Posted on 06/28/2008 2:11:52 PM PDT by Congressman Billybob
Everyone who has a TV, a computer, a newspaper, or a radio, knows that the Supreme Court handed down its decision in the Heller case on Thursday, ruling that the Second Amendment provides a personal right to "keep and bear arms." Therefore it struck down the District of Columbia law that has banned citizens from owning new handguns after 1976. But the case is much more important than that.
Cases concern more than just the parties involved. The Heller decision will affect the rights of millions of Americans to protect themselves, their families, and their homes. But the “why” of a Supreme Court decision has far more importance than the “what” or “who.” The logic of the decision will live on, and can apply to cases that have nothing to do with the facts of the current case.
An object lesson comes from the very first case ever decided by the Court, The Schooner Peggy. That case concerned whether a French ship, captured by a American privateer, was properly awarded to the captor. For centuries, we have had no more privateers. We are now fully friends with the French. Still, in 1976 I cited that case in a Circuit Court case, and it was ultimately used in the Supreme Court as dispositive in an attorneys fee case out of Richmond.
How did that happen? Well, the “why” of the Schooner Peggy is that when the law changes between the trial in court and the Supreme Court review, the Court must follow the new law, even though the trial court was correct when it made the original decision.
Exactly the same will, I think, apply to the Heller case in the years and decades to come.
Heller was a 5-4 decision, and the majority Opinion by Justice Scalia had very harsh words for the two Dissents by Justices Stevens and Breyer. The divisions among the sides were harsh, and identical. Scalia’s Opinion was joined by the Chief Justice, and Justices Kennedy, Thomas and Alito. Both Dissents were filed for all of the remaining Justices, Stevens, Souter, Ginsburg and Breyer.
Here are some of the charges leveled by the Opinion against the Dissents: “Justice Stevens is dead wrong to think that the right to petition [First Amendment] is ‘primarily collective in nature.’ ” “Justice Stevens flatly misreads the historical record.” “Justice Stevens suggests that ‘there is not so much as a whisper’ in [Joseph Story’s Commentaries on the Constitution] ... that favors the individual-rights view.... That is wrong.’
“Justice Breyer arrives at his... answer: because handgun violence is a problem,... the law is limited to an urban area,.. there were similar restrictions in the founding period (a false proposition...),... [therefore] the interest-balancing inquiry [means] the handgun ban is [constitutional].”
Here are some of the charges leveled by the Dissents against the Opinion: From Stevens, the Opinion lacks “respect for the well-settled views of all of our predecessors on the court, and for the rule of law itself.” From Breyer, “The majority derides my approach as ‘judge-empowering....’ I take this criticism seriously, but I do not think it accurate.”
In the normally polite environment of Supreme Court decisions, these charges are the equivalent of calling each other dishonest at gathering and using legal sources, and even incompetent as judges. The simple truth is that one side in this war of words is correct, and the other is dead wrong. And what that says about the future of the Court and the Constitution is truly important.
To my view, the majority Opinion is a textbook on how to understand, obey and enforce the Constitution, that is, as it describes itself, “the supreme Law.” Like all laws, its meaning is determined by those who wrote it. For the Constitution, the writers were the drafters in Philadelphia, followed by the ratifiers in the states.
Do not take my word for it. The Opinion and both Dissents are on the Internet. Laymen can understand most of the text. If more cases on any subject use the logic of the Heller case, the Justices will be more honest, and the Constitution will be safer.
The problem in reaching that result is that the next President of the United States will probably name at least two, as many as four, new Justices to the Supreme Court. I, for one, consider the nomination of new Justices to be an overriding consideration in the 2008 election.
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About the Author: John Armor practiced law in the US Supreme Court for 33 years. He now lives in Highlands, NC, and is working on a book on Thomas Paine. John_Armor@aya.yale.edu
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According to the book, The Brethren, there was exactly one instance when the circulation of opinions caused one Justice to change his mind, which resulted in a change in the whole verdict from 5-4 one way, to 5-4 the other way.
Especially when the divisions among the Justices are very strong, and their criticisms are particularly harsh, you will see cross references like those in Heller. Think of two children squabbling in a sand box, "Did so. Did not. Did so." Now, give both of them advanced degrees and huge vocabularies. What you get is what you see in Heller.
John / Billybob
John / Billybob
But you're right. Sometimes lawyers ARE a little scary, like they lived in an alternative universe. LOL.
John / Billybob
While I relish this victory, anger and rage still remain due to that fact.
I sure would like to see a case brought which would challenge the objectivity of journalism and, on that basis, delegitimate first McConnell v. FEC and ultimately Buckley v. Valeo
Spot on!
Scalia wrote in effect that D.C.’s laws couldn’t pass any level of scrutiny, IIRC. What does that mean for us peons? Is that in effect strict scrutiny?
That's why you and I both cancelled our subscriptions to these liberal rags years ago. That's why neither of us tunes into Dan Rather and his ilk on the broadcast stations.
The liberal media is suffering a staggering decline in readership and viewership and the two of us need to continue encouraging others to join us in starving the liberal media to death.
Beast, don’t know much about the urban setting, but I’d have to say this isn’t the case in the rurals of the north where where they breed the new State Police troopers.
Fee,
1 gun a month-bill A339- passed a few days before the Heller decision.
Don’t feel sorry for us, just donate some bucks to the NRA or GOA on our behalf.
We have a huge uphill battle in this state and its going to take a lot of lawsuits to take back our rights here in NJ.
“He said he would”
Sorry, Mac’s dangerous, a liar and a traitor and is/has been on a personal mission to discredit and stamp out conservativism. Not trustworthy when considering judicial nominations, the record would seem to predict.
The one and only reason I will vote for him to be the next CIC is what I hope will be military strength.
There is a guy in Millburn, NJ who had his guns and 2nd amendment rights taken away during a divorce when his wife charged him with domestic violence. We incidentally owe the despised and superannuated late Frank Lautenberg, Senator from NJ for this law. Even though his ex later admitted it was a false charge, the poor guy wasn’t able to get his guns or rights back.
I agree....and I like that couple of drinks part!
I fear the Mayors will Paraphrase Andrew Jackson : Scalia has made his decision, now let him enforce it. We gunnies will have to fight every block to have this decision have any effect. Talk about urban warfare. Farah said today, that the best reaction would be to buy guns. Like Churchill said, its guns or butter,or gasoline or food. Thats why we need to DRILL NOW!
barbra ann
I've seen past opinions, typically dissents, by Scalia where he engages in sarcasm against the "liberal" reasoning of the other side. In this case, however, he completely dispensed with sarcasm, and basically just blasts Stevens and Breyer -- is this an indication of the heatedness of this specific case, or is it a more fundamental division between the two main "wings" of the Court?
John / Billybob
Just got a call from the Star-Ledger to confirm authorship of my letter. Maybe it will be printed some time this week.
Respectfully, everyone is assuming that this case was much bigger than it really is. Yes, the “ban” is gone, but will the new restrictions be any less?
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