*LIVE THREAD* DC vs Heller decision due at 10:00 EST (2nd Amendment)

SCOTUS Blog ^ | 6-26-08 | shameless vanity

[RKBA Democrat]

Today is the day.

The folks at SCOTUS blog will be providing a live blog to follow developments as quickly as possible.

[patton]

Exactly - and, what Miller ignored, is that a sawed-off shotgun is BOTH a military weapon (”Trench broom”), very common in war, AND a highly-effective (and SAFE) means of home defense.

The 17.99 argument is a discussion for another thread - because it is wrong. EG, the VASC ruled a breathalizer is not evidence of impairment, for DWI purposes.

[redgolum]

Glad I was wrong. I thought it would fall the other way.

But while this is a victory, it is a small one. It remains to be seen just how the details will be worked out. As one thread comments on, the mayor of DC is still saying he will ban all “semi auto” pistols.

While on the face of it, you can’t do that, it will basically reset the whole case from the start.

[patton]

Haven’t read the dissent, yet. Need liquid courage, first.

[patton]

I see that you understand the problem.

[Arkinsaw]

Scalia had fun with this (e.g., "Grotesque"), but it's weaselly at times, too.

Scalia spent a lot of time on this one. It was much longer than I thought it would be, and I believe much longer than necessary.

Let's face it. Everyone knows what the 2nd Amendment means and what the founders intended and HOW IT HAS ALWAYS BEEN ACCEPTED IN THE NATIONAL CONSCIOUSNESS. Scalia knows it, you know it, Sarah Brady knows it, and Diane Feinstein knows it. The anti-gun positions have been developed OVER TIME more as an attempt to create a reality rather than describe one.

The only people who might not know it are the moonbat followers who have convinced themselves of the fig leaf "militia" argument and are "true believers" of the dogma without much actual rational consideration of it.

Diane Feinstein and Sarah Brady are not morons, they know they are trying to create a new reality via word-smithing and not describing what is and has been.

Scalia did have fun with it....using similar word-smithing and parsing to poke holes in the anti-gun dogma. It was entertaining, and well deserved, but I'm not sure that its a good idea in the long run. A much shorter and to the point refutation of the alternate reality would probably stand the test of time better and provide fewer seams to pry at. The word-smithing game makes it easier for the other side to crack open your actual argument later.

[4Liberty]

Annie Oakley.

[Gondring]

[...] whining to the TV cameras about how there are already so many guns on the streets [...]

From United States v Miller:
And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

Every time a gun-grabber whines aobut the "high-powered weapons" that are so "common" these days, we should get a recording of it and archive it...for use in demonstrating that many "evil" weapons are "in common use," and therefore protected. :-)

[Arkinsaw]

While on the face of it, you can’t do that, it will basically reset the whole case from the start.

We should take what we get for now. It is much better for anti-gun forces to be spending time and resources in court trying to pick away at this ruling rather than our side trying to pick away at their win.

This really does cause the anti-gun folks some problems. Big ones. The cats are out of the bag and they will have to start working to get them back in. A huge change of pace from the previous work of "consolidating their position".

Since it has been positively affirmed as an individual right, it opens the door for having to defend against "onerous" restrictions of an ESTABLISHED right. That's a big change and likely to be time-consuming an expensive.

It shakes up the "settling" of the law and guarantees years of court cases to feel this ruling out.

State legislatures, localities, and various Attorneys General will no longer be so clear in what they can do and may behave more conservatively. They will probably be less likely to follow in lockstep with the "advice" of anti-gun activists.

Whether its as broad a ruling as was wanted or desired is for tomorrow. Tonight, be happy that your individual right to keep and bear arms has been affirmed by the highest court in the land and that for the first time in US history the anti-gun forces have an actual precedent to overcome.

[Gondring]

Diane Feinstein and Sarah Brady are not morons, they know they are trying to create a new reality via word-smithing and not describing what is and has been.

Agreed. It's definitely deliberate "misunderstanding" on their part. Scalia did have fun with it....using similar word-smithing and parsing to poke holes in the anti-gun dogma. It was entertaining, and well deserved, but I'm not sure that its a good idea in the long run. A much shorter and to the point refutation of the alternate reality would probably stand the test of time better and provide fewer seams to pry at. The word-smithing game makes it easier for the other side to crack open your actual argument later.

Agreed.

But then again, Justice Scalia required some word games to get his "restrictions" message in there, too.

[redgolum]

Whether its as broad a ruling as was wanted or desired is for tomorrow. Tonight, be happy that your individual right to keep and bear arms has been affirmed by the highest court in the land and that for the first time in US history the anti-gun forces have an actual precedent to overcome.

You are right. I honestly had plans to spend a lot of money today if things went wrong. But I am trying to voice a little caution.

This was ONE case. There are thousands of laws that are de facto bans that will still stand after this case.

