interesting read on the Heller Decision

[bossy22]

i couldn't sleep so i did some googling and came across this very interesting piece by Akhil Amar

http://www.harvardlawreview.org/issues/122/nov08/amar.pdf

its a bit lengthy but a good read for anyone who is looking for a good in-depth study of the decision

[Fire_Medic_Dave]

1. Significant indictment of Justice Stevens in the bit I read.

[Joe Steel]

2. Boil it down.

Give us a summary. Why is it so interesting?

Scalia's word twisting and fanciful conjuring seems wasted. The Supreme Court is packed with wingnuts. How could the decision have been any different?

[bossy22]

3. in summary

Justice Scalia came to the right conclusion through the wrong means....Akhil Amar believes that to understand the second amendment you must also study the 9th and 14th amendment. He believes origininalism may not have been the best way to go to support the individual right theory.

[Recursion]

16. That's what I think about Heller

Heller was specifically about a handgun; I think the right to own a handgun is protected by the 9th and 14th amendments (as well as the 4th). It doesn't fall under the 2nd because it is of little military use; however, the 2nd does allow us to have and keep (in a manner regulated by the state) armaments typical to a light infantry soldier, ie, an "assault weapon". But for example the state or locality could make us keep them in an armory rather than in our home.

[raimius]

20. I disagree

Handguns have military use. That is why the military has hundreds of thousands of them. Hence the popularity of the Berretta 92 and M9 series.

Assault Weapons are not typical of the light infantry soldier. They have real assault rifles, capable of select and automatic fire, which is illegal for civilian production.

Interesting that you say the 2nd Amendment can be regulated by the state. (note the last 4 words of the Amendment)

[X_Digger]

4. quite the smack down of Stevens

It points out that Stevens himself, in adjudicating a case only four months earlier, makes Scalia's points for him.

The idea that precedent trumps all (including the constitution itself) is ludicrous on its face, nor is even the idea that us v miller sets a proper precedent for the question being asked supported by Stevens' own argument.

Scalia spends a lot of time looking at the history of the US 2nd as well as similar amendments in state constitutions, and finds that the original intent was an individual right to bear arms. He asserts that this interpretation is properly the highest duty of the court (to interpret the original, historically in context, meaning of the constitution). (much to some posters chagrin regarding old sexist landed slave owning blah blah blah) Basically, he shows how miller, a decision that didn't even have an attorney for the defendant present, has been improperly used as precedent for expanding gun control laws.

He then goes on to show how Scalia reached the proper conclusion, but for wrong reasons. The individual right to bear arms is more properly supported by the ninth- that the narrowly defined second amendment does not limit the right, just limits government's encroachment of that right. Other rights not codified (or codified narrowly in an amendment) are not limited by those codifications. He then goes into the fourteenth amendment and how those protections enumerated (explicitly in the case of arms!) apply to all citizens, and mentions the text of a companion statute passed in 1866 that says in part: "the right . . . to have full and equal benefit of all laws . . . concerning personal liberty personal security . . . including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens." This statute dissolves the link between bearing arms and military service.

He goes into some detail about the history and politics of the dissenters, frequently tying back to those jurists' history with the HLR. An interesting side-trip that brings up more points about how post-reconstruction amendments and precedents more readily lead to an individual interpretation, I found these sections quite enlightening. (e.g. Ginsberg's not stepping into the 'women question' which could have shown how 'the people' in 1781 was expanded to explicitly include women by the 19th as successfully argued in the VMI case.)

Overall, interesting read, thanks for the link!


eta: typos

[bossy22]

5. exactly lol

I'm glad that he specifically discussed stevens idol worship of the Miller case. Amar states what anybody who studies constitutional law should realize- with regards to the second amendment the miller decision is a flawed and at best a weak decision cemented on constitutionally flimsy grounds.

[rangersmith82]

6. Yea it funny how Miller died...

And they didn't even put a lawyer there to argue the case...

I think there is a case pending that may even get more support for the 2nd.

We gotta stop the upcoming national HR 45 registration bill, once it is in place confiscation will be next..

Under this bill you will have to pay money to keep your firearm ownership rights.

[bossy22]

13. confiscation next????

i'd bet my car, my savings, and my gun collection on there never being a confiscation event....even if this bill does pass. First there is the second amendment....there is no question that legally the second amendment protects our right to own firearms for lawful purposes. Second, logistically speaking...it would be a nightmare...plus the government would have to give you just compensation which would just probably close to 100 billion dollars (which the government doesnt really have)

i agree that if this is passed that they will probably go for a "next step" but i dont see confiscation ever being one of those steps. No offense, anyone who is actually believes that confiscation has a decent probality of happening has a few screws missing if you know what i mean. They are the same people who are to blame for the price gauging when it comes to semi-automatic long guns. This whole run on guns is a stupid self-hyped frenzy created by the gun owning community.

