USSC rules on 2nd amendment

[Ddrak]

link

From my reading, they went very narrowly to simply say that the 2nd amendment allows you to keep assembled handguns in your house. More significantly they did rule that it confers an individual right to bear arms rather than a collective one, so I'm sure we'll see more issues hit the USSC in the next year.

Dd

[Partha]

Wingnut cry of 'They're still gonna take our guns' at 3...2...1...

EDIT: And don't forget this is now legal.

Thanks, Justice Scalia!

[Fallakin Kuvari]

It was a squeaker of a win for constitutionalists, though.

[Embar Angylwrath]

Wingnut cry of 'They're still gonna take our guns' at 3...2...1...

EDIT: And don't forget this is now legal.

Thanks, Justice Scalia!

Another outright lie from Partial (add it to the list).

The article linked by Partial says the incident is still under investigation. The guy who shot the the person who (allegedly) was in the guy's house and who may have made threatening gestures... hasn't been charged.. yet.

The investigation is still on going, no determination has been made as to culpability, Partial is still a 'tard, and the sun will definitely come up in the east tomorrow. That is the truth.

[Partha]

So you're agreeing with me it's legal?

/childish taunt

Embar caaaan't reeeed, Embar caaaan't reeeeed....

/childish taunt

[Trollbait]

Upon reading the actual opinion (which I would hazard to guess most have not) Justice Scalia lays out a well thought out and logical reasoning for the 2nd Ammendment being an individual right and not tied to militia membership. He quite succinctly rebuts the dissenting opinions as well.

Here are a few of the choicest excerpts:

“Nowhere else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right.”

“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.

“It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods.This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, ChampaignCty., 333 U. S. 203 (1948).”

“The 19th-century cases that interpreted the Second Amendment universally support an individual right unconnected to militia service.”

“Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia.”

“Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service.”

“It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.”

And even a quote to answer Dumbass (Partha's) statement that shooting a person in your home is legal:

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.”

Justice Scalia is clearly saying there may be and are limits imposed on gun ownership and self defense in the same way that there are limits on free speech. If the man in your article lives in Florida under the castle law he is clearly within his rights to shoot the man. If, on the other hand, he lives in a state without a castle law then he is bound by the particular laws of that state. There is nothing I can find in the opinion that suddenly makes it ok to shoot people carte blanche as Partha seems to imply.

Remind me to L O L the next time Partha complains about someone "fear mongering".

[Ddrak]

I should have linked the actual decision: http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf

The decision is actually an interesting piece of circular logic - it says you are legally allowed to keep a gun in your house, and the types of guns are restricted to those in common lawful use. The unanswered question therefore is what defines "common lawful use" and does it leave an opening at a federal level to arbitrarily decide what's lawful or not and then have the 2nd amendment follow that around?

Dd

[Ddrak]

I disagree that Scalia did any truly serious rebutting of the dissent. For the most part they are arguing apples and oranges, with not entirely incompatible viewpoints. The main thrust of the dissent wasn't that the 2nd amendment was a collective right at all, but that the specific uses entailed that the 2nd protected were strictly the right to keep the weapons individually for the purpose of military service, and that any other use of arms was fair game for legislative action. I think the dissent did about as good a job of tearing Scalia's argument apart as Scalia did tearing the dissent apart, for instance:

If the 2nd applies to "the people" in the same way the 1st and 4th do then it is unconstitutional to deny felons or the mentally unstable the right to bear arms - after all they aren't excluded from the other amendments. Scalia's argument is therefore self-contradictory. Despite asserting "the people", he goes on to reason "the people" really doesn't mean all of them.

Breyer makes a pretty funny point that Scalia asserts the framers were talking about a right of self-defense in the home, when guns of the time were pretty much useless for self-defense in the home compared to other weapons (a well trained soldier could get maybe 3 shots a minute off after finding the gunpowder to actually load the weapon).

Interestingly, Breyer also saw the same circular issue I did:

According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun. On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous selfdefense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.

He also accuses Scalia of making shit up too (the list of exclusions to the second amendment that appear to have come from nowhere in particular), that is probably going to cause courts a bunch of headaches in the future. How exactly do you know what guns, what locations and what people the 2nd amendment does or does not apply to? The majority opinion is completely unclear.

