Heller Decision

[Guest jackdog]

At present I have to go with Rabbi on this issue. I think there are a lot of moderate Democrats in congress that realize that gun laws are shooting themselves in the foot.

I think the democrats will be moire likely to back away due to the over whelming poll results. A few months ago I remember some members here not wanting Heller to go to Scotus for fear that they would rule in favor of of the DC. What ever may come in the future, I think at this point, we won a major victory.

[The Rabbi]

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. .

You're right. Heller does not provide protection for guns. That wasn't what the case was about.

The case was about whether there was an individual right of firearms ownership at all, and whether DC's total ban violated that right. Both those questions were answered in the affirmative.

But merely because the court didnt address other questions directly does not mean that suddenly they are going to happen. The Court is only one branch of gov't. Congress would still have to pass an AWB, the president would still have to sign it. Those things haven't happened in the last 12 years and they aren't likely to happen for the next 12 either. ANd they are less likely now with Heller, which simply adds to the pro-gun momentum we've seen over the last decade or so.

[The Rabbi]

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

They should be interpreting law, not making it.

What difference does the vote make? WHat was the vote in Brown? In Griswold? In Roe?

(Brown was unanimous, both Griswold and Roe were 7-2.)

[G27]

You're right. Heller does not provide protection for guns. That wasn't what the case was about.

The case was about whether there was an individual right of firearms ownership at all, and whether DC's total ban violated that right. Both those questions were answered in the affirmative.

But merely because the court didnt address other questions directly does not mean that suddenly they are going to happen. The Court is only one branch of gov't. Congress would still have to pass an AWB, the president would still have to sign it. Those things haven't happened in the last 12 years and they aren't likely to happen for the next 12 either. ANd they are less likely now with Heller, which simply adds to the pro-gun momentum we've seen over the last decade or so.

I'm no attorney, but I agree - I think this is a monumental victory that will help keep the anti-constitutionalists at bay for a while...

[creeky]

What about executive order?

(I'm a little fuzzy about those.)

Could that be used against concealed carry laws, mag capacities, AWBs, etc.

[midtennchip]

Marswolf, that's exactly my point. I hopes for the decision were to expressly state that owning firearms (not just firearms "usually possessed by law-abiding citizens") is a right. But, I guess I need to clarify that a RIGHT is only subject to reasonable restrictions. Whereas, if there's no right to possess a particular type of weapon (like NFA weapons), then that type of weapon is subject to outright ban (not just reasonable restrictions).

I personally (which isn't worth swat in the grand scheme of things) think citizens have a RIGHT to "keep and bear" weapons (see page 19 of the opinion). Even though Scalia states this in the opinion, and in fact states "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" (see page 8), he should have stopped right there. There was no reason to then say "usually possessed by law-abiding citizens." To me, "usually possessed" is a fairly significant percentage of citizens (not just gun owners). For example, if we used ar15.com as an indication (as Rabbi suggested), it has (by one estimate) 55,000 members. 55k out of 300+ million is not a significant percentage. Hell, it's barely a percentage at all. So, if there aren't at least a few million AR and AK owners, I think ARs and AKs could easily be considered unusual in today's judicial climate. If there are that many AR and AK owners, great. It just scares me.

However, to me, "bearable arms" would include NFA weapons. While it would also likely include (in my definition) grenades, rocket launchers, etc., I think citizens have a right to those as while (obviously, with some serious restrictions similar to the current NFA restrictions). I think the RIGHT would extend to any arms that are, in fact, capable of being "beared" by a citizen. That would leave other arms (tanks, nukes, howitzers, etc.) as being outside the RIGHT and subject to a complete ban -- i.e., you just cannot have them. (I guess you'd have to get into the difference between "arms" and "explosives" to really evaluate this, so I won't do that -- aren't you glad?!?!?)

