We dodged a bullet - BIG TIME!

vanity | June 26, 2008 | neverdem

[neverdem]

If the title isn't the understatement of the day, please show it to me. The universal right to self defense as recognized by an individual right interpretation of the Second Amendment depended on Justice Anthony Kennedy in a 5 - 4 decision. I was disappoined in Ginsburg and Souter considering their opinions in Muscarello.

It was a clean decision. Fears that it would create new infringements were proven unfounded. All of D.C.'s infringemnts at issue were declared infringements, nothing more, nothing less, and struck down. D.C. was told to deal with it. "We affirm the judgment of the Court of Appeals. It is so ordered."

All of the other infringements around the country, licensing, registration, concealed carry bans, handgun prohibitions, de facto machinegun bans, felon and nutjob bans, etc., were left standing. We still have a long road to hoe. I expect the "open carry" movement to spread around the country, especially in places that prohibit concealed carry or have "may issue" concealed carry privileges. I also believe paying for licensing and registration will become an issue. You don't pay for a right.

Good God! The Lord works in mysterious ways. I didn't think it would be that close. If you are an atheist or agnostic, please reconsider. My prayers were answered.

DISTRICT OF COLUMBIA v. HELLER This pdf link is where I read the majority decision. It's the first 64 pages by their count, 67 pdf pages on my computer. The remainder are the minority decisions. The following are HTML links to the Syllabus of the decision and the majority decision, respectively.

DISTRICT OF COLUMBIA v. HELLER

DISTRICT OF COLUMBIA v. HELLER

Comment# 1 is a serial collection of excerpts of text, referenced blockquotes and footnotes that grabbed me. If you haven't read a Supreme Court decision, take a gander at my excerpts. The history is beautiful. (Pardon the spelling errors from words being fused in the translation from the pdf to HTML.)

The majority took the minority apart point by point, up close and personal! They took on by name Ginsburg, Stevens and Breyer. Souter was mum. I'd like to see the minority impeached. They were supposed to defend the Constitution, not castrate it.

[Dead Corpse]

I'd like to see the minority impeached. They were supposed to defend the Constitution, not castrate it.

If McCain runs on this premise, he has my vote. Hands down. Even with all his other warts.

[Blood of Tyrants]

I disagree. He went to great lengths to accurately define the 2nd Amendment but when he got to the “shall not be infringed” part, he failed utterly by basically declaring that everything but an outright ban does not constitute infringement.

[antisocial]

Bump for an outstanding post!

[Matchett-PI]

"You want scary, consider what will happen if Obama-dama is elected and proceeds to stack that court with his favorite folks. We've already seen that it doesn't bother those twits one bit to revisit and usurp precedents."

Unless McCain has coattails (or Obamamesiah has coat-tails in reverse when he's rejected in Nov.), it won't matter who he nominates for the SCOTUS, the 'RAT _majority_ in Congress will stack the court with whomever they want. They won't even allow a strict constructionst to come to the floor for a vote.

And even if McCain vetos the bills they send him, they will have the numbers to override his vetos.

There is no better reason to vote a straight Republican ticket in the fall even if we have to risk voting for a RINO and rejecting a "conservative" DemocRAT who may be running against him.

We have the chance to keep the RINO in line, but we would have _no chance_ to influence a "conservative" 'RAT, who will be FORCED to vote the way Pelosi and Reid tell him/her to vote.

Those who voted for "conservative" 'RATS in 2006 got what they inadvertantly asked for. They were voting for Pelosi and Reid in reality.

Have these numbnutz learned anything yet?

I hope so, because the '08 election will be one of the most important elections in the history of America. It will determine whether or not we are going to allow the 60's radicals to take complete control of America as they have already taken complete control of the 'RAT party.

[Hat-Trick]

Thanks for these great excerpts. I really like Justice Scalia's note #5 beginning on page 8, continuing to page 9:

5 JUSTICE STEVENS is of course correct, post, at 10, that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined “assembly,” as he contends the right to bear arms is conditioned upon membership in a defined militia. And JUSTICE STEVENS is dead wrong to think that the right to petition is “primarily collective in nature.” Ibid. See McDonald v. Smith, 472 U. S. 479, 482–484 (1985) (describing historical origins of right to petition).

[Dead Corpse]

Actually, if you read it, Scalia set up information for exactly those arguments to be pursued. Bringing them up now went WAY beyond the scope of the ruling and into "activism" range.

There is plenty in the Heller ruling, and in other rulings from past cases about 1st, 4th ,5th, etc... Rights that we can use in other Cases to get incorporation, over turn licensing requirements, and quite possibly the '34 NFA/'68 GCA/'86 FOPA crap.

[archy]

We dodged a bullet - BIG TIME!

If the title isn't the understatement of the day, please show it to me.

Well, you're right, of course. But it may also be just as true to say that they're the ones who dodged the bullet. Or at least delayed it a bit.

We shall see.

[archy]

I'd like to see the minority impeached. They were supposed to defend the Constitution, not castrate it.

If McCain runs on this premise, he has my vote. Hands down. Even with all his other warts.

More precisely, if I believed that McCain would appoint Supreme Court Justice nominees who would defend the Constitution, he'd have my vote. But to date, I do not see that this is the case, and it appears more likely that McCain would back the globalist move instead.

[neverdem]

“We the People” won half a loaf—recognition of the individual right to keep and bear arms, but not the other half, which is the level of scrutiny by the courts over any attempt to restrict that individual right. Obviously, it should be a “strict scrutiny.” but if the liberals prevail in the presidency, Congress and eventually in the courts, they may set an individual level of scrutiny or even an enhanced level of scrutiny, thus allowing more and more restrictions by federal, state and local governments on the individual right to keep and bear arms.