Should be interesting.

(btw, did you read the dissent as well as the opinion, Jecks?)

Dd

[Trollbait]

what locations and what people the 2nd amendment does or does not apply to? The majority opinion is completely unclear.

It is not unclear at all. Scalia cites the Miller case as precedent. It is not circular and the dissent is being dishonest by failing to acknowledge that Miller sets a guideline by which legislators can enact restrictions.

In the Miller case the USSC rules against Miller and for the government stating that he could not own a short barrelled (read sawed-off) shotgun if the government had made it illegal because it was not a weapon "in common use" in those days. It is made clear that there is a public interest in regulating guns and an equally compelling interest in making sure that gun rights are not abridged.

This is done for other rights such as the First Amendment.

[Embar Angylwrath]

The states could get around this by allowing gun ownership of only those weapons common during the framing of the constitution. Black-powder muskets. By inserting that line to the majority opinion, Scalia either knowingly or unknowingly gave states huge powers over regulation.

[Klast Brell]

Scalia is a partisan hack.The ruling is ambiguous on the legality of other gun laws in other jurisdictions. DC is not a governmental entity like others in this country.

http://online.wsj.com/article/SB1214483 ... s_page_one
The decision stopped short of invalidating other local, state and federal gun regulations. The court also declined to hand legislators a blueprint for permissible gun regulations, acknowledging that the contours of the Second Amendment right, like other constitutional rights, will have to be mapped in litigation over the years to come.

Gun-rights advocates said their efforts will now swing toward challenging handgun bans in other cities, licensing laws and other statutes, such as zoning laws that ban gun stores. Among the issues that the court left to future litigation: whether the government can restrict other kinds of firearms besides handguns, specifically assault weapons, which have been the focus of numerous legislative battles at the state and federal level.

Gun nuts around the country are revving up their lawyers as we speak. A thousand different court challenges to local gun laws will certainly keep the issue in the news all over the country during a time when the republicans need every vote they can get. And if you think this is just about pistols and trigger locks in D.C. You can ask these nice men from Virginia why they are so happy.

[Ddrak]

It is not unclear at all. Scalia cites the Miller case as precedent. It is not circular and the dissent is being dishonest by failing to acknowledge that Miller sets a guideline by which legislators can enact restrictions.

How can it not be circular? The definition of what is lawfully protected is that which is "in lawful common use". It's absolutely circular and doesn't present any sort of clear indication of what is and isn't a constitutionally valid restriction unless you take it all the way back to the USSC for them to rule on the specifics again. All we know is that you have the right to a handgun inside your own house for now, while handguns are "in lawful common use". Apparently they'll lose their protection if people stop using them? Similarly, does a ban on assault weapons in some state become magically unconstitutional if the 4 states nearby take off their bans? Scalia seems to have enshrined a dynamic and changing interpretation of the constitution that destroys state's rights.

Sorry, but I was hoping for a definitive argument one way or the other but instead we got a ruling that guarantees the docket will be full of cases for decades to come as they decide each specific in turn.

Oh, and apparently felons and retarded humans aren't people.

Dd

[Trollbait]

The states could get around this by allowing gun ownership of only those weapons common during the framing of the constitution. Black-powder muskets. By inserting that line to the majority opinion, Scalia either knowingly or unknowingly gave states huge powers over regulation.
The states could get around this by allowing gun ownership of only those weapons common during the framing of the constitution. Black-powder muskets. By inserting that line to the majority opinion, Scalia either knowingly or unknowingly gave states huge powers over regulation.

I think you need to read the opinion.

