Supreme Court Roundup (Part One)
As most of you know the Supreme Court has been fairly busy the last few days handing down a series of rulings. I had hoped to post a little of my very amateur legal comments on the decisions but have been somewhat swamped by work lately so I haven’t had a chance to post until now.
Since it just came down today I thought I would start with the Heller decision (more properly District of Columbia v. Heller). This was another 5-4 ruling with the court liberals (Breyer, Ginsberg, Stevens and Souter) on one side and the court conservatives (Thomas, Scalia, Alito and Roberts) on the other. As usual middle justice Anthony Kennedy provided the swing vote.
In this case he swung to the conservative side in helping to strike down the District of Columbia gun ban which had been in place since 1976. The suit was brought by Dick Heller, a security guard who was denied his application to keep a gun at his home in the District. Six others also joined as plaintiffs but Heller is the name we will remember.
In striking down the law, Justice Scalia stated that the basic right for individuals to keep and bear arms for self protection is protected by the 2nd Amendment. He rejected the argument by supporters of the law that the words ‘well regulated militia’ in the amendment meant that the right was only connected to military service.
His opinion goes into great detail, breaking down the words of the amendment part by part to support the position that the purpose is to protect gun ownership rights by individuals and that since the purpose of the right is, at least in part, to defend people against an oppressive government it would be illogical to then assume the right could only be exercised through the government (IE a formal government militia).
He also points out that at the time the amendment was adopted that militia had a much looser meaning, applying simply to the concept that the men of a given community would be expected to come to the defense of the citizenry in case of emergency, such as attacks by Natives.
The dissenting opinion by Justice Stevens takes a narrower view, interpreting the term militia in a more modern formal sense, saying that it applies only to legally recognized organizations such as the National Guard or a State (ie government) organized body.
Regardless of my personal views on the merits or flaws of private gun ownership, I would tend to side with Scalia on this debate. As he points out it would be ridiculous to say that on the one hand the 2nd amendment right is there to protect against an intrusive government but then to say that the only way to exercise that right is with government permission.
Of course this is just a cursory review of the opinions and I would urge you all to go to the various web sites to read it for yourself, I will be offering a more detailed analysis this weekend.
However it is also worth noting that the ruling really does not change that much. The DC law was pretty much an absolute ban on gun ownership, about as restrictive as you can get. The majority opinion makes it clear that they do NOT intend to strike down any gun restrictions, only ones as absolute as the DC law.
The court has previously affirmed laws that required gun licenses or waiting periods, as well as banning felons or the mentally ill from owning guns. They have also supported laws that restricted gun possession at schools or other public buildings. The ruling makes it clear that these positions still stand.
So if you have a local law that requires applications, permits, waiting periods and the like, it is unlikely anything will change. Guns will not be carried into schools or courtrooms, nor will the unstable be allowed to own them.
So as is often the case, the actual impact of the ruling is not nearly as broad as the hype suggests, though it is clearly a major statement of 2nd amendment rights.
10 Responses to “Supreme Court Roundup (Part One)”
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What's shocking is that four Justices would dissent from the Second Amendment ruling.
What kind of justices would Obama and McCain prefer and promote?
It's a rare day that I side with Justice Scalia (whose “strict” interpretation of the Constitution has been inconsistent at best), but I'm in agreement with him on this particular issue. The right to bear arms has always been an INDIVIDUAL right (the same way freedom of speech, freedom of religion, and freedom of assembly are), and for Justice Stephens to argue that the Second Amendment only applies to militias is completely at odds with what the Founding Fathers intended. Even Alexander Hamilton (who was arguably the most “pro-centralized government” of the founding fathers) understood that the Second Amendment is an INDIVIDUAL right.
Obama's “position” strikes me as a non-position. He responded to the ruling with the following statement:
The D.C. gun ban wasn't simply a modest form of regulation intending to keep guns out of the hands of criminals…It was an outright gun that effectively deprived every person living in D.C. of their Second Amendment right.
If Obama truly believes that the Second Amendment protects the right of individuals to bear arms, then why doesn't he come out and say that he supports the Supreme Court ruling?
Well to me he did come out in support of the ruling. Expecting reasonable limitations is within the spirit of the ruling.
“If Obama truly believes that the Second Amendment protects the right of individuals to bear arms, then why doesn't he come out and say that he supports the Supreme Court ruling? “
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He did do exactly that.
The question about limitations, on this, as on any right, is still open.
We're not ttalking about absolute,any time, anyone, any weapon, rigths, much as the NRA would like to have us think so.
Refer to the ruling for a clear statement on that.
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The D. C. gun case is an EXCELLENT opinion from the High Court! OsiSpeaks.com
“The right to bear arms has always been an INDIVIDUAL right “
Yes, it has – in the opinion of some people, but others interpret the amendment differently.. The intent is what t the debate has been about, and stating it as fact does not make it so.
Today's' decision was a 5-4 OPINION , not an affirmation of fact, but an expression of majority opinion..
To state this as if it were fact is to assume a mindset like that of fundamentlist Christians for whom their interpretation of the Bible is also fact.
What is most troubling is that the decision was reached on an ideologically abstract plane, without a moment's regard for the citizens of D.C or how this decision would affect them.
How many of those happy with this decision would welcome the SC coming to their neighborhood to tell them how to live?
I, for one one, don't welcome the increase in such callous attitudes and miss the days when consideration for others and their views had not yet gone out of style.
If you go by original intent– the 2cnd amendment only protects gun owners rights as part of a militia. Citizens were never intended to stockpile weapons in their homes.
Nic: The right to bear arms has always been an INDIVIDUAL right.
Runasim: Yes, it has – in the opinion of some people…
Nic: Yep…those “some people” being the ones that wrote the U.S. Constitution.
You're entitled to your own set opinions but not your own set of facts. The Framers of the Constitution fully intended the Second Amendment to be an INDIVIDUAL right, not a COLLECTIVE right.
“If you go by original intent– the 2cnd amendment only protects gun owners rights as part of a militia. Citizens were never intended to stockpile weapons in their homes.”
They were certainly intended to be able to have weapons in their homes, which hardly would constitute “stockpiles.” The right to keep and bear arms (addressed separately in the Amendment, in a separate clause) is an individual right; this is a fact, not an opinion. The reference to the militia is the rationale (among others) chosen for the “why.” (It is language similar to that used by state governments at the time.)
Those who wrote and ratified the words are those who define their meaning. Despite decades of doing it, liberal activists have never been able _legitimately_ to say that nowadays the word “red,” or other words used in its place whose meaning is fully understood from the context, such as “crimson” or “scarlet,” now means green. You make such statements every day, because it's what you prefer, but it is not correct and it is not right.
This ruling was refreshing common sense as well as obviously correct.
Note the nature of the negative reactions to it, and of those who object to it!