You made a very interesting point. Here are the comments from the decision about scrutiny that I could find using the "edit" function of my browser.

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.

Justice Breyer moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 10. After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED(Latin for "which was to be proved." Webster's New World Dictionary of the American Language, Copyright 1964)

This is a very important point, especially for the lawyers. Correct me if I'm wrong. If I goof, tell me about it. I'm just an old student, willing to learn. IMHO, Scalia is saying the right of self defense trumps any level of scrutiny that you want to apply. Therefore, this is strict scrutiny. Scalia is smart enough not to rub their noses in it.

[neverdem]

See comment# 89. With all of the other hubbub, I think we got strict scrutiny yesterday, but it was just applied to the D.C. laws in question.

[ModelBreaker]

This is a very important point, especially for the lawyers. Correct me if I'm wrong. If I goof, tell me about it. I'm just an old student, willing to learn. IMHO, Scalia is saying the right of self defense trumps any level of scrutiny that you want to apply. Therefore, this is strict scrutiny. Scalia is smart enough not to rub their noses in it.

You are right about the level of scrutiny being important. But Scalia expressly refrains from setting one. He refers at one point to the fact that regulation may not be arbitrary and capricious. That's a pretty low standard in and of itself. But he did not set the standard, he said the DC gun ban did not pass any available standard. I suspect not setting a strict scrutiny standard was the price of Kennedy joining the majority opinion.

Under "strict scrutiny", almost no legislation would pass muster. Under Kennedy's, every gun-grabbing legislation would be constitutional.

So the scrutiny level is a victory we still have to win.

The other victory we have to win is to get the amendment applied to the states, the way the rest of the bill of rights has been applied as against the states. As it stands now, the 2nd amendment has nothing to do with a gun-grabbing piece of legislation passed by the CA legislature. It only applies to D.C. and to federal control of firearms. The wording of the amendment is "the rights of the people shall not be infringed" not "Congress shall make no law . . . " as in the first amendment. So the second amendment seems to me to explicitly cover action by States without resorting to the 14th amendment incorporation doctrine.

[ModelBreaker]

“Under Kennedy’s, every gun-grabbing legislation would be constitutional.” should be:

“Under Stevens’, every gun-grabbing legislation would be constitutional.”

[neverdem]

We agree to disagree. From the opinion:

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.

By using any, that means all. That means strict scrutiny is included.

[Chode]

trying to decipher all that lawyerese...

MAKES MY BRAIN HURT!!!

[El Gato]

Under Kennedy's, every gun-grabbing legislation would be constitutional

I think you mean either Bryer's or Souter's. Kennedy didn't write a concurrence. Bryer was the one who wanted the "balancing" by judges on a case by case basis.

[El Gato]

If McCain runs on this premise, he has my vote. Hands down. Even with all his other warts.

He's already ignored the Constitution. McCain Fiengold is an obvious violation of the first Amendment's "Congress shall make no law ... abridging freed of speech, or of the press".

[Dead Corpse]

Agreed. I’ve pointed out his obvious flaws to many. However, unless Barr or Baldwin really start making some waves here pretty quick, the GOP Cheerleaders will probably end up screwing us again...

[El Gato]

That's not what strict scrutiny means. Here are a few links which discuss strict scrutiny.

http://definitions.uslegal.com/s/strict-scrutiny/

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm

http://legal-dictionary.thefreedictionary.com/Strict+Scrutiny

From the last link:

---

The strict scrutiny standard of judicial review is based on the equal protection clause of the Fourteenth Amendment. Federal courts use strict scrutiny to determine whether certain types of government policies are constitutional. The U.S. Supreme Court has applied this standard to laws or policies that impinge on a right explicitly protected by the U.S. Constitution, such as the right to vote. The Court has also identified certain rights that it deems to be fundamental rights, even though they are not enumerated in the Constitution.

The strict scrutiny standard is one of three employed by the courts in reviewing laws and government policies. The rational basis test is the lowest form of judicial scrutiny. It is used in cases where a plaintiff alleges that the legislature has made an Arbitrary or irrational decision. When employed, the Rational Basis Test usually results in a court upholding the constitutionality of the law, because the test gives great deference to the legislative branch. The heightened scrutiny test is used in cases involving matters of discrimination based on sex. As articulated in Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), “classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives.”

Strict scrutiny is the most rigorous form of judicial review. The Supreme Court has identified the right to vote, the right to travel, and the right to privacy as fundamental rights worthy of protection by strict scrutiny. In addition, laws and policies that discriminate on the basis of race are categorized as suspect classifications that are presumptively impermissible and subject to strict scrutiny.

Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional. The government has the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result.

---

Since the second amendment is now “officially” an individual right protected by the Constitution. It would seem that strict scrutiny is the only appropriate standard.

[El Gato]

By using any, that means all. That means strict scrutiny is included.

I think that statement meant that the DC laws would fail even the lowest level of scrutiny, let alone strict scrutiny. Of course their is one key phrase in there:

any of the standards of scrutiny that we have applied to enumerated constitutional rights

Does anyone know of any other enumerated constitutional right that is not subject to strict scrutiny? I can't think of any. Hmm.

[neverdem]

Since I got no challenge from you, it seems you agree with me. We got strict scrutiny with Heller. Hallelujah! I’m still stunned by Ginsburg and Souter’s retreat from Muscarello. Thanks for the links.