We may as well consider at this point (for we will have
to consider eventually) what types of weapons Miller
permits. Read in isolation, Miller’s phrase “part of ordinary
military equipment” could mean that only those
weapons useful in warfare are protected. That would be a
startling reading of the opinion, since it would mean that
the National Firearms Act’s restrictions on machineguns
(not challenged in Miller) might be unconstitutional,
machineguns being useful in warfare in 1939. We think
that Miller’s “ordinary military equipment” language must
be read in tandem with what comes after: “[O]rdinarily
when called for [militia] service [able-bodied] men were
expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.” 307 U. S., at
179. The traditional militia was formed from a pool of
men bringing arms “in common use at the time” for lawful
purposes like self-defense. “In the colonial and revolutionary
war era, [small-arms] weapons used by militiamen
and weapons used in defense of person and home were one
and the same.” State v. Kessler, 289 Ore. 359, 368, 614
P. 2d 94, 98 (1980) (citing G. Neumann, Swords and
Blades of the American Revolution 6–15, 252–254 (1973)).
Indeed, that is precisely the way in which the Second
Amendment’s operative clause furthers the purpose announced
in its preface. We therefore read Miller to say
only that the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens
for lawful purposes, such as short-barreled shotguns.
That accords with the historical understanding of the
scope of the right, see Part III, infra.25

As the quotations earlier in this opinion demonstrate,
the inherent right of self-defense has been central to the
Second Amendment right. The handgun ban amounts to a
prohibition of an entire class of “arms” that is overwhelmingly
chosen by American society for that lawful purpose.
The prohibition extends, moreover, to the home, where the
need for defense of self, family, and property is most acute.
Under any of the standards of scrutiny that we have applied
to enumerated constitutional rights,27 banning from
the home “the most preferred firearm in the nation to
‘keep’ and use for protection of one’s home and family,”
478 F. 3d, at 400, would fail constitutional muster.

They make no mention of limiting arms to a specific time period and in fact Miller takes place WELL AFTER the framing of the Constitution. If any government body were to attempt such a ludicrous interpretation of this opinion as to restrict gun ownership to muskets they would do so at their own peril. It is clear that the opinion means common use at the current time since it mentions arms that are currently chosen overwhelmingly by the people for home defense.

On a side note I found Stevens dissent to be particularly funny and telling when he says that the protective nature of the Second Amendment has been dimished with the development of urban police departments. This is particularly humorous on 2 levels.

1) The USSC has previously ruled that police departments are not obligated to protect the populace. That is to say that I cannot sue a policeman if I call 911 and he fails to show before an intruder kills my wife. He is not obliged to stop her from being killed. He is only obliged to arrest her killer.

2) Saying that because the government has developed a method for limiting the chance of an intruder entering your home then your right to own a gun for home defense is diminished is like saying that if the government found a way speak for the people that your right of free speach would be diminished. The entire idea of the Constitution is that our rights are inherant and action by the government can in no way diminish the need or the application of those rights.

I find it vastly amusing that liberals have such a hard time with the second amendment all the while purporting to uphold the others. They bash the military as murdering thugs and only want that same military to have guns. They bash the police for heavy handed tactics but only want the police armed. They call our government incompetent on Katrina and the Iraq war (rightfully so) but want them to control our health care. They scream that the government is violating our fourth amendment rights (again they are right) but want to put the second ammendment through the shredder. Hypocrits I say.

[Trollbait]

Sorry, but I was hoping for a definitive argument one way or the other but instead we got a ruling that guarantees the docket will be full of cases for decades to come as they decide each specific in turn.

Is this your first reading of a USSC opinion? Scalia specifically mentions that certain aspects of this matter will definitely need to be litigated in the future. The court typically does not like to go beyond the scope of the matter before them. Most USSC opinions pertain to the matter in front of them and they typically mention that certain aspects are yet to be determined. He does leave a blueprint in citing Miller but if you are upset that the court did not decide the entire scope of all possible occurrences of application for the second ammendment then I can only say welcome to Constitutional Law. In fact I dont think the scope of all possible legal occurrences or violations for any ammendment has been absolutely and definitvely adjudicated.

There will always be room for further clarification and litigation. That is how it works. Next year it may be a fourth ammendment case and I doubt it will be so definitve that it eliminates all possible violations or improper legislative action in the future.

[Partha]

2) Saying that because the government has developed a method for limiting the chance of an intruder entering your home then your right to own a gun for home defense is diminished is like saying that if the government found a way speak for the people that your right of free speach would be diminished. The entire idea of the Constitution is that our rights are inherant and action by the government can in no way diminish the need or the application of those rights.