I recognize, as Rabbi and others have pointed out, that it is still in the hands of politicians to actually implement these bans. But, the "scare factor" of saying all bearable arms are protected by the 2A was destroyed by Scalia's insistence in arguing with Stevens on points that were (IMHO) irrelevant to the issue.

To summarize, it is the definition of a RIGHT, not the reasonable restrictions on a RIGHT, that concerns me. If you do not have a RIGHT, a complete ban can be upheld. Scalia appears to have drawn a line on the right to exclude a number of weapons I believe are protected. That's my take.

[midtennchip]

You're right. Heller does not provide protection for guns. That wasn't what the case was about.

The case was about whether there was an individual right of firearms ownership at all,

Rabbi, that's my point. Scalia did address whether there was a right to certain firearms. He didn't just leave it at whether the 2A is an individual right.

But merely because the court didnt address other questions directly does not mean that suddenly they are going to happen. The Court is only one branch of gov't. Congress would still have to pass an AWB, the president would still have to sign it. Those things haven't happened in the last 12 years and they aren't likely to happen for the next 12 either. ANd they are less likely now with Heller, which simply adds to the pro-gun momentum we've seen over the last decade or so.

Rabbi, yes the political process will be at work. But, many state legislatures have been waiting to see where the line was drawn before going after the "assault weapons" and "high cap magazines." Although they would have liked to win this case, I think they are quite happy with the rope Scalia left them. Like I said, I just don't have much confidence in our politicians. The "pro-gun momentum" could be a false hope. There are a great number of people that support this decision but also do not think we should have ARs and AKs. I was never worried about my handgun, but I am even more concerned about my AR (and all the ARs I was planning on buying -- I'm stocking up ).

[Guest slothful1]

I hopes for the decision were to expressly state that owning firearms (not just firearms "usually possessed by law-abiding citizens") is a right... he should have stopped right there. There was no reason to then say "usually possessed by law-abiding citizens."

It also seems rather circular of Scalia to justify longtime existing restrictions (on machine guns, for example) by saying that those weapons are not in common use. Of course they're not in common use -- they've been severely restricted for a generations. If a nationwide ban on handguns was imposed & enforced for decades, then handguns would not be commonly possessed either, but that wouldn't somehow retroactively justify the ban.

[Guest gcrookston]

What difference does the vote make? WHat was the vote in Brown? In Griswold? In Roe?

(Brown was unanimous, both Griswold and Roe were 7-2.)

Agreed. This was a constitutional issue and a majority resolved to understand exactly what the founding father's proposed with the 2nd amendment and dictate to the country the results of their interpretation.

At issue was the individual's right to own a handgun. The court, by a majority, agreed that the 2nd amendment, although poorly punctuated, sets forth that right.

Now watch DC institute restrictive ownship requirements. As I read it, the requirements must be "reasonable". This will cause yet another flurry of suits.

But the path has been cleared and the interpretation of the 2nd amendment has been established. They anti-gunners have their strongest argument yanked out from under their platform and the proverbial snowball for gun owner's rights has been loosed.

June 26, 2008 was a Red Letter Day for gun owners.

Edited June 27, 2008 by gcrookston

[The Rabbi]

Rabbi, yes the political process will be at work. But, many state legislatures have been waiting to see where the line was drawn before going after the "assault weapons" and "high cap magazines." Although they would have liked to win this case, I think they are quite happy with the rope Scalia left them. Like I said, I just don't have much confidence in our politicians. The "pro-gun momentum" could be a false hope. There are a great number of people that support this decision but also do not think we should have ARs and AKs. I was never worried about my handgun, but I am even more concerned about my AR (and all the ARs I was planning on buying -- I'm stocking up ).

Which state legislatures have pending AWB legislation that was put on hold until Heller? Please name them. Cite sources.

Any state wanting AWB type legislation already has it. The ones that don't don't want it.

Heller was never about AWB. Ergo it makes no sense to say that anyone was waiting for an outcome before proceeding with an AWB.

