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DC v. Heller: A Dismaying Performance By The Supreme Court
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2nd Amendment, Dc Gun Ban, Dc v Heller, District Of Columbia v. Heller, Heller Case, Heller Decision, Nra, Scotus, Scotus Blog, Scotusblog, Second Amendment, Supreme Court 2nd Amendment Case, Supreme Court Gun, United States Supreme Court,
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One can interpret today's decision in the Heller case from both "external" political perspectives or from a more "internal" legal one. I begin with the former: My own hope, which was spectacularly unrealized, was that the Supreme Court would unanimously accept the very well-written and -argued brief by the Solicitor General, in behalf of the Bush Administration, which argued both that the Second Amendment indeed protected an individual right to "keep and bear arms" and disagreed with the particularly rigorous test that the Court of Appeals for the District of Columbia had applied to the D.C. ordinance. Thus, according to the Solicitor General, the Court should remand the case back to the court below for reconsideration under a proper, somewhat looser, standard that would still have easily supported invalidating the ordinance.
Unanimous acceptance of his sensible view might have helped to diminish at least some of the culture war that has been waged now for at least four decades between advocates of "gun rights" and "gun control," who have their own interests in demonizing their opponents. Instead, the Court fractured along an all-too-predictable 5-4 axis, with the five conservatives supporting the rights of gun owners and the four liberals (or, more accurately, "moderates") seemingly supporting the most extreme version of gun "control," which is outright prohibition. The Solicitor General also offered a way for the Court to make sure that gun control would not become a key issue in this year's presidential race. Now there is no avoiding it, though, as a partisan Democrat, I confess to being relieved that the dissenters did not prevail, for the upholding of the D.C. ordinance would, in effect, have served as a massive in-kind campaign contribution to John McCain.
Then there are the "internal" features of the opinions, more interesting, no doubt, to lawyers (and law professors) than to pundits, but not without their broader interest. One of the most remarkable features of Justice Scalia's majority opinion and Justice Stevens's dissent (joined by Justices Ginsburg, Breyer, and Souter) is the view that the Second Amendment means only what it meant at the time of its proposal and ratification in 1789-91. Thus they spend a total of 110 pages debating arcane aspects of the purported original meaning of the Amendment.
If one had any reason to believe that either Scalia or Stevens were a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions are what is sometimes called "law-office history," in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other -- and, presumably, their colleagues who signed each of the opinions -- with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory. Justice Stevens, for example, writes that anyone who reads the text of the Second Amendment and its history, plus a murky 1939 decision of the Court, will find "a clear answer" to the question of whether the Second Amendment supports a "right to possess and use guns for nonmilitary purposes." This is simply foolish. Neither Scalia nor Stevens pays any real attention to a plethora of first-rate historical work written over the past decade that challenges this kind of foolish self-confidence.
What is especially ironic is that the strongest support for Scalia's position comes from acknowledging that the Second Amendment, like the rest of the Bill of Rights, has been "dynamically" interpreted and has taken on some quite different meanings from those it originally had. Whatever might have been the case in 1787 with regard the linkage of guns to service in militias -- and the historical record is far more mixed on this point than either Scalia or Stevens is willing to acknowledge -- there can be almost no doubt that by the mid-19th century, an individual right to bear arms was widely accepted as a basic attribute of American citizenship. One of the reasons that the Court in Dred Scott denied that blacks could be citizens was precisely that Chief Justice Taney recognized that citizens could carry guns, and it was basically unthinkable that blacks could do so. Thus, in effect, they could not be citizens. Charles Sumner, who, unlike Taney is quoted by Scalia, strongly endorsed the rights of anti-slavery settlers in Kansas to have guns to protect themselves against their pro-slavery opponents.
If one reads only Scalia and Stevens, one would believe that there is no dynamism to the Constitution, which is both stupid as a theory of interpretation and, more to the point, completely misleading as a way of understanding the American constitutional tradition.
