SCOTUSblog - HELLER - Be there or Be square!

[ZetaNine]

Wolverines!

[bsdaddict]

I'm wondering, is there one person posting on this board who is "anti-gun"?

there were a few, but they don't seem to be here today...  I think it's safe to say that the 2nd is one area where the vast majority of AHers are in agreement...

[Charon]

Breyer is such a hack.

I scanned his dissent and about 2/3 had nothing to do with the Constitutional issues and was all in support of his personal beliefs on the need for gun control. I don't recall electing Breyer to legislate from the bench on issues beyond the scope of Constitutionality. The other dissenters seemed disappointed that the court did not set a lax level of scrutiny that would allow the right to be irrelevant in practice, no doubt supporting their beliefs in the goodness of gun control. But, they at least performed the aggressive mental gymnastics required to keep their dissent focused on the Constitution.

[edit: However, a variety of restrictions were supported in the opinion, including limits on automatic weapons, likely.]

Charon

[Captain Virgil Hilts]

The United States Stays the United States!!


I am pretty happy about this, I wonder if it will help kill some of Californias stupid laws


Does this take the worry about this election away a bit for you guys as well?

No, and no. The courts can still be stacked by the next President. Even if 4 of the 5 do not retire, 1 may, and a couple of the 4 may in the next 4-8 years, it's almost certain that 1 or 2 will in the next 4 years.

[AKIron]

5-4 ruling.

The chowderheads remain chowderheads. I thought given the oral arguments it would be 6-3 at worst.

This is a time where, despite all his truckups, I am glad Bush was in the seat when it came time to appoint two new justices.

Wow! In spite of everything it can be said that Bush saved the constitution, for now. Hooray!

[avionix]

What amazes me, is the mindset of judges.  Their job is not to interpret the law with their personal opinion or morals.  Their job is to make sure that the law is applied fairly and in accordance with the Constitution putting their personal feelings aside.  The sad thing, is that the majority of people these days believe that personal opinion and morals has more to do with the interpretation of law than the rule of law itself.  The downfall of this nation will be from activist judges on the left like Souter and Ginsburg denying us the freedoms set down in the Constitution.   

[Guppy35]

Wow! In spite of everything it can be said that Bush saved the constitution, for now. Hooray!

I'd be hard pressed to agree with that.  Some of the recent decisions regarding Gitmo detainees would suggest some of his own appointees are concerned with his abuse of the constitution.

I'm so sick and tired of everything being defined by 'liberal' or "conservative".  Apparently I'm a sucker in believing these are honorable people who recognize the importance of their role in this country and that their responsibility is to the law and the constitution.

I'd like to believe that regardless of who appointed these judges that in the end, they do the job to the best of their ability in interpreting the law.  That because some dissented means they're 'chowderheads' says more about a lack of respect to the court as a whole then anything else.

[Captain Virgil Hilts]

Well, IF the dissenting opinions had been based in Constitutional law, I'd at least give grudging respect. But for the most part, they were NOT.

And I'm NOT surprised Kennedy was the swing vote in a decision to give Constitutional rights to enemy combatants that were never citizens of the nation the Constitution serves. NEVER before has an enemy captured on a battlefield been granted Constitutional rights, and for the life of me, I cannot see why they should be.

I DO NOT agree with Bush on MANY issues. Bush has merely been the lesser of two evils for most of his time in office. However, his administration has been just as correct in saying that enemy combatants are not entitled to Constitutional rights nor access to and trial in regular criminal courts as FDR was when his administration tried and executed German spies.

[AKIron]

I'd be hard pressed to agree with that.  Some of the recent decisions regarding Gitmo detainees would suggest some of his own appointees are concerned with his abuse of the constitution.

I'm so sick and tired of everything being defined by 'liberal' or "conservative".  Apparently I'm a sucker in believing these are honorable people who recognize the importance of their role in this country and that their responsibility is to the law and the constitution.

I'd like to believe that regardless of who appointed these judges that in the end, they do the job to the best of their ability in interpreting the law.  That because some dissented means they're 'chowderheads' says more about a lack of respect to the court as a whole then anything else.

I'm pretty confident that if Al Gore or John Kerry had been elected we would have a different ruling today or no ruling at all. IMO, without the second, the rest of the constitution would be little more than the paper it's written on. The second will allow us to defend the rest of the constitution from all enemies, foreign and domestic. 

[Toad]

Well, IF the dissenting opinions had been based in Constitutional law, I'd at least give grudging respect. But for the most part, they were NOT.

And that is why I characterized the dissenters as chowderheads, Dan.

There are people that don't believe ANY opinion can be characterized as "activist". However, had this failed to be confirmed as an individual right it couldn't be any more clear that they were amending the Constitution from the bench.

