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  #101  
Old June 26th, 2008, 06:01 AM
traveltoad traveltoad is online now
Aaron Shrier
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Awesome!
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  #102  
Old June 26th, 2008, 06:05 AM
thomaskimura thomaskimura is offline
Thomas Kimura
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  #103  
Old June 26th, 2008, 06:06 AM
rmccoy
 
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  #104  
Old June 26th, 2008, 06:09 AM
Roseann
 
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We are happy in Arizona.
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  #105  
Old June 26th, 2008, 06:10 AM
JSQ JSQ is offline
Jack Quinlan
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  #106  
Old June 26th, 2008, 06:24 AM
rmccoy
 
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From the Syllabus:

"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."

It appears from the Syllabus that no level of scrutiny was announced as the DC ban violated any level of scrutiny. Caveat - I haven't even begun to read the opinion.
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  #107  
Old June 26th, 2008, 08:16 AM
greghirst greghirst is offline
Greg Hirst
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The opinion is also on the NRA website:

http://www.nraila.org/media/PDFs/HellerOpinion.pdf

I haven't completely read it yet but enjoyed the comments regarding Stevens dissent both in the footnotes and main body of the opinion. Read Scalia's comments of the petitioners' and Stevens intepretation of the historical and grammatical meaning of the term "bear arms". I liked his comment:

"It would be rather like saying "He filled and kicked the bucket" to mean "He filled the bucket and died". Grotesque."

LOL

I'm a bit concerned regarding the focus on protecting self-defense and "lawful purposes" rather than as a protection of the citizenry against an onerous government. However, that focus certainly supports an individual right.

Furthermore, I wonder how the suggestion that Heller's right to a handgun for self-defense could be resolved with a simple license will be enacted. Does this mean we will see many states and jurisdictions requiring expensive and slow-to-procure licenses for handguns?

Unfortunately, I also don't see this changing the so-called assault weapons ban or magazine limitations that we have here in CA.

Last edited by greghirst : June 26th, 2008 at 08:20 AM.
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  #108  
Old June 26th, 2008, 08:34 AM
dchapman dchapman is offline
Daniel Chapman
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Isn't it a bit concerning that this was only a 5-4 ruling?
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  #109  
Old June 26th, 2008, 08:43 AM
blue blue is offline
Bill Gill, aka chump hater
 
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Ladies & Gentlemen,

We are also happy here in AZ, but this was really a near-tragedy for the Second Amendment and the Constitution.

Five to four. That's as close as it gets. Don't think for one second that the left's assault against the Second Amendment has been vanquished.

During the next Presidential term there will very likely be two, maybe even three, new appointments to the Supreme Court. Stevens & Ginsburg will likely be retiring one way or another within the next four years. Depending on who you listen to, Kennedy might also be on the short list for departure. If a Democratic President is elected and three new liberal judges are appointed, then it would be entirely possible that the next vote on a Second Amendment issue will be five to four against.

By the way, who was the swing vote on this one? I haven't had a chance to dig into it yet.
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  #110  
Old June 26th, 2008, 09:53 AM
greghirst greghirst is offline
Greg Hirst
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Quote:
Originally Posted by dchapman
Isn't it a bit concerning that this was only a 5-4 ruling?

Yes, it is. My first thought was, "5-4? Crap!"
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  #111  
Old June 26th, 2008, 12:19 PM
matttaylor matttaylor is offline
Matt Taylor
 
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Quote:
Originally Posted by blue

Five to four. That's as close as it gets. Don't think for one second that the left's assault against the Second Amendment has been vanquished.

During the next Presidential term there will very likely be two, maybe even three, new appointments to the Supreme Court. Stevens & Ginsburg will likely be retiring one way or another within the next four years. Depending on who you listen to, Kennedy might also be on the short list for departure. If a Democratic President is elected and three new liberal judges are appointed, then it would be entirely possible that the next vote on a Second Amendment issue will be five to four against.

.

Wouldn't this ruling set a precedent that court wouldn't want to mess with?

Doesn't the court stay away from 2nd Amendment stuff most of the time?

I was under the impression that this ruling will stick for quite some time, given the nature of the Supreme Court.
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  #112  
Old June 26th, 2008, 12:52 PM
JSQ JSQ is offline
Jack Quinlan
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Tom and I have a mini-IPSC match tonight and the chit-chat in between heats is going to be great.

I'll be shooting the G23 from a concealed holster in celebration.

Hooray for the 2A!
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  #113  
Old June 26th, 2008, 01:35 PM
blue blue is offline
Bill Gill, aka chump hater
 
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Quote:
Originally Posted by matttaylor
Wouldn't this ruling set a precedent that court wouldn't want to mess with?

Doesn't the court stay away from 2nd Amendment stuff most of the time?

I was under the impression that this ruling will stick for quite some time, given the nature of the Supreme Court.

Yes, yes, and not necessarily so.

