Heller Decision

[Guest ProguninTN]

I really expected 6-3. 5-4 is scary. Some of the justices apparently have no concept of history and do see themselves as ultimate legislators.

It's for that reason, I predicted 5-4 with Justice Kennedy being the key. I guess I was right. For another example of justices refusing to follow the constitution and legislating from the bench, see Roper v. Simmons (2005). Regardless of one's opinion on capital punishment, the majority's willingness to consider international law over our own constitution is quite alarming and outrageous.

Edited June 26, 2008 by ProguninTN

[Guest nj.piney]

four of the justices are trying to help the constitution evolve into the 21 century , rather than interpret it.

[Guest Len]

Here's the spin from the other side. They don't seem surprised.

Supreme Court Decides Historic Second Amendment Case

With Your Help, Brady Center Will Defend America’s Gun Laws

Dear Len,

Just hours ago, the U.S. Supreme Court handed down its ruling on the most significant Second Amendment case in our country's history,

District of Columbia v. Heller

.

I want you to know that we have hit the ground running. Our fight to enact and defend strong gun laws to save lives will be undiminished.

The

Heller

decision will no doubt embolden ideological extremists to file new legal attacks on existing gun laws. But with the help of the Brady Center’s legal team, those attacks can, and must, be successfully resisted in the interest of public safety.

That is why

we need your help now

. This fight is so critical that we need to raise $50,000 by June 30. Your gift to our

Brady Gun Law Defense Fund

will be fully tax-deductible!

We also have an opportunity and we plan to seize it.

We disagree with the Court’s decision giving individuals a right to possess guns for private purpose. However, what is critically important is that

all nine Justices agreed that a wide variety of gun laws are constitutional

, including restrictions on carrying concealed weapons, guns in schools and other sensitive places, and bans on "dangerous and unusual" weapons.

For years, the gun lobby has used fear of confiscation by the government to block efforts to pass sensible gun laws, arguing that even modest gun laws would lead down the path to a complete ban on gun ownership. Since the Court has overturned the District’s ban on handguns, this "slippery slope" argument is gone.

The Court also rejected the "absolutist" view of the Second Amendment that some use to argue "any gun, any time for any one."

Now, politicians will no longer have these arguments to justify opposition to universal background checks and other common sense measures to prevent dangerous people from getting dangerous weapons. As a result, gun control should no longer be a "wedge" issue in politics. We can move forward with finding sensible solutions to gun violence.

So with your

help

we will be ready to defend current gun laws that protect you, your family and community . . .

. . . from the long-standing machine gun ban . . . to the 1968 Gun Control Act . . . to the Brady background check law.

. . . to your local and state laws . . . like the ones in Chicago and New York . . . as well as the laws in California and New Jersey banning military-style assault weapons . . . and many more.

Your Brady Center will defend these laws in the courts as we have done so many times in the past against the attacks of the gun lobby. Please

give generously today

.

Sincerely,

Sarah Brady, Chair

P.S. I cannot stress how important your gift is to our Brady Gun Law Defense Fund.

Please give a tax-deductible gift today

.

[Guest bolesie]

that is why everyone that says they will stay home in november should rethink... big time. hey think of this same discision if obama had 2-4 nominees on the court!!!!!!!!!!!!!

[Guest GT_Rat]

I do hope you wrote them an appropriate e-mail response Len.

[Guest ProguninTN]

Good information, Len. Are you a self-appointed spy ?

[The Rabbi]

Translation of Len's email from the Brady Campaign:

The World is ending!!! Send us money!!!

I'd be curious to see a national poll on the decision. I would bet a large majority are happy with it.

[Guest GLOCKGUY]

Translation of Len's email from the Brady Campaign:

I'd be curious to see a national poll on the decision. I would bet a large majority are happy with it.

i would like to see one to and i agree with you that 90% of Americans are happy with their decision

[Marswolf]

Oh, this decision is just the can opener on a gigantic can of worms - or maybe slugs.

Let us hope that the courts understand and rule that we all have a right to protect ourselves from those who might wish to prey on us. Therefore, we have a right to possess and use all of the weapons that these thugs might use against us.