[G27]

It also seems rather circular of Scalia to justify longtime existing restrictions (on machine guns, for example) by saying that those weapons are not in common use. Of course they're not in common use -- they've been severely restricted for a generations. If a nationwide ban on handguns was imposed & enforced for decades, then handguns would not be commonly possessed either, but that wouldn't somehow retroactively justify the ban.

Well, I guess it depends on what he meant by 'use' (in 'common use'). Even amongst full automatic weapon owners, I'll bet only a small percentage of those owners actually us them commonly. A rifle that is used for hunting or a pistol that is used for SD will be used far more commonly.

Dunno, just thinking aloud here...

[Marswolf]

However, to me, "bearable arms" would include NFA weapons. While it would also likely include (in my definition) grenades, rocket launchers, etc., I think citizens have a right to those as while (obviously, with some serious restrictions similar to the current NFA restrictions). I think the RIGHT would extend to any arms that are, in fact, capable of being "beared" by a citizen. That would leave other arms (tanks, nukes, howitzers, etc.) as being outside the RIGHT and subject to a complete ban -- i.e., you just cannot have them. (I guess you'd have to get into the difference between "arms" and "explosives" to really evaluate this, so I won't do that -- aren't you glad?!?!?)

I have to disagree with you on this - sort of. I think 2A grants a right to have pretty much any "arms" you choose. After all, one of the purposes of the amendment was to let citizens have firepower to overthrow a repressive government. I see these restrictions on arms you can have to be unconstitutional.

Now for practical as well as philosophical reasons, I don't think citizens should be able to have a lot of military weapons. But the solution shouldn't be some back door unconstitutional banning of these weapons. I see the 1934 NFA as unconstitutional. I understand that Justice Alito agrees with me.

The solution should have been amending the Constitution to define what arms a citizen may legally possess. I suspect that if this had been done in 1934, we would have reasonable restrictions on holding military type weapons and would have headed off the individual gun restrictions the gun grabbers are doing today. Unfortunately, I don't think we could get a reasonable amendment through these days. That window has closed.

[Guest slothful1]

Well, "common use" was my wording, not necessarily Scalia's. I just meant being in common circulation (being bought & sold among individuals).

[TGO David]

Merging a few more Heller threads into this one.

[The Rabbi]

I have to disagree with you on this - sort of. I think 2A grants a right to have pretty much any "arms" you choose. After all, one of the purposes of the amendment was to let citizens have firepower to overthrow a repressive government. I see these restrictions on arms you can have to be unconstitutional.

Now for practical as well as philosophical reasons, I don't think citizens should be able to have a lot of military weapons. But the solution shouldn't be some back door unconstitutional banning of these weapons. I see the 1934 NFA as unconstitutional. I understand that Justice Alito agrees with me.

The solution should have been amending the Constitution to define what arms a citizen may legally possess. I suspect that if this had been done in 1934, we would have reasonable restrictions on holding military type weapons and would have headed off the individual gun restrictions the gun grabbers are doing today. Unfortunately, I don't think we could get a reasonable amendment through these days. That window has closed.

I tend to disagree.

Bear arms seems to refer to personal weapons. That is, rifles, pistols, and shotguns. A crew served weapon wouldn't fall into that category.

But it is not an either/or proposition. Just because something enjoys a certain level of constitutional protection does not mean anything else is prohibited. The Constitution grants protection from government action, it does not mandate gov't action.

[midtennchip]

Which state legislatures have pending AWB legislation that was put on hold until Heller? Please name them. Cite sources.

Any state wanting AWB type legislation already has it. The ones that don't don't want it.

Heller was never about AWB. Ergo it makes no sense to say that anyone was waiting for an outcome before proceeding with an AWB.

Illinois, for one. http://illinoischannel.spaces.live.com/blog/cns!B0DB128F5CD96151!527.entry

I also suspect states like Maine, Maryland, Massachusetts, Minnesota, Ohio, and Pennsylvania may reintroduce their bills (all of which have had pending AWBs pending in the past 3 years). Again, polilitical process, not judicial, but scary nontheless.