It does set a precedent, which is a very good thing for supporters of the Second Amendment. But all it takes is for another similar issue to get kicked all the way up to the Supreme Court for another ruling. My point is that the gun control lobby will be pushing for another case to get up to the court if the court gets stacked in their favor.
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  #114  
Old June 26th, 2008, 01:55 PM
rmccoy
 
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It sets a precedent on the limited issue of whether the 2d amendment grants an individual right to keep and bear arms. What the Court leaves unsaid is how this right will be enforced. In other words what level of scrutiny will the court use to determine whether a law is unconstitutional.

Here, the Court left the issue undecided. It held that under any level of scrutiny, the D.C. law was unconstitutional. This holding in effect kicks the can down the road to other lawsuits to determine the level of scrutiny to be applied. Ideally, we'd like to see the toughest level of scrutiny applied for the 2d amendment, strict scrutiny. However, a subsequent court could decide to apply a lesser level of scrutiny such as an intermediate scrutiny or god forbid a rational basis test.

So here's the crux, we now know we have an individual right to keep and bear arms, however, the meaning of this could easily be gutted if the Court were to apply some lower level of scrutiny. Given that it was a 5-4 decision to hold that we have an individual right to keep and bear arms, any change in the SC to the left will almost guarantee an low level of scrutiny.

The other issue left to be decided is whether the 2d amendment is incorporated via the 14th and applies to the States. As DC is a federal enclave, this did not have to be decided in Heller. We'll have to wait until a lawsuit is brought against a city like Chicago to determine this.
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  #115  
Old June 26th, 2008, 02:28 PM
johnlee johnlee is online now
John Lee
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For the record, before the ACLU changes this page:

http://www.aclu.org/police/gen/14523res20020304.html

Gun Control

Why doesn't the ACLU support an individual's unlimited right to keep and bear arms?

BACKGROUND
The ACLU has often been criticized for "ignoring the Second Amendment" and refusing to fight for the individual's right to own a gun or other weapons. This issue, however, has not been ignored by the ACLU. The national board has in fact debated and discussed the civil liberties aspects of the Second Amendment many times.

We believe that the constitutional right to bear arms is primarily a collective one, intended mainly to protect the right of the states to maintain militias to assure their own freedom and security against the central government. In today's world, that idea is somewhat anachronistic and in any case would require weapons much more powerful than handguns or hunting rifles. The ACLU therefore believes that the Second Amendment does not confer an unlimited right upon individuals to own guns or other weapons nor does it prohibit reasonable regulation of gun ownership, such as licensing and registration.

IN BRIEF
The national ACLU is neutral on the issue of gun control. We believe that the Constitution contains no barriers to reasonable regulations of gun ownership. If we can license and register cars, we can license and register guns.

Most opponents of gun control concede that the Second Amendment certainly does not guarantee an individual's right to own bazookas, missiles or nuclear warheads. Yet these, like rifles, pistols and even submachine guns, are arms.

The question therefore is not whether to restrict arms ownership, but how much to restrict it. If that is a question left open by the Constitution, then it is a question for Congress to decide.

ACLU POLICY
"The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment [as set forth in the 1939 case, U.S. v. Miller] that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms." — Policy #47

ARGUMENTS, FACTS, QUOTES

"A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

— The Second Amendment to the Constitution

"Since the Second Amendment. . . applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right to possess a firearm."

U.S. v. Warin (6th Circuit, 1976)

Unless the Constitution protects the individual's right to own all kinds of arms, there is no principled way to oppose reasonable restrictions on handguns, Uzis or semi-automatic rifles.

If indeed the Second Amendment provides an absolute, constitutional protection for the right to bear arms in order to preserve the power of the people to resist government tyranny, then it must allow individuals to possess bazookas, torpedoes, SCUD missiles and even nuclear warheads, for they, like handguns, rifles and M-16s, are arms. Moreover, it is hard to imagine any serious resistance to the military without such arms. Yet few, if any, would argue that the Second Amendment gives individuals the unlimited right to own any weapons they please. But as soon as we allow governmental regulation of any weapons, we have broken the dam of Constitutional protection. Once that dam is broken, we are not talking about whether the government can constitutionally restrict arms, but rather what constitutes a reasonable restriction.

Here's the ACLU's Policy #47 again:

The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment [as set forth in the 1939 case, U.S. v. Miller] that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms.

Heller explicitly rejects the ACLU's interpretation of Miller:

JUSTICE STEVENS places overwhelming reliance upon this Court’s decision in United States v. Miller, 307 U. S. 174 (1939). “[H]undreds of judges,” we are told, “have relied on the view of the amendment we endorsed there,” post, at 2, and “[e]ven if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself . . . would prevent most jurists from endorsing such a dramatic upheaval in the law,” post, at 4. And what is, according to JUSTICE STEVENS, the holding of Miller that demands such obeisance? That the Second Amendment “protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature’s power to regulate the nonmilitary use and ownership of weapons.” Post, at 2.