I'll admit that overall, I do not respect the 4 dissenters and have not for quite some time.

[Charon]

A legal type with the handle loneviking over on THR posted the following analysis. Rather than try to reword It I'll post his response.

I read the opinion and there are several, interesting points to this decision:

1. There is an individual right, not a collective right. And, this right is not formed by the U.S. Constitution, but is a recognition of a pre-existing right! Justice Scalia takes great pains to go back into English history to show this pre-existing right and how this English right was incorporated into the American constitution.

2. That the right is seperate from militia service. In fact, Scalia points out that the 'militia' referred to was the entire body of citizens, from which Congress could pull, equip and train. This seperation of an individual right that exists apart from militia service is a huge win for those of us who believe in gun rights.

3. The level of scrutiny is 'NONE'! The 2nd Amendment cannot be declared extinct through the use of a level of review. The founders/framers did the balancing act when they drafted the amendment. The amendment right is always going to exist and is ITSELF the standard against which a decision must be made. Courts must rely on the balancing act of the framers and not on some current standard.

4. I find it interesting how, as he has done in the past, Justice Scalia repeatedly punctures the dissenting justices arguments using their own words in past decisions. He really tears up Justice Ginsburgs arguments in the dissenting opinion by pointing to past opinions in which she held to a different defintion for 'to keep and bear arms'. By doing this, Scalia has laid down a gauntlet for any future court that wants to rely on one of the two dissenting opinions to show the logic or consistency of those arguments.

5. Finally, Scalia really does a good job of showing how consistent 2nd amendment cases were up until just recently. The decision shows that stare decisis was used to build upon the original intent of the framers, and that there was a coherent body of case law that had the understanding of an individual right. This signals the understanding that the court is not going off on a new direction, but is correcting the abuses of the last forty or fifty years. Again, it's a challenge to any future court that wants to rely on the dissents to prove this viewpoint wrong.

This is a huge win, and it will now lead to lots of new litigation but the difference is that now the litigation will be carried out with the proviso that an individual right is enshrined (protected, but not created) in the constitution, and it is seperate from military service. You cannot get rid of the right by getting rid of the constitution, which has big implications for situations such as the gun grabs of hurricane Katrina.

Pay attention to these two sentences: 'But the enshrinement of certain constitutional rights necessarily takes certain policy choices off the table'. And 'these include the absolute prohibition of handguns held and used for self-defense in the home.'

Notice that although handgun prohibitions are mentioned, the verbiage is 'these include', not 'these are limited too'. Lots more litigation coming up, but we have at least one protected area enshrined within the 2nd amendment.

[myelo]

5-4 ruling means we have one less thing to argue about in the O-club now.

And the winner in the category of "Worst prediction of the year" goes to ...

[lasersailor184]

Overall I'm dissapointed with the decision.  I read a good bit of the Majority Opinion and too much of the Dissent.  

Anyway, in the majority Opinion, he states that the government can't control ownership of guns in common usage*.  However, he then clearly states several times that the government can control the commercial sale of guns.  They can't stop people from owning it, but they can stop all future purchases of newly manufactured guns.  Prohibition anyone?

*The phrase "Common Usage" will come back to haunt us.  It basically means the guns we already have.  However, merely looking at how proliferate Machine guns are tells us what they are capable of doing with this term.  Machine guns aren't in Common Usage NOT due to personal choice, but due to Government limited purchases and the extreme difficulty in purchasing one, not to mention the artificially inflated cost.

Because of the government laws, Machine Guns are not in common usage, and thus can be legally controlled by the government.


Any paranoid person (like myself) would see that all it would take is a few years, and some very restricted sales to remove a gun from common usage from a region.  We would see communities that have very little firearms (by choice) suddenly are legally able to ban all firearms.

[Maverick]

I'm disappointed in the ratio of votes regarding this situation. I am deeply grateful that Bush did have a hand in selecting the court vs the alternative.

I'm very happy at the definitive ruling regarding individual rights and the clarification regarding the militia controversy. I happen to agree with the ruling in that rights are always individual issues and not collective ones. It fits with the concept of personal liberties and rights that are not granted by a state, they are only restricted (or in this case, protected) by a state.

I agree that there will be continuing litigation over the issue hence my disappointment at the ratio of judges. I am very hopeful that the next batch of nominees will be constitutionalists and not legislators from the bench. It was my understanding that issues before the court were to be decided based on the constitutionality of the issue, not the private opinions of the members of the bench. The dissenting opinions are clearly showing a decided bias on the part of the dissenters rather than a scholarly review based on the constitution and the framers intent. The Court is the check and balance part of the tripartite government equation and they really need to keep that in mind.

[midnight Target]

And the winner in the category of "Worst prediction of the year" goes to ...

Stupid 8-ball is always wrong <smacks it>...