There is a long way to go folks, but this decision goes a long way to prevent the idiotic British and Canadian gun grabbing scenario in this country.

I have new respect for the Founding Fathers.

[Punisher84]

I'd be curious to see a national poll on the decision. I would bet a large majority are happy with it.

Every poll I have seen in news links are overwhelmingly in favor of the decision.

I bet Sarah Brady looks like the Emperor when he found out the Death Star got blowed up!

Warning Mild Language

[midtennchip]

Okay, here is the promised lawyer's analysis of the decision. NOTE: This is only a review of the majority decision. I didn't have time to read the dissents.

First, as a gun owner, I will state that this decision concerns me (more later). Although this is a win for us that believe the 2A provides an individual right, the decision did not do much to dissuade restrictive (even very restrictive) laws. For those who wish to read for themselves the language that really concerns me, start reading on page 52 of the opinion (starting with first full paragraph on the page) and go through page 56.

Pros

1. Individual right upheld

2. Handguns (including semi-autos) appear to be protected from unreasonable (whatever that is) restrictions

Cons

1. ARs and AKs may be in jeopardy

2. High-cap mags may be in jeopardy

3. Any gun that is "unusual in society at large"

3. Opinion does NOT make clear that state and local laws are subject to this decision

Here is the language that really concerns is found on page 53, "[w]e 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-barred shotguns." Now, some of you will say ARs and AKs (as well as very high capacity guns) are "typically possessed by law-abiding citizens." But, I would suggest that Scalia's language throughout the opinion indicates that firearms that he (and evidently the majority of justices) believes "typically possessed" would likely be hunting rifles, shotguns, and most (but not all) handguns. While future cases will decide where the line is drawn, the first handguns that come to mind are the 5-7 and handguns with capacities of 20+ rounds. That is only a guess and I would think 15-17 cap polymer guns (like my H&K) would be protected, but I think Scalia's language points to a line somewhere just beyond that. I have an AR-15 and I am VERY concerned that restrictions (even outright bans) on them may be upheld under the Heller decision.

The other issue is that the decision does NOT address the "incorporation" of the 2A to the states. This decision was limited to D.C. (a federal enclave), so the decision does not automatically apply to the states (or municipalities). As a result, we will have to wait until someone challenges those laws. Chicago and New York City may be the first on the list. We'll see.

For those really interested in legal analysis (certainly analysis that is better than mine), I would point you to Glenn Reynolds's blog (www.instapundit.com). Although Prof. Reynolds only gives brief analysis, he has great links to very respected constitutional scholars.

[towerclimber37]

naturally, the brady folks will end up trying to take everything they can.

thanks chip!

[Guest dotsun]

Chip, thanks for your legal interpretation of all this. I was a bit concerned with some of the ambiguities in the readings I heard today on the radio.

[Guest gcrookston]

Congrats to the Supreme Court for having a majority who understand a foundation stone of the this great country... D.C. be damned, now on to Chicago!

[The Rabbi]

Chip,

I have no idea where you are reading this from.

Guns not normally possessed by law abiding people, such as SBS means just that:NFA weapons. The AR is probably the most popular rifle in America. There is at least one major forum devoted to it. Where did you ever see www.shortbarrelledshotgun.com and the discussion boards there?

Just because something was not addressed by Heller does not mean that it suddenly is going to be banned. Congress could institute an AWB. They could prior to Heller. They can after Heller. They are not going to, regardless of Heller. The political process is still at work here. And the political process, spurred on by today's ruling, is against gun legislation.

Finally Scalia wrote explicitly that it was not the intent of the decision to make everything clear. Rather these issues will be hashed out in the legislatures (preferably) or the courts.

Heller is not the final word on the whole issue. But it is a wonderful base to go on to other issues from.

[Guest BG38357]

Too bad it wasn't 9-0 rather than 5-4.

They should be interpreting law, not making it.

