Heller Decision Released
It’s out. Per WTMJ radio, the D.C. gun ban has been overturned. Waiting on the extent of the ruling. It was a 5 to 4 ruling.
SCOTUSblog will have many posts up covering the details of the ruling. As anticipated, Justice Antonin Scalia wrote the opinion.
Here is the decision for download.
Here’s the closing couple of sentences:
Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
Good deal, now is there a devil hidden in the details?
Posted by .(JavaScript must be enabled to view this email address) on June 26, 2008 at 0937 hrs
I’m no lawyer or constitutional scholar, but it seems like the right decision, legally.
I don’t, however, think it should have much impact on the kind of restrictions that other states have implemented.
Posted by scott on June 26, 2008 at 1001 hrs
Unfortunately, from my point of view, you’re probably right Scott.
(I already pointed out on my blog that it probably won’t help us get a concealed carry permit here in Wisconsin.)
I do think Chicago is going to have a problem. Their ban is close enough to D.C.‘s that they’re probably going to lose in court.
Posted by elliot on June 26, 2008 at 1012 hrs
This is good news. Anxious to read the full decision.
Posted by Jennifer on June 26, 2008 at 1019 hrs
Agreed, Elliot. I would have liked the decision to go further, but given the case I believe it was right to stop where they did. To go any further would have been judicial activism. Regardless, this ruling firmly established two things that have been debated in the past:
1) The 2nd Amendment guarantees an individual right and has nothing to do with militias.
2) The D.C. outright ban violates the 2nd Amendment.
Posted by Owen on June 26, 2008 at 1023 hrs
Very interesting! It seems there is some wording in there that will challenge “may issue” states on conceal carry licenses.
Posted by Jennifer on June 26, 2008 at 1047 hrs
1) The 2nd Amendment guarantees an individual right and has nothing to do with militias.
Sorry if it’s hair-splitting, but I think it’s more accurate to say that the amendment is primarily about armed militias, but that, because of the fact that the word “individual” is also used, the majority opinion infers that the authors also meant to guarantee individual ownership. Which I guess I agree with. I just think it’s a misreading of the amendment and the decision to say that it establishes that the second amendment “has nothing to do with militias.”
Posted by scott on June 26, 2008 at 1051 hrs
I don’t read the opinion to support “shall issue” concealed carry.
It supports “shall issue” licensing of the sort required by some jurisdictions to exercise the basic 2d Amendment right, but specifically declines to find unconstitutional restrictions on concealed carry.
Posted by Jed on June 26, 2008 at 1057 hrs
The dissent is the interesting, and scary part of the case.
Posted by .(JavaScript must be enabled to view this email address) on June 26, 2008 at 1107 hrs
The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia,Scott you’re unbelievable. You’ll do anything to come up with smoething to disagree with.
That is the qoute from the decision. I could be NO more clear than that.
“unconnected with service in a militia” is pretty clear is it not?
The Second Amendment (like ALL THE OTHER AMENDMENTS) is about individual rights. Something that logic and context has dictated for years but liberals and those who would twist words and meaning have tried to work around.
I just think it’s a misreading of the amendment and the decision to say that it establishes that the second amendment “has nothing to do with militias.”
For years liberals and anti-gun folk have claimed that “militia” is in reference to a governmental or government sponsored entity.
That’s been the attempt at wiggle room for liberals. That the right to bear arms means “the national guard”.
This decision clearly refutes all of those silly claims.
It also clearly shows that the use of the term “militia” was just a preferatory clause to announce a purpose but does not limit OR expand the second part of the amendment.
The right of an individual to keep and bear arms stands on its own.
It is interesting though, that like we’ve always said. The foudning fathers clearly knew that the risk to our freedom was going to come from our government. I think thats the reason they put that preferatory clause in there. They knew DAMN well that the risk to our freedom was going to come from government. Thats they they gave the purpose of a citizen militia.
Posted by .(JavaScript must be enabled to view this email address) on June 26, 2008 at 1118 hrs
Tom Barrett needs a civics lesson
“It appears the majority of the court has decided its judgment should supplant that of elected officials in Washington, D.C.,” Barrett said in an interview. “I anticipate a flurry of legislative attempts now by the (National Rifle Association) and its supporters to broaden the ruling.”
No Tom… It appears the majority of the court has decided that elected officials in Washington DC can’t trump the constitution.
Posted by .(JavaScript must be enabled to view this email address) on June 26, 2008 at 1142 hrs
“unconnected with service in a militia” is pretty clear is it not?