All in all, a dismaying performance by the Supreme Court, whatever one thinks of the actual result.
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Gun control has really worked in D.C. That's why it has a really high murder rate.
There are so many guns in this country that it is not possible to get them off the streets. This whole law, the whole idea of gettig all the guns off the street is an empty gesture.
Furthermore, when the Consititution was written, we were a frontier coutnry. People needed guns to get food and for protection. The framers of the constitution couldn't have mean anything but individual gun rights. If you want to change the law, change the Sonstitution.
Maybe the Indians wouldn't have been quite so cranky if the colonists hadn't been so busy stealing their land and their food. Yes, their food--colonists actually broke into Indian homes to steal their food (and they dug up their graves, too, searching for valuables; check out LIES MY TEACHER TOLD ME for details).
Yes you teacher told you lies, this is a whopper of one. Colonists landed here and were a clash with the Indians.
Just as the Indians, murdered, stole and raped other Indians from different tribes for hundreds of years. Indians were tribal, lawless, and total failures as stewards of the land. Ever read the description of an Indian camp? Bad.
What kind of a progressive spouts off this ignorance?
I think the Supreme Court and those that think any "cruel and unusual punishment" is bad for pedifiles should speak with their victims...
Foxylady--since we can't kill pedophiles, can we make them into walking Ken dolls (real eunuchs that have to sit down to empty their bladder)
I believe the argument used was that reporting--which was already pretty low--would drop to nothing if the victim and/or the other parent in the relationship thought the abuser would be killed as a result.
So it's not that the SC thought abuse was not a problem--which it most certainly is--but that we'd never hear about it unless this was taken off the table.
THIS OLD WOMAN IS TOTALLY DISGUSTED WITH OUR SUPREME COURT....N
Great decision. It does have the unintended effect of gun control. Like many others I am now not going to restock my arsenal (theft took the last one) anytime soon.
I think you were too easy on Scalia and too hard on Stevens. Scalia is the dyed in the wool originalist; which it seems to means original intent is whatever he thinks it should have been.
He actually believes in the constitution. Go figure.
There are those of us who worry about the decision making ability of the dissenting justices. If they can't make the correct decision in a simple, straight-forward, no-brainer case, what are they likely to decide in a really important and/or complicated case.
It's not so straight-forward, especially in a "constructionist" court: http://www
As a slightly left-of-center Democrat, I applaud the decision for three reasons: 1) It comes down on the side of the individual rather than the government, which should always be the default in Constitutional and Bill of Rights issues; 2) It clips off the extreme positions from both the far left and far right and finds a nice middle ground that most reasonable people can live with; and 3) it will give us, for the very first time, a real historical baseline by which to make valid statistical studies of the correlatio
The problem with any prior attempts to study the issue, unfortunately, could only be argued with anecdotes or opinions. Now we have a before and after scenario by which to gather some hard, reliable data from DC and perhaps other cities.
"it will give us, for the very first time, a real historical baseline by which to make valid statistical studies of the correlatio
There is an extensive body of literature that attempts to do this, including studies comparing homicide rates in Washington, DC, before and after the current restrictive law was enacted in 1976. See, for example,
http://vol
It seems unlikely that this one instance will add any more useful data. Several studies are mentioned here
http://www
It is a real worry that so many of the recent decisions have been 5-4 with the same justices voting in blocks. We as a nation rely on the Supreme Court as the ultimate backstop against the threat of abuse of power by our government. The extraordinary combination we have today of arrogance and incompetence in the Executive Branch, the Legislative Branch crippled by partisanship and its own rules, and the apparent block voting by the Judicial Branch is really quite frightening.
At a time when our problems are acute enough to warrant decisive and rapid governmental action, nothing is happening. We are waiting for the changes to come with the November election, but ...
Don
Won't be long before this court finds a way to reverse Roe V. Wade.
You guys are completely unhinged.