[midtennchip]

Glad to provide any insight (if any) to the issue. At this point, I am very concerned that the recently proposed ban (discussed in another post here) might be okay under this decision. As Tennesseans, I don't see the state passing any laws that would be held unconstitutional under Heller. Local laws might be a different story, but I don't see that either. However, federal bans may be a BIG problem.

I have read on a few more liberal blogs that this decision eliminates the gun issue from the Presidental race. I wholeheartedly disagree. I think this decision opens us open to another federal ban.

[The Rabbi]

Glad to provide any insight (if any) to the issue. At this point, I am very concerned that the recently proposed ban (discussed in another post here) might be okay under this decision. As Tennesseans, I don't see the state passing any laws that would be held unconstitutional under Heller. Local laws might be a different story, but I don't see that either. However, federal bans may be a BIG problem.

I have read on a few more liberal blogs that this decision eliminates the gun issue from the Presidental race. I wholeheartedly disagree. I think this decision opens us open to another federal ban.

I dont see any evidence for that whatsoever. The SC just struck down a Federal ban. Most of the voters approved of that. Why would they go and try to pass another one.

[Guest David Waldrip]

All:

This email is going to the list of NRA Frontlines volunteers in the 7th Congressional District.

Here is the latest release by the NRA regarding today's Supreme Court decision.

This is again an appropriate time to thank Senator Alexander, Senator Corker, and Congressman Blackburn for their signatures to the Amicus Brief in support of the Second Amendment. Thank you!

Here is Senator Alexander's statement on today's ruling.

Here is Congressman Blackburn's statement and is reprinted below as follows:

--------------------------------------------------------------------------------

Blackburn Commends Supreme Court’s Affirmation Of Gun Rights

Decision A Victory For Freedom And Constitutional Rights

Washington, Jun 26 - Rep. Marsha Blackburn (TN-7) hailed the Supreme Court’s decision to strike down as unconstitutional the District of Columbia’s gun ban.

Commenting on the decision, whose ramifications extend well beyond DC, Blackburn said:

“Today the Court recognized what Tennesseans have always known, that the 2nd Amendment applies to individuals, and that all Americans have an inherent right to self-defense. This is a victory for freedom and our constitutional rights and a blow to anti-gun activists who want to restrict individual freedom. The Court again confirmed that the Constitution trumps liberal Democrat policy when they seek to roll back individual liberty.â€

“On a personal note, I am gratified that the young women on my DC staff may now appropriately defend themselves if they so choose.â€

--------------------------------------------------------------------------------

Way to go, Congressman Blackburn! Please keep talking.

On a personal note, let me invite you to make this day a day of some sort of personal celebration, especially if you were involved in the Presidential elections of 2000 and 2004. For me, I'm going to go enjoy that steak that I rarely get to enjoy.

Regards,

David Waldrip

NRA-ILA Election Volunteer Coordinator

TN-7

Edited June 27, 2008 by David Waldrip

[midtennchip]

Chip,

I have no idea where you are reading this from.

Guns not normally possessed by law abiding people, such as SBS means just that:NFA weapons. The AR is probably the most popular rifle in America. There is at least one major forum devoted to it. Where did you ever see www.shortbarrelledshotgun.com and the discussion boards there?

Just because something was not addressed by Heller does not mean that it suddenly is going to be banned. Congress could institute an AWB. They could prior to Heller. They can after Heller. They are not going to, regardless of Heller. The political process is still at work here. And the political process, spurred on by today's ruling, is against gun legislation.

Finally Scalia wrote explicitly that it was not the intent of the decision to make everything clear. Rather these issues will be hashed out in the legislatures (preferably) or the courts.

Heller is not the final word on the whole issue. But it is a wonderful base to go on to other issues from.

Rabbi, I typically agree with you on rights issues, and you MAY be right. However, Miller in no way can be read to apply ONLY to NFA weapons. "Guns not normally possessed by law abiding people" is the operative phrase, not "such as short-barreled shotguns." But, this decision provides NO new protection for most guns. I believe the only gun type that got protection under this decision is "handguns," since that's the only type actually referenced as protected in the opinion. Hence, the reason I stated "may" on my analysis. These things are up for debate, but this decision could have simply not addressed the types of weapons protected under the 2A. Even Scalia says (page 52), "[w]e may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits." That is, he didn't have to talk about it. But, since he did (mainly by going on and on about the fact that "handguns are the most popular weapon chosen by Americans for self-defense." Page 57-58), it gives liberal judges fodder on which to uphold bans on weapons that may not be the most typical weapons in the general public.