Also read this. Maybe it will point out the "exceptions that swallow the rule" that could arise:

http://volokh.com/archives/archive_2008_06_22-2008_06_28.shtml#1214522143

- may be overreacting, but we'll see. This issue just isn't as simple as most people think.

[Guest canynracer]

That's actually a bad sign. A 7-2 would mean they had to build consensus by compromising. That would mean an affirmation of an individual right, but not much more than just striking down the outright ban. It would leave virtual bans, like in NYC, intact.

What difference does the vote make? WHat was the vote in Brown? In Griswold? In Roe?

(Brown was unanimous, both Griswold and Roe were 7-2.)

[Marswolf]

Bear arms seems to refer to personal weapons. That is, rifles, pistols, and shotguns.

I just don't see that in the document. I don't think one can reasonably limit arms to those that existed at the time of the ratification of the amendment or that one could carry. I guess I just define arms more generally, but the definitions I find basically just say "weaponry". As one definition specifically pointed out, ICBMs, bombs, and other nuclear devices are all arms.

I just have a problem with eliminating rights by playing with the definition. Just like DC now plans to say that pistols are not arms, but revolvers are. If you start playing their game, you've already lost.

[The Rabbi]

I just don't see that in the document. I don't think one can reasonably limit arms to those that existed at the time of the ratification of the amendment or that one could carry. I guess I just define arms more generally, but the definitions I find basically just say "weaponry". As one definition specifically pointed out, ICBMs, bombs, and other nuclear devices are all arms.

I just have a problem with eliminating rights by playing with the definition. Just like DC now plans to say that pistols are not arms, but revolvers are. If you start playing their game, you've already lost.

You just have to look through Scalia's decision and the sources he quotes in English common law. Everywhere where right to bear arms is mentioned, it is talking about small arms.

They certainly had cannons and mortars at the time of the 2nd. But no one uses a cannon for personal protection.

The definitions are crucial in any discussion. What is the definition of libel? What is the definition of state secret? All our rights hinge on these things.

[Guest jwp]

This is good for a laugh.

[ame]

[/ame]

[The Rabbi]

Illinois, for one. http://illinoischannel.spaces.live.com/blog/cns!B0DB128F5CD96151!527.entry

I also suspect states like Maine, Maryland, Massachusetts, Minnesota, Ohio, and Pennsylvania may reintroduce their bills (all of which have had pending AWBs pending in the past 3 years). Again, polilitical process, not judicial, but scary nontheless.

Also read this. Maybe it will point out the "exceptions that swallow the rule" that could arise:

http://volokh.com/archives/archive_2008_06_22-2008_06_28.shtml#1214522143

- may be overreacting, but we'll see. This issue just isn't as simple as most people think.

You've shown states that had pending AWB legislation. I didnt see Heller mentioned anywhere.

As for the Volokh piece, gov't can conceivably do almost anything it wants once it becomes unresponsive to people. Look at Zimbabwe, where judges who oppose the regime are simply kicked out, leaving others who are more compliant. I would not put my faith in a Supreme Court ruling to guarantee my rights. I have often said rights are guaranteed by society generally. This is no different.

[Marswolf]

They certainly had cannons and mortars at the time of the 2nd. But no one uses a cannon for personal protection.

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.

I don't see nothin' in there about no stinkin' personal protection.

[The Rabbi]

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.

I don't see nothin' in there about no stinkin' personal protection.

There;s nothing in there about a right to privacy either. Do you want to say you have no right to privacy?

[Smith]

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.

I don't see nothin' in there about no stinkin' personal protection.

while I agree, in the historical context (which they are using) militia's didn't have artillery, grenadiers, calvary, etc. So I doubt that would survive a ruling.

[towerclimber37]

I Think privacy laws came about when the jackalopes with no common sense put restrictions on the 2nd amendment and those good natured folks with firearms could no longer shoot the idiots for getting into their business...

just my take on it.