[Darren McCarty]

McCain will appoint another Souter just like Papa Bush did

And you know this for a fact?? Did McCain say this?

[Centurion2000]

One comment I will make so far is that a search of the opinion indicates zero mentions of Letters of Marquee and Reprisal. Interesting, that.

Good point. Guess he didn't want to open the heavy weapons up.

[Jotmo]

I hate to have such a negative outlook, but I've been thinking the same thing all day.

One example is that every news story I've read states that the ruling affirmed the right to keep a gun in your home. They are always very clear to point out the "in your home" part. This ruling scares the hell out of me.

As I read it, it basically said "Sure, you have aright to own a gun, and keep it in your home for self defense, but the government can regulate, license and restrict what type of gun, under what circumstances you can purchase one, and where, or indeed IF you can take it anywhere else, so long as it's not an outright ban.

So conceivably, they could pass a law stating you can only have a single shot black powder pistol, and it must never leave your home loaded.

Am I wrong?

Before we could at least argue that many of theses restrictions were unconstitutional. But this ruling has basically enshrined many of them.

I just don't see how this is a win for us.

I don't see how this stops the government form making any restrictions on firearms they wish, as long as it falls short of a complete ban.

I hope the future proves me wrong, but I just don't see it.

[Darren McCarty]

expect that this will have little to no practical effect on restrictive CCW laws. I see where you might be able to say that “possess and carry” can be extended into shall-issue CCW—I sure would—but I seriously doubt other courts are going to see it that way.

There may be a shot, albeit a VERY long shot on OPEN carry, but CCW is much less likely. CCW has only really been acceptable in the last 20 years. Open carry was considered the honest way and concealed carry the criminal's way. Today, CCW is much more acceptable.

As for Heller addressing that, it doesn't. It wasn't challenged in court, so it can not be addressed (that's at least how it is supposed to be). All that was challenged was the total DC ban (at the federal level) itself.

[Arkinsaw]

This was ONE case. There are thousands of laws that are de facto bans that will still stand after this case.

Thats true of course...but the difference is that yesterday they stood without debate....after today they will be challenged and anti-gun forces will be spending a lot of time, money, and effort in defending them rather than instituting new ones.

[patton]

“Oy - are you F’n nuts? This is clearly an infringement, go pound sand.” ...would have sufficed.

Unfortuneately, I am not on the USSC. And not likely to be, LOL.

[Darren McCarty]

Does this mean that the state and local governments can still make any law they want that restricts our Second Amendment rights?

That remains to be seen. Incorporation wasn't a factor here so it was not addressed. That will have to come from Chicago or New York's version of Heller.

[Darren McCarty]

I live in Chicago. How would the challenge process start?

First you need standing to sue. That means a wrong has to directly be committed against you. An arrest for having a gun is the most obvious, and I do not recommend that approach at all.

What are the FOID cards in Illinois and how does that system work? If you can get ahold of Bob Levy at the Cato Institute, that's the guy to talk to about this if you are serious about challenging, or know someone who is serious. The right test case can make the difference between winning or losing. If Heller was a stereotypical "gun nut", he'd lose.

[Darren McCarty]

I know that John McCain might give us Justices like that, and as hard as it is to hang your hat on a "might", I also know that Barack Obama will give us more Breyers, Ginsbergs, and Souters - at best. Scary thought, that.

I agree. 5-4 with Kennedy as the 5 is too close for comfort. Add the fact that the dems could get 60 senators after November, and we need at least one check.

[Gondring]

Hoipe you've imbibed your courage, as I see that Justice Breyer also caught Justice Scalia's circular reasoning! Wow, to find myself agreeing with J. Breyer?!?

IMO, this is a very important point. But the contradiction and circular argument are set up by the fact that Justice Scalia tries to argue first from logic and fact (which supports the individual right), but then tries to temper it with unsupportable restrictions (the PC thing to do, a la the Bush Administration).

Nor is it at all clear to me how the majority decides which loaded “arms” a homeowner may keep. The majority says that that Amendment protects those weapons “typically possessed by law-abiding citizens for lawful purposes.” Ante, at 53. This definition conveniently excludes machineguns, but permits handguns, which the majority describes as “the most popular weapon chosen by Americans for self-defense in the home.” Ante, at 57; see also ante, at 54–55. But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun. On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous selfdefense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.

But America will continue to drink the Kool-Aid, believing that the Second Amendment is just fine if we have "reasonable" restrictions, and that the Framers intended us to use just hunting rifles to protect ourselves against government tyranny.

Of course, if M-16s were fully legal and unrestricted, I have no doubt they would be in common possession at home--and thereby protected. (The "dangerous and unusual weapons" argument he gives holds no water, IMO, since as far as I can see, the "dangerous and unusual weapons" retriction is far beyond what was in use to fight an abusive government. Admittedly, though, I don't have Blackstone in the 1769 edition! :-)