While you (and I for that matter) may think AR-15s and similar weapons are fairly common, I have zero confidence that many judges would see it that way. And I certainly doubt the number of internet forums about certain types would be much help in determining if a weapon is "normally possessed." You certainly have a better idea than I do what people are really buying, but I suspect (ie: no facts) that shotguns and hunting rifles are still much more common that ARs and AKs.

Maybe I am just overly pessimistic, but judges tend to let me down (as Scalia has done to some degree today, and I'm usually a big Scalia fan). I say, again, this decision MAY open the door for new bans at the federal level. Yes, it is a political issue at this point, but I also don't have confidence in our officials. Hell, most people (some exceptions here I'm sure) don't know how far-reaching last year's proposed OSHA regulations were with respect to ammunition. Thankfully, those were withdrawn. Had they been enacted, they would have had a huge impact on production, storage, and transportation of ammo. And, that was under a Republican administration. I just hope the political process doesn't produce another ban because this decision will not stop it. I had hoped this decision would at least suggest that an "assault weapons" ban could be unconstitutional, but it comes closer to opening the door than it does to closing it.

Hope that explains my view on it.

Edited June 27, 2008 by midtennchip

[Fallguy]

Chip I agree that it is hard to put a lot of faith in the judicial and legislative branches on this.

However I'm not sure this ruling would cause new bans to be issued, I don't see TN or other state all of sudden banning AR's or AK's. Although I agree with the wording of this ruling it could still possible to do on a federal level at some point.

Also this will more than likely simply lead to more cases to challenge what restrictions are reasonable.

[midtennchip]

I'm not saying this decision will CAUSE more bans, I'm just saying that Scalia drew a line that he did not have to do draw (there was no need to discuss which weapons in this particular decision). Scalia got caught up in responding to every liberal argument and went beyond what was necessary. To that end, the weapon types issue is likely dicta (ie: not precedent setting).

However, he laid out for any politician (as well as judges hearing new cases) that wishes to test the limits of this decision a pretty good idea of where to the bans. For example, if the California laws are tested, the Ninth Circuit judges (notorious for stretyching precedents to the breaking point) can latch onto the idea that high-cap weapons are not typically possessed and uphold the ban. Certainly most of most would disagree with that, but it would allow a ban that many of us think is unreasonable to continue for many more years. It might take another 6 to 7 years (just like this one) to get a ruling. Instead, what Scalia could have done was left enough doubt in the minds of politicians and judges to dissuade further restrictions.

Again, just my opinion on the political ramifications. But, from a lawyer's point of view, I believe many of the anti-gun politicians and lawyers out there are finding many arguments from this decision to restrict gun rights. Specifically, other than for bans like DC, Chicago, and (maybe) NYC, this decision provides no real hurdles. Tennessee is not likely to pass anything like these anyway, but the federal bans already in Congress (with the right winners in November) could put us right back to the 90s. That, to me, is a terrible thought.

[Fallguy]

I see what you're saying...

[strickj]

Did anyone see that dip slit from the brady bunch on Fox news today?

He had tears in his eyes he was so pissed off I'm surprised he didn't start crying on camera!

And just like normal he stated he supported the decision,and looks forward to things to come,bla blah blah

[Marswolf]

I have to agree Chip, the decision is sufficiently vague to open us up to all sorts of regulation short of absolute bans. That can of worms was opened with the NFA and a Court unwilling to strike it down. Alito seems to be the only Justice willing to actually interpret the Constitution as it was written. I'm very disappointed in Scalia. I suspect it was a compromise to get the votes needed to uphold an obviously correct lower court ruling.

So, I think we are going to see all sorts of legislative attempts to register and limit gun use, using this ruling as justification. It's going to be a bumpy ride.