The Big Heller Decision Discussion Thread - AFFIRMED 2ND AS INDIVIDUAL RIGHT

[AJ Dual]

The Court did the right thing.

They held the right to be individual in nature.
They held that a prohibition on the most useful tool for self defense in the home to be unconstitutional.
They left alone the National Firearms Act, as it was not at issue in this case. In doing so he left it open to future challenges under this ruling.
They left alone the issue of "prior restraint", which is what a licensing scheme is, because it was not at issue in this case. It would be open to future challenges under this ruling.
They held that Mr. Heller's license should be issued NOW unless he is criminally or psychologically disqualified. That means that all those folks in New York City who have been denied their Second Amendment rights under the Sullivan Act and the way it is imposed, should be able to launch successful challenges to their denials.

This ruling further means that Cities, like Chicago, which have bans on handguns will be successfully challenged and citizens thereof will be able to exercise self defense with their own arms.

The term "arm" is now defined to include handguns. These "arms" may NOT now be banned!!! Go back and read the Court of Appeals decision.

The NFA will be challenged very soon. Complete bans are unconstitutional!! It is settled constitutional law that a statute passed as a revenue measure, which collects no revenue due to its unreasonable burdensome nature, is not a revenue measure at all, but a ban. Complete bans are unconstitutional!

Let us all not hold our breath. Let us all now work diligently to build upon the success we enjoyed today.

I agree.

And however much it may stick in your craw, vote McCain this fall, and encourage everyone you know to do so as well, so that Federal Judges will be appointed so any of that actually has a chance in hell of happening.

 

[usmarine0352_2005]

From the Chicago Tribune:

http://www.chicagotribune.com/news/local/chi-supreme-court-gun-ban,0,3522044.story?page=2&track=rss

John McGinnis, a professor at Northwestern University School of Law who specializes in constitutional law and served in the office of legal counsel at the U.S. Department of Justice, called the decision "a complete victory" for those who advocate for the rights of individuals to own guns, though it does leave some ground open for a legal battle.

McGinnis said the court clearly stamped approval on the rights of citizens to own "ordinary guns that are in common use," including handguns.

What the decision ultimately means for Chicago is a different question, McGinnis said.

"It still leaves a wide swath open for substantial litigation in the future, in the context of local and state gun laws," he said.

Chicago would be "absolutely open" to make the argument that the 2nd Amendment should not be incorporated to apply to Illinois and the city, he said, though he said he believes with the current makeup of the court, that argument ultimately would fail.

McGinnis said he expects a local challenge to the Chicago ban to be filed in U.S. District Court here, with the question again heading up to higher courts. The professor estimated that it could take months for a local challenge to play out.

This is good. Better get onto it quick, before we get judges on SCOTUS who would rule against us.

Months is better then years.

 

[security6]

The more I think about it, the more I think the majority of 5 just gave lip service to the obvious intent of the 2nd. They interpreted it more as a government granted privilege which can be altered at political whim and future judicial interpretation. And these 5 are the product of appointment of supposed conservative presidents? Am I supposed to be thankful?

We are only going to have the rights that those in power are willing to let us keep. There is a tug of war between those in power who want power and those who want freedom and use the idea of rights as a means to limit power. Power historically wins and rights keep getting whittled down. Those cheering this "victory" in Heller I think are ignoring the trend and how hollow and small this decision really is.

No offense, but I think you are dead wrong.

Page 19 of the opinion:

We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.”

I believe you are ignoring the trend. Look at the past 10 years. The AWB died, more states have enacted CCW, more states have enacted castle-doctrine, states have enacted laws banning gun confiscation during emergencies, and now we have a SCOTUS opinion saying the right to own guns is an individual right. The trend looks pretty good to me.

Most of the people complaining about the decision don't understand how SCOTUS works. Changing things through the courts is slow and time consuming, but eventually it gets done. Look at civil rights for example. Brown was decided in the 1950's (the first two iterations anyway). 50 years later we still have SCOTUS cases about race (e.g. Parents v. Seattle School District in 2007). Look at the first years of civil rights after Brown came out, not much changed. However, civil rights activists kept working and look at how things are today. As gun-owners, we must keep working to get our rights back. SCOTUS cannot change things overnight, but if we keep working we will get more and more of our rights back.

 

[#shooter]

common use

United States v. Miller, 307 U. S. 174, does not
limit the right to keep and bear arms to militia purposes, but rather
limits the type of weapon to which the right applies to those used by
the militia, i.e., those in common use for lawful purposes.