I'm sorry if i sound angry, i work in a gun store part time and im sick of people saying day after day "obama is going to take our guns"

[X_Digger]

14. Not a confiscation per se..

But I could see a forced registration (HR0045).. then closing the registry to X gun (a la '86 registry closing for NFA).. then Y gun.. then Z class of guns.. then no 'gifting / inheritance' for those previously registered.

[bossy22]

15. De Facto bans

will still be struck down. D.C.'s law was a de facto ban...it didnt actually ban the possession of handguns totally, it just said you can't possess one if you didnt register it before 1976. A de facto ban and a true ban are the same in practice- both would be struck down by the supreme court

[rangersmith82]

17. So would the Heller decision strike down a new Assault Weapon Ban??

That would be great if the Heller decision prevented any further bans.

The problem in the decision is it says "reasonable restrictions"

The problem remains with what the anti gun forces consider reasonable.....

[X_Digger]

18. Right, some muddying of the issue..

from the decision. On one hand, banning 'popular arms in legal, common use' was forbidden, but on the same hand, 'reasonable restrictions' could be used in fits and stars to nibble away until the end result is the same as an outright ban.

[Indy Lurker]

21. depends...

if Assault Weapons are the sorts of weapons that are “in common use"

Heller says the 2nd amendment protects:


"arms “in common use at the time” for lawful purposes like self-defense"


It also says:

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




25

Miller was briefly mentioned in our decision in Lewis v. United States, 445 U. S. 55 (1980) , an appeal from a conviction for being a felon in possession of a firearm. The challenge was based on the contention that the prior felony conviction had been unconstitutional. No Second Amendment claim was raised or briefed by any party. In the course of rejecting the asserted challenge, the Court commented gratuitously, in a footnote, that “hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller … (the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).” Id., at 65–66, n. 8. The footnote then cites several Court of Appeals cases to the same effect. It is inconceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not argued.

[57_TomCat]

19. Confiscation may well be the ultimate end.

About 1920 England embarked on a licensing system that became (over about 75 years) a system of laws covering the complete control of firearms. The process was very simple in concept with many "safeguards" but over the years they were able to increment the laws to a point where handguns were banned and all registered owners of handguns were tasked with turning them in (for compensation) or suffering criminal prosecution. Of course the unregistered guns are still causing some trouble in law breaker hands.

Any legislation with registration has the potential of confiscation and a history to prove it could happen.

Whether Obama or others will be the final answer on confiscation I do not know. I do believe Obama and in particular several of his underlings will cause long term damage to the individual right and possible confiscation in the future.

History does tend to repeat itself. :(

[DrCory]

22. If That Is The Case...

"The Supreme Court is packed with wingnuts. How could the decision have been any different?"

How you do explain the decision of Boumediene v. Bush?

[Joe Steel]

7. What a hack.

I started reading Amar's HLR article and realized I had to take a better look at Heller. Doint that gave me a better idea of what a hack Scalia is. I don't think he did any original research for Heller. He just repeated all the nonsense the other gun nut hacks have been spewing for years.

[X_Digger]

8. In this case..

A lot of the 'gun nut hacks' that he references are our founding fathers ;)

Was there a specific part of the opinion that you found fault with?

( link: http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-2901.pdf )

[virginia mountainman]

9. Wow, another anti-civil rights member of DU.. NT

[jmg257]

10. Hmm..maybe 'cause it isn't nonsense? More likely that he DID do the research, and came

to the same pro-rights conclusions as so many others.

Spend an hour or so reading the Constitution, the words of the framers, the debates in congress, the recommendations of the state ratifying committees, the Militia Acts of the time, etc. - you will come to the same conclusions too. If not, you may need to re-think who the real hack is.

[bossy22]

12. or even take Amar's way

look at the constitution through an evolutionary glass. Even if the original intent may have been a bit more militia related (though i believe that militia and individual when understanding this right was seen as one in the same), by the antebellum and reconstruction era's it was understood as an individual right.

My personal belief is that a constitution cannot be interpreted through one belief. Its important to look at parts through an originalists glasses but we must also understand that evolving nature of our constitution. I agree with Amar that scalia could have made some better arguements.

[bossy22]

11. If you read the entire HLR article

you would see that Amar also mentioned that Scalia made some good points and that his overall conclusion (that the 2A protects an individual right) was correct (though i always believe the ends dont always justify the means).

you would also see that Amar comes down very hard on stevens's dissent

Whatever it may be, scalia and stevens's both had good points and bad points.