Yes. It means “in addition to service in a militia,” or even “totally separate from service in a militia.” It does not mean “The second amendment has nothing to do with service in a militia.” It means that they find an individual right contained therein, along with the (in my view) more readily identified one of militia service.
This decision clearly refutes all of those silly claims.
I’m not sure I would call those claims “silly,” but the decision certainly does refute them. And—in case you missed it—I think it was correctly decided.
Scott you’re unbelievable. You’ll do anything to come up with smoething to disagree with.
Well if that ain’t the pot calling the kettle a pot.
Posted by scott on June 26, 2008 at 1150 hrs
It is primarily about limiting the government from disarming a citizen militia that was already understood to exist, and was comprised of every able bodied man in the nation. The only way such a militia could be preserved was to ensure the individual right of the citizens to keep and bear arms. Looking back to England, where the concept of protecting the right to bear arms was inherited from, the founders included the 2nd amendment to ensure the Federal Government could not arbitrarily disarm citizens in an attempt to leave only the government controlled military armed and restrain the right of the people to protech themselves from the tyranny of a the state, as the Catholics Monarchy had in England with protestant objectors.
From the Majority opinion:
Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the ablebodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification
of the right to have arms in the English Bill of Rights.The debate with respect to the right to keep and bear
arms, as with other guarantees in the Bill of Rights, was
not over whether it was desirable (all agreed that it was)
but over whether it needed to be codified in the Constitution.
During the 1788 ratification debates, the fear that
the federal government would disarm the people in order
to impose rule through a standing army or select militia
was pervasive in Antifederalist rhetoric....
It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down. It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution.
Posted by .(JavaScript must be enabled to view this email address) on June 26, 2008 at 1203 hrs
I’m sorry, I should have been more clear in my meaning.
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.I didn’t mean that they had addressed any conceal carry issues, only that the wording here is far more of a “shall issue” position rather than a “may issue” one. It implies a basis on which to challenge the limitation, not a decision that throws it out.
Posted by Jennifer on June 26, 2008 at 1209 hrs
This decision clearly allows municipalities/states to require licenses. That is good at least.
Posted by .(JavaScript must be enabled to view this email address) on June 26, 2008 at 1524 hrs
Well first John, before you (or I) go playing legal scholar here… I don’t think this case was a challenge to the constitutionality of requiring a license. I believe that Heller applied for a permit and was denied. The decision states that the city MUST issue him a permit.
I don’t think the court usually goes about addressing every single aspect of a case, rather they address the issue at hand. And in this situation the issue at hand was that he was denied a permit. NOT the constitutionality of the permit itself therefore, but the ban itself.
But even if it does “clearly”
allow states to require licenses, well then all of our problems are solved aren’t they?Then all the criminals will go register their guns!
WOO HOO!
What a great solution John. Can’t believe noone thought of that before.
Posted by .(JavaScript must be enabled to view this email address) on June 26, 2008 at 1542 hrs
Well it does at least give us something else to throw at criminals. If an unlicensed gun is found in their home, they can be charged. Right? I mean even Al Capone was nailed on mail fraud, of all things.
Posted by scott on June 26, 2008 at 1545 hrs
Is it the gun that’s licensed or the individual?
Based on what I’m reading about the case is that they have to issue a permit/license to the individual (Heller) not the gun it self…
Posted by .(JavaScript must be enabled to view this email address) on June 26, 2008 at 1554 hrs
XXPilot,
You are correct the Court did not address the licensing aspect of the City’s ordinance. I see the Court’s decision as being grandiose but with little substance.
After all, the Court held that some regulations can be imposed, that laws banning concealed carry are constitutional.
In light of this ruling, if I were a city that wanted to ban handguns, I would just jack up the licensing fees, which would be constitutional (based on impact fee laws, different but arguably analagous) provided that the fee could be tied to a legitmate purpose.
Chicago has already said that it will need additional police. Raise the fee to pay for the cops and hand guns become rare. Thus, Heller is worthless.
Posted by .(JavaScript must be enabled to view this email address) on June 26, 2008 at 1601 hrs
Chicago has already said that it will need additional police. Raise the fee to pay for the cops and hand guns become rare. Thus, Heller is worthless.
lol
smoke another one
Well it does at least give us something else to throw at criminals. If an unlicensed gun is found in their home, they can be charged. Right? I mean even Al Capone was nailed on mail fraud, of all things.
sigh…
I don’t believe you can interpret that from the decision