It seems to me that "common use" is not limited to civilian use per se, it could also mean common military (or police) use as well. I am sure a future court battle will be waged on this matter.

I'm also unsure of the constant pairing of "self defence" and the "home." I wonder what this will do to and challanges to CC or OC. I understand that this case was about the firearms and how they are kept at home but we shall see.

 

[salthouse]

I apologize in advance for my not understanding all of the history with Heller, but I've been wondering.... Why did it take 32 years for a case like this to reach the SC? Did earlier challenges fail? If so, why?

 

[Frohickey]

Heller decision is just in time...

This SCOTUS decision on the DC vs Heller case is just in time for the Fourth of July celebration!!!

 

[Titan6]

The only real downside I see is that they affirmed registration and license. Indeed they even ordered it. But the upside is fantastic.

 

[Wes Janson]

I still want to see the Constitutionality of this law brought into question:

http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002332---g000-.html

 

[Zoogster]

It seems to me that "common use" is not limited to civilian use per se, it could also mean common military (or police) use as well.

I thought of that angle, but I didn't cover it because I think many here have failed to see the losses on some issues previously unresolved that we recieved today.

The gains are obvious:
The RKBA is an individual right, and arms includes handguns. Possession of arms is for use, and requiring they be disassembled or otherwise rendered unusable is unconstitutional.

Chicago would be "absolutely open" to make the argument that the 2nd Amendment should not be incorporated to apply to Illinois and the city, he said, though he said he believes with the current makeup of the court, that argument ultimately would fail.

Chicago and NYC are obviously dealt with here. Ultimately fail yes, with the current court. This was a 5-4 case though, and a slight change in the court could change the result several years from now when that issue would finaly have been appealed all the way to the SCOTUS if it came to that.
Essentialy SCOTUS left enough room that the ruling can be ignored by those that do not agree with it and have enough money to appeal it in the context of another case over years (by claiming it is a different matter through seperate legal arguments.)

 

[usmarine0352_2005]

The only real downside I see is that they affirmed registration and license. Indeed they even ordered it. But the upside is fantastic.

We have to have a license to drive a car because it is a privilige.

We shouldn't have to have a license to own a gun because it is a right.

We don't need a license so that we may speak freely.

How can they do this?

Will licensing only be in D.C. or will it become mandatory for all states?

 

[ctdonath]

Why did it take 32 years

Because it took that long for people to figure out what, exactly, was at issue. The general subject is so emotionally charged, and so full of overlapping & distracting obfuscations, that it really did take 32 years (or much longer) for someone to say "hey, let's do this right by keeping it simple" and work out the precise details without letting other red herrings through - and even then, 5/6ths of the plantiffs were ejected on a stupid technicality (which the judge had to hand to DC on a friggin' silver platter), and SCOTUS had to wade thru a half-million words of briefs on both sides, and somehow came up with a 157-page verdict when "what part of 'shall not be infringed' don't you understand?" should have been enough.

 

[fletcher]

Will licensing only be in D.C. or will it become mandatory for all states?

I saw nothing in there even suggesting licensing for all states. All that was said was an implication that licensing is OK (although not said outright), and that Heller should be given a license asap.

 

[Seminole]

So if, according to Scalia, restrictions on concealed carry are ok, what about laws that disallow even open carry, given that they disallow the bearing of arms completely? Could this be another fruitful avenue for litigation?

 

[fletcher]

^ I think so, at least something to look into. Constitutionally protected OC would be nice That and CLEO signoffs (because of how arbitrary they are) for current NFA items are the two things that seemed pretty clear targets for suits.

 

[esq_stu]

if it is not enforced arbitrarily and capriciously, does that mean the end of may issue?

I think you're onto something there.

 

[Zoogster]

Will licensing only be in D.C. or will it become mandatory for all states?

The decisions do not create all the details of new law, they create the basis from which new laws will be passed.

Basicly this says states can create as many "reasonable restrictions" as they desire without a conflict with the 2nd as long as actual possession of firearms 'in common usage' is not banned.
That is a big change.

Fees, licensing, qualification requirements, inspections, insurance requirements, etc etc are now allowed by SCOTUS.
Pass a law that requires all those carrying a firearm to be covered by 1 million in insurance and you can seriously reduce who pay the costs, or who insurance companies will cover.
Insurance is mandatory for cars in some states, and the minimum amount of coverage necessary is covered as well.

Anything that is a 'reasonable restriction' is now covered.

Now we just need licenses for free speech. I sure would like to see some 'reasonable restrictions' on what people can talk about.