Section 8 of the constitution gave the power to call forth the militia, to arm, organize and discipline the militia and to govern the militia in actual service of the US to congress. It gave the right to appoint officers and train the militia to the states. The Federalists papers were published by Jay, Madison and Hamilton as an explanation of the constitution while it was being considered by the people and the states. Several of the papers discuss the militia. Before passage of the constitution the bills of rights was attached. i have a friend who refuses to even read the relevant Federalists papers because he knows what the meaning of the 2nd must be. the phrase referring to a well regulated militia seems to be a reference to the Federalist paper argument that it would be hard to maintain a regulated militia because it would be hard for the units to train together very often. In the Federalist papers it is also argued that the militia will be able to join with the state if the federal government becomes oppressive or with the federal government if the state becomes oppressive. Like the author of this article I am appalled by the unwillingness of people on both sides to consider all facts and relevant language in discussing the matter.
Props on the historical detail. I have not read the Federalist Papers (my bad), but my reading of the amendment is that its intent was to guarantee the rights of states to organize militias, with the third clause there almost as a casual -- and unfortunate -- aside. I think, in the latter 18th century, arms were assumed to be as necessary as food and shelter and little to no thought was given to their legality.
Here in the 21st century, gun control should be a strictly local issue, with local elected representatives held accountable on Election Day. Applying the same standard to east Texas and inner-city Chicago is ludicrous, and if people want to maintain an arsenal, they can check the municipal and county codes along with the quality of schools, jobs, recreation as they contemplate their move.
Whatever you think would be a good idea we have an obligation to follow the constitution unless we amend it. The people then obviously wanted the rights to be theirs and not the states. Read the other amendments.
". . . . I have not read the Federalist Papers (my bad), . . . ."
The Federalist is NOT LAW, and IRRELEVANT to the issue.
"but my reading of the amendment is that its intent was to guarantee the rights of states to organize militias,"
GAD learn the history! The states ALL ALONG HAD MILITIAS, UNDER RULE OF LAW -- "The military power is always in exact subordination to the Civil Power" -- Sam Adams. The same principle is included in the Declaration of Independence.
The prupose of the Second Amendment was two-fold:
1. To assure the states that they could keep their (already-existing) militia; and,
2. To gain sufficient support from the anti-Federalists for ratification of the Constitution.
All along, as well, the issue of PRIVATE, INDIVIDUAL gun ownership -- MILITIA is a PUBLIC institution -- was left as a local issue to be determined locally in accordance with local conditions.
Last but not least: the Founders/Framers themselves engaged in gun-contro and more: there was no ocunter-"r
NO sane society opposes the reulation of dangerous substances and objects -- unless SELF-destr
If the militia was seen as possibly joining with the fed against the state, then the argument that the 2nd only applies to state militias is bunk. Retorical question - Why would a bunch of people who just overthrew their former government by force want to ensure that the new government could not disarm them? Not for hunting, not for personal self defense of the home.
Ultimately, for the second amendment to have meaning today, we would need to be able to possess rocket launchers, anti-armored vehicle mines, and rediculously expensive weapons of war, so in reality, the second ammenment is worthless, because the people today could never repel our own military.
I dunno... Hammas, Al Quaeda, the Taliban and all those guys seem to manage pretty well. Just a thought...
It's ironic that at the time the Second Amendment was being debated and revised between the Federalists and Anti-Federalists, the assumption was that the federal government could never raise an army big enough to combat a state militia.
The second amendment was a futile attempt to discourage a standing federal army. It tailed in 1812, when it couldn't even protect the White House from a professional army. It failed to execute Polk's imperial ambitions in Mexico, proving that an professional officer corps was necessary if we were to have an Empire. The Civil War proved that the ability to raise and equip an industrial draftee army was the way to win. At no point did militias defeat anybody, except, in some instances, striking workers. The KKK was a white racist militia. It was held back by the professional Union Army, until the federal political will ended and the troops went home. Attempts made by southern blacks to defend their rights with guns were viciously beaten back -- with the collusion and support of the Jim Crow governments.