Nothing so clearly demonstrates the weakness of JUSTICE STEVENS’ case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] 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.” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. Beyond that, the opinion provided no explanation of the content of the right.

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. JUSTICE STEVENS can say again and again that Miller did “not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,” post, at 42–43, but the words of the opinion prove otherwise. The most JUSTICE STEVENS can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General’s argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938, No. 696, pp. 4–5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

I can't wait to see how the ACLU reacts to Heller. The ACLU people must be squirming.

The same is true for hundreds of different Constitutional Law professors out there. Now they can no longer ignore the Second Amendment in Constitutional Law courses. Once the new editions of the Con Law books are out, the professors will have to teach it as they do the First and Fourth Amendments.
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  #116  
Old June 26th, 2008, 02:34 PM
johnlee johnlee is online now
John Lee
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Quote:
Originally Posted by greghirst
I liked his comment:

"It would be rather like saying "He filled and kicked the bucket" to mean "He filled the bucket and died". Grotesque."


I rather like this one about Justice Breyer's dissent:

Quote:
JUSTICE BREYER moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 10. After an exhaustive discussion of the arguments for and against gun control, JUSTICE BREYER arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.

That's funny.
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  #117  
Old June 26th, 2008, 02:49 PM
johnlee johnlee is online now
John Lee
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Did you notice how all four of the dissenters purport to accept the individual-right interepretation of the Second Amendment?

Justice Stevens' dissent starts with:

Quote:
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.

The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. . . .

Justice Breyer's dissent:

Quote:
JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE SOUTER, and JUSTICE GINSBURG join, dissenting.

. . .

The Second Amendment says that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:

(1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (STEVENS, J., dissenting).

So all four of the dissenters embrace the individual-right interpretation of the Second Amendment? At least they purport to. Certainly, they don't want to go down in history as idiots. But then, buried deep within their dissents, it comes out. An "individual" can enforce the Second Amendment only when he is acting in an official capacity of the state. That is, only the state can enforce the Second Amendment.

I'm reminded of Judge Kleinfeld's dissent in denying en banc review by the Ninth Circuit in Nordyke v. King:

Quote:
Our court and the Fifth Circuit take opposite views. In United States v. Emerson, the Fifth Circuit reads the Second Amendment to establish an individual right to keep and bear arms. Our court reads it not to. Our court takes what to me is a position verging on droll legal humor, that the right is a “collective” right belonging to state government, meaning that it is enforceable only by the state, even when the state is the violator.
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  #118  
Old June 26th, 2008, 04:36 PM
johnlee johnlee is online now
John Lee
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I guess the lawsuit against the City of Chicago has already been filed:

http://www.chicagotribune.com/news/c...,3486307.story

Alan Gura, Heller's counsel in Heller, is one of the attorneys for the plaintiffs.
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  #119  
Old June 26th, 2008, 06:39 PM
greghirst greghirst is offline
Greg Hirst
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I still haven't finished, but I'm loving reading Scalia's opinion.

His measured analysis cuts right through the legal sophistry. I also like how he writes with a bit of humor and style.

In the footnotes of discussing the meaning of "To keep and bear arms":

"14 Faced with this clear historical usage, JUSTICE STEVENS resorts to the bizarre argument that because the word "to" is not included before "bear" (whereas it is included before "petition" in the First Amendment), the unitary meaning of "to keep and bear" is established. Post, at 16, n. 13. We have never heard of the proposition that omitting repetition of the "to" causes two verbs with different meanings to become one. A promise "to support and to defend the Constitution of the United States" is not a whit different from a promise "to support and defend the Constitution of the United States."

Last edited by greghirst : June 26th, 2008 at 07:30 PM.
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  #120  
Old June 26th, 2008, 07:18 PM
Eric Siepmann
 
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Quote:
Originally Posted by johnlee
I guess the lawsuit against the City of Chicago has already been filed:

http://www.chicagotribune.com/news/c...,3486307.story

Alan Gura, Heller's counsel in Heller, is one of the attorneys for the plaintiffs.

Going to the Suburbs to shop this weekend!

EwS
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  #121  
Old June 26th, 2008, 07:27 PM
greghirst greghirst is offline
Greg Hirst
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Regarding the stupidity of requiring trigger locks in DC:
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  #122  
Old June 26th, 2008, 07:38 PM
greghirst greghirst is offline
Greg Hirst
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Speaking of the ACLU:
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  #123  
Old June 26th, 2008, 07:44 PM
greghirst greghirst is offline
Greg Hirst
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  #124  
Old June 26th, 2008, 08:05 PM
johnlee johnlee is online now
John Lee
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I think Greg has a new Hero.
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  #125  
Old June 26th, 2008, 08:28 PM
rmccoy
 
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I think my favorite part of the opinion was that the majority placed the First and Second Amendment on equal footing in rejecting, at least in dicta, an interest balancing approach. From pages 62-63:
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
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