So if, according to Scalia, restrictions on concealed carry are ok, what about laws that disallow even open carry, given that they disallow the bearing of arms completely? Could this be another fruitful avenue for litigation?

The ruling makes it sound like open carry cannot be banned, but that concealed carry restrictions can be in place.

However later on 'reasonable restrictions' leaves a wide avenue to restrict. $___ million insurance policy required by all those who choose to open carry. To cover injury costs if necessary of course.
How about a $100,000 of coverage necessary per round in the firearm. The higher the capacity the more coverage required. The more bullets that can be shot the more liability is present. Sounds like a 'reasonable restriction'.
Once most start carrying low capacity arms to qualify for lower policies, then you can declare high capacity ones not 'in common use'.

 

[Kurush]

did anyone else notice this, seemed like Scalia was taking a shot at Stevens in his choice of example (page 21)

 

[lacoochee]

Quote:
Will licensing only be in D.C. or will it become mandatory for all states?
I saw nothing in there even suggesting licensing for all states. All that was said was an implication that licensing is OK (although not said outright), and that Heller should be given a license asap.

I thought I read in effect that since Heller did not ask for relief from licensing, instead he asked to be able to receive that license, that they did not consider it...

Checked:

Because Heller conceded at oral argument
that the D. C. licensing law is permissible if it is not enforced arbitrarily
and capriciously, the Court assumes that a license will satisfy
his prayer for relief and does not address the licensing requirement.
Assuming he is not disqualified from exercising Second Amendment
rights, the District must permit Heller to register his handgun and
must issue him a license to carry it in the home. Pp. 56–64.

Yep that's what they did they ignored the licensing issue for now.

 

[lance22]

Ronald Reagan

It was the Gipper who appointed Judge Scalia. It would not have gone the way it did, or with this wording had Scalia not been there. So - a moment of silence in respect for Ronald Reagan, who being dead yet preserves liberty in the nation he loved.

 

[Deanimator]

I saw nothing in there even suggesting licensing for all states. All that was said was an implication that licensing is OK (although not said outright), and that Heller should be given a license asap.

As I suspected, the Court gave the anti-gunners what they SAID they wanted, namely "reasonable gun controls".

Of course that was absolutely the LAST thing they wanted. They WANTED arbitrary and capricious restrictions on gun owners and guns, and instead, they got the exact opposite.

Memo to vampires: If you don't want holy water with your happy meal, DON'T ask for it!

 

[rantingredneck]

The good news is that the most likely justices to retire during the next administration are among those who were in the minority. Obama wins he will likely only replace liberals with more liberals. McCain wins and we can (maybe) push that 5/4 split a little more solidly our way.

 

[Seminole]

In regard to forbidding OC, Scalia, discussing pre-civil war case law, wrote:

In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia
Supreme Court construed the Second Amendment as
protecting the “natural right of self-defence” and therefore
struck down a ban on carrying pistols openly.

Granted, this was a state SC decision, but Scalia certainly used it to help articulate this decision.

 

[Owens]

I have skimmed through the opinion. No great detail, but several things that jump out at me is 'common use'. In my mind that simply means long guns and hand guns. Unusual and dangerous (however that was phrased) seem to imply tactical missiles and nuclear weaponry. Of course in keeping the advancement of technology in view, whatever the military uses (in my opinion, one that can be carried by an individual in a ready to use state) is available to the civilian, or if you would rather, the milita member.

Another statement indicates the 'possibility' that the militia (unorganized military) may need the same kind of firepower as the organized military in the case of tyranny. Overthrowing tyranny being one of the recognized purposes for 'keep and bear'

I'm no lawyer, but all that seems to say to me is that there is a basis (and I think a solid one) for further pushes for clarification in our favor.

 

[lacoochee]

Now wouldn't that be ironic, in some states you never get the right to carry a concealed weapon but if the 2A is incorporated later (Chicago ruling maybe), you might get the inherent right to carry openly without a license being necessary.

 

[Groovski]

After reading excerpts of the decision, it's clear Scalia did a thorough once and for all body slam smackdown on any notion that 2A is anything other than what it was intended to be, and he is a hero as well, imo.

Regarding "common use" and Miller, common use refers to common use in the military, not civilians.

Regarding Heller and licensing, SCOTUS sidestepped the issue because Heller said he was willing to license his gun. They set no precedent whatsoever whether licensing is constitutional or not. Avoiding the issue does not mean it's "ok," it simply means they did not address it.

I am still astonished that we effectively came within one vote of losing a fundamental, pre-existing right, with so many battles left to fight.