "almost anything goes" as far as letting governing bodies infringe.

On a related note, the first thing that many lawyers are doing in response to this case is trying to get convictions tossed or sentences reduced where part of the sentence (or the sentence's enhancement) involved gun charges. How is that going to play with moderates and tough-on-crime types if "criminals" start getting released as a result of Heller?
 
onejayhawk said:
Compared to what he would be doing in a dissenting opinion? Or compared to what J Kennedy, or Breyer, would be doing in a majority opinion?

J
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Compared to what he could have written if he was willing to accept a Kennedy concurrence. A Kennedy concurrence wouldn't have really narrowed the Scalia majority opinion we have today, but at least you would have had 4 on the record for something more aggressively anti-infringement.
 
So, why didn't their judgement interpret the 2nd Amendment sufficiently so that we'd know how the machinegun laws would be affected? I mean, it's so rare that these issues are dealt with at that level, you'd think they'd want to give some guidance.
 
A machine gun is a firearm. It is clear there should be no restriction on their ownership. Frankly, without showing an incredible specific reason why any particular person should not, on a case by case evalutation own one, anyone should be able to go out and get their own RPGs, Mk 19s, you name it.
 
Civilian ownership of explosives ordinance ought to remain illegal. I cannot imagine the kind of insanity lurking in one's mind to think that it should be otherwise. Most fully-automatic weapons ought to be legal, with strict regulation.
 
Some thoughts on the opinion from constitutional law scholars:

Mark Tushnet, William Nelson Cromwell Professor of Law at Harvard Law School:


I want to make two points about Heller. The first elaborates on a point Sandy Levinson made. Both Justice Scalia’s opinion for the Court and Justice Stevens’s dissent devote a great deal of attention to the original understanding – or, as it turns out, understandings – of the Second Amendment’s terms. Both opinions look as if they are interested in history. Both, though, demonstrate why lawyers and judges shouldn’t play historian. In their capacity as judges, the justices have to award a decision to one or the other side. They share the natural human tendency to exaggerate the case that can be made for the side they ultimately favor. So, both Justice Scalia and Justice Stevens assert – laughably to a real historian – that the Second Amendment had only one meaning at the framing, and that that meaning was for all practical purposes universally shared. Even more, Justice Scalia asserts that that meaning was preserved unchanged from 1791 through the late nineteenth century.

Real historians are comfortable with complexity and with the co-existence at any one time of contradictory understandings of constitutional concepts, and the real lesson of the dueling opinions in the Heller case is that there simply wasn’t a single, universally shared understanding of the Second Amendment’s meaning in 1791: There were at least two widely shared meanings, and what we deserve, but didn’t get, is some explanation of why one rather than the other should guide our interpretation today. And the idea that constitutional understandings are so stable that what people in the 1860s thought the Second Amendment meant can help us figure out what (other) people thought seventy years earlier is belied by something we really do know – that within a decade after the adoption of the First Amendment the general understanding of what it meant changed dramatically (roughly, but adequate for present purposes, from a ban only on prior restraints on publication with no implications for punishment after the event, to a ban on some substantive regulations such as prohibitions of criticism of the government). If the understanding of the First Amendment’s meaning changed so rapidly, why not the same for the Second, over an even longer period?
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and

Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School:

Despite its long and occasionally dreary originalist exegesis, the Heller majority is not really defending the values of 1791. It is enforcing the values of 2008. This is no accident. Indeed, the result in Heller would have been impossible without the success of the conservative movement and the work of the NRA and other social movement actors who, over a period of about 35 years, succeeded in changing Americans' minds about the meaning of the Second Amendment, and made what were previously off-the-wall arguments about the Constitution socially and politically respectable to political elites. This is living constitutionalism in action.

Like Lawrence v. Texas, Heller is another example of how the Supreme Court exercises judicial review in response to successful social and political mobilizations, regardless of what individual Justices understand themselves to be doing. The only difference is that in Heller, it is conservatives who have successfully changed public opinion, a change that has now become reflected in Supreme Court opinions.

Welcome to the living Constitution, Justice Scalia. We couldn't have done it without you.
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From Balkinization, where there's lots of scholarly discussion of the opinion.

Cleo
 
VRWCAgent said:
A machine gun is a firearm. It is clear there should be no restriction on their ownership. Frankly, without showing an incredible specific reason why any particular person should not, on a case by case evalutation own one, anyone should be able to go out and get their own RPGs, Mk 19s, you name it.
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& Iran should have nukes, yes?
 
Welcome to the living Constitution, Justice Scalia. We couldn't have done it without you.
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38.gif
 
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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.
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I find this sentence in the majority finding quite strange.

The prefatory 'although we did not undertake..", combined with the operative 'nothing in our opinion..' seems to me to intrinsically imply support for the longstanding prohibitions.

Yet if they have not considered these aspects, then surely their opinion should not be expressed so that it can be interpreted to support those longstanding prohibitions.

A statement on what they have not considered should be worded more neutral. e.g.

We express no opinion on the 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.

i.e. neither casting doubt nor implicitly re-affirming those longstanding prohibitions.
 
Yesterday, I had a sudden inspiration.

Here's why all of you (especially the liberals in this thread) should be all FOR private gun ownership:

Ask yourself this: do you REALLY want George Bush Jr. to be the only guy in the country with the muscle? :lol:

Open and shut BasketCase.
 
John HSOG said:
Civilian ownership of explosives ordinance ought to remain illegal. I cannot imagine the kind of insanity lurking in one's mind to think that it should be otherwise. Most fully-automatic weapons ought to be legal, with strict regulation.
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Ownership of "destructive devices" (explosives, mortars, flame throwers ...ect.) isn't illegal. It is heavily regulated.
 
Merkinball said:
This is the biggest pile of f--king garbage that I have read yet.

How do these people find work?

It just goes to show you who's really running academia in this country. Disgusting.
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Yes, the leading law scholars in the country shouldn't have a job. Okay Merk, okay.
 
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