By that logic, Schenck v. US is wrong. Think about it.

[Ddrak]

It is clear that the opinion means common use at the current time since it mentions arms that are currently chosen overwhelmingly by the people for home defense.

And there is the circular argument. The constitution apparently protects your right to have the guns you already have, but not any guns which you don't have? That's a god-awful precedent and makes laws that would have been constitutional at the time of framing (ie handguns were definitely uncommon back then) unconstitutional now. Had D.C. enacted a handgun ban in the late 1700's instead of now, this interpretation of the 2nd amendment says that it would *still* be constitutional as no law-abiding person would have a handgun at home (by definition). So what sense is there in the decision that says a law enacted 200 years ago and still in force would be constitutional but that same law enacted today wouldn't?

In the same manner, had D.C. banned any handgun larger than a .22 then it would probably have passed constitutional muster given they weren't banning an entire "class" of arms and you could show that a large number of handguns were .22's. Once they'd done that, people would tend back to longarms and you could then ban the rest because it wouldn't be a majority any more. Again, stupidity.

I don't particularly care about the 2nd amendment either way, but I do think this was a bad decision. I think Miller was too, for that matter. I understand that they like to rule narrowly, but I think the precedent set in this case was poorly founded and open to more loopholes and abuse than the tax code.

And, yes, Stevens' dissent on the protective nature diminishing is stupidity for the same reason. It defines the constitution as overly subjective, just as Scalia's argument does. On the whole, the argument and dissent on this case were substantially underwhelming.

Dd

[Trollbait]

By that logic, Schenck v. US is wrong. Think about it.

I don't have to think about it. Firstly, my argument is not that we have an absolute right to free speech but that the right to free speech would not be diminished if the government found a way to speak for us. Secondly, in my opinion Schenck is wrong. Speaking out against an action of government cannot be compared to yelling fire in a crowded theater. Application of the "clear and present danger" standard is ludicrous in the case of speaking out against a draft. Thirdly, Schenck v. US was overturned by Brandenburg v. Ohio which changed the "clear and present danger" standard to the "imminent lawless action" standard which is entirely acceptable and more narrowly defines the limits to constitutionally protected speech.

[Rsak]

The states could get around this by allowing gun ownership of only those weapons common during the framing of the constitution. Black-powder muskets. By inserting that line to the majority opinion, Scalia either knowingly or unknowingly gave states huge powers over regulation.

Sorry but Jecks quoted the wrong part of the ruling to clarify this issue:

Some have made the argument, bordering on the frivolous,
that only those arms in existence in the 18th century
are protected by the Second Amendment. We do not interpret
constitutional rights that way. Just as the First
Amendment protects modern forms of communications,
e.g., Reno v. American Civil Liberties Union, 521 U. S. 844,
849 (1997), and the Fourth Amendment applies to modern
forms of search, e.g., Kyllo v. United States, 533 U. S. 27,
35–36 (2001), the Second Amendment extends, prima
facie, to all instruments that constitute bearable arms,
even those that were not in existence at the time of the
founding.

Its is a completely bullshit argument.

[Embar Angylwrath]

I wonder if that means I can own a shoulder-fired stinger missle system, for protection. Or an M1-Abrams tank (wouldn't that be cool). If Scalia's position is that US citizens have an unqualified right to own any weapon, absent a compelling state interest to limit the right, then the burden of proof will always on the state if they want to limit, in any way, the right of a citizen to bear arms.

Obvioulsy, it would seem rather easy for the state to show a compelling interest in limiting the sale of stinger missles and tanks. I just tossed that out as a crazy circumstance. Neither are all that effective for self-protection (unles you sleep in the tank), and no one wants some chuckle-head to start popping stingers at the odd airliner.

But what about fully automatic weapons? I can see a use for those. If you find yourself on the receiving end of a home invasion, 9 rounds may not be enough. But 50 or 60 might, especially if you're scared and need to "spray to slay", becuase you can't aim accurately.

[Fallakin Kuvari]

I just always figured the 2nd amendment was partly there for people to arm themselves should they need to overthrow a government thats gone bad.