This judgment is conservative poltical pornography, furthering a fictional view of the "right" to bear arms upheld by an amendment protecting an institution that has failed every single time it was tried.
People have the common-law right to self-defense. That's why they can have pistols and so on, and hunting rifles too. The DC law was ineffective, but not unconstitutional. A militia is NOT a bulwark against tyranny. It has acted in favor of local tyranny, and often racist mobs assert some form of legitmacy. If they were defending freedom, how come they're not besieging the White House?
I think it might be argued that the people have the right to possess mortars, cannon etc. In any event I think we would be in better shape to resist an oppressive state or federal govt with some weapons than without any. I think you really have to read the whole constitution in this case. The people seemed to want to make sure that the right to bear arms was not misconstrued as belonging to the state or national govts. It is not as simple however as most on either side want it to be.
"If the militia was seen as possibly joining with the fed against the state, then the argument that the 2nd only applies to state militias is bunk."
Ahistorical nonsense straight from the NRA.
"Retorical question - Why would a bunch of people who just overthrew their former government by force want to ensure that the new government could not disarm them?"
1. They did not "overthrow" the gov't you reference -- because it was in England.
2. They did not overthrow ANY gov'ts among the colonies; rather, they established their own -- and protected them against armed assault by eans of LAW.
3. There was no COUNTER-"revolution BECAUSE THE FOUNDERS DISARMED THE TORIES. THEY ALSO DISARMED THOSE WHO WERE "DISAFFECTED WITH THE REVOLUTION". THEY ALSO DISARMED THOSE WHO REFUSED TO SIGN AN OATH OF LOYALTY "TO THE CAUSE".
" Not for hunting, not for personal self defense of the home."
Ahistorical gibberish. The only state constitution which expressly authorized a right to "fish and fowl" -- do you see the words "defense against the gov't/rule of law, or "self-defense" in there? no, you do not -- was VT. And it at the same time LIMITED that right IN THAT SAME CONSTITUIONAL PROVISION.
And THAT provision was SEPARATE from the provision concerning militia and "the right of the people to keep and bear arms [as ENLISTED members of the state's LEGAL miltitia, which operated UNDER LAW, NOT INSTEAD OF IT]".
it sems to me, Laocoon, that "the federal government is now oppressive" but....the militia is now "tied up" in Iraq......
I am only to my best memory quoting the Federalists. Read for yourself. I think if you want to have an informed opinion as to what the 2nd amendment means or meant you need to read it. Maybe some of you have q better idea but that is not the point. What did it mean. I think like many documents both sides may have felt the language left open some room for argument.
". . . . Before passage of the constitution the bills of rights was attached."
WRONG.
1. Completion of ratification of the Constitution occurred on: June 21, 1788.
2. Subsequently, the gov't, beginning with the CONGRESS , was organized under the newly-ratified Constitution.
3. The Bill of Rights was DEBATED AND WRITTEN -- FRAMED -- BY THE FIRST CONGRESS UNDER THE CONSTITUTION -- see Creating the Bill of Rights: The Documentary Record from the FIRST FEDERAL CONGRESS (Baltimore: Johns Hopkins), Ed. by Veit, et al.
4. Completion of ratification of the Bill of Rights occurred on: December 15, 1791.
5. The "Militia Act," implementing US Con. Art. I., S. 8, Cl. 15 and 16 was enacted -- Second Amendment notwithstaqnding -- on May 8, 1792.
The Federalist is NOT LAW. Those DEBATES ARE LEGAL AUTHORITY KNOWN AS LEGISLATIVE HISTORY.
The second amendment makes no reference whatsoever to "citizens" or "citizenship". It speaks of the rights of "the people" to keep and bear arms, which, as I understand constitutional law, applies to ALL persons subject to authority of the US government, i.e., resident aliens, citizens, undocumented aliens, etc.
So, good luck, after you purchase your AR-15 and the flak jacket, in the people's militia in Fallujah.
Swift--your comment is totally irrelevant
NRA: We Won't Rest, Until Everyone 'Rests in Peace'
http://sat
I figured you liberal types would be howling today. LIVE with it. People have a right to defend themselves and their loved ones. Have a little faith in decent, honest people and REMEMBER that one of the first acts of a tyranny is to DISARM the populace. You liberals are just as much a tyranny as the neo-cons.
Regards,
Former , I said FORMER member of the NRA.
I also said decent, honest, and add to that law-abiding people.
Properly understood gun rights are a very liberal position.
The "right of self-defense" is not UNLIMITED, fool. And it has ALWAYS been limited BY THE RIGHTS OF THOSE YOU WOULD PURPORT TO "DEFEND AGAINST".
"THE NRA"......
Foxylady--I have 3 battlerifles (m1917 (American Enfield). SMLE4 an M1 Garand) that would make first rate hunting rifles as issued and a nice SKS that would make a decent east coast deer rifle
We elected the fools who put these fools on the court.
Not me! I never voted for G.W. and never would.
Read the Second Amendment: "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.
The first part is a pretext, and the last part is the statement.
Let's say the X Amendment said this: "Apples being necessary to make apple pie, the right of the people to plant apple trees shall not be infringed.
Nothing about that says that you must make pie in order to plant the tree. You may have many other uses for apples like eating them raw or feeding them to your horses, but a sparsley worded document like the Constitution doesn't need to give every detail.
If the Constitution doesnt give unnecessary details then there would be no need for a "pretext" that has no meaning and does not qualify in some way the "statement" Why did they waste the ink on the pretext if all that was needed was the statement? You seem to want to delete the pretext as meaningless. If a legislature put a similar pretext on a statement of rights it would be presumed to be as a guide to later judicial interpretation.
If you are right then why would they bother with a pretext that in no way qualified the statement?
A good point, laocoon ~ I agree.
Also, we were given a document that was intended primarily as 'an outline, or formula' for a newly-formed, post-British rule government, & expected to use it wisely ~ not to purposely destroy strong, necessary gun laws (as in DC) ... or to deliberately arm as many Americans as possible, during a time of considerable numbers of deaths and injuries due to civilian (eg., non-governmental, non-military) gun violence & crimes throughout our our nation.
K
Wrong. The apple tree would never appear in a constitution unless there was an underlying political issue, and there was none. At the time, guns weren't the issue. They were necessary in a vast continent where people had to hunt for game, impose law and order when necessary, and kill varmints on the farm. But many were afraid of a standing federal army. The "bulwark" they raised was the impotent militia. It faded into nothing as an institution by 1830 or so. The issue that put the amendment there has been decided.
Understand, I don't want to take away your guns, but unless you want to fold up the federal army and replace it with the militia system the Second Amendment envisions, then repeal the Second.
If you disagree with the right of the people provision, then work toward a constitutional amendment eliminating the 2nd amendment instead of pretending that gun bans are constitutional
I'll never understand people who over-intel
We've gotta change the world you people have screwed up. You are fuming about indecency and bad manners displayed in public--WHILE THE WORLD IS MELTING DOWN. Get some priorities. Guns & religion--that's all you've got
Word CB.
Is there another country in the world that discusses "gun rights"? Think about that phrase. There are thousands of people in the world who are on water rations. Let's talk about the right to the necessities of life.
The USA is outstanding among industrialized nations in its gunfire deaths, outstanding in the world for the number of guns in the country. And people worry about "gun rights."
And yes, I see the gun issue creates controversy and thousands of comments. I think that is because people who own guns with the intent of using them one day (otherwise why own them) are inherently assertive aggressive people. They really speak out to protect their weapons.
How absurd it is.
Free SPEECH isn't absolute. I can't slander or libel you. I can't yell fire in a crowded theater. Phony righties like you need to realize that you're just militarizing politics -- but that's been your goal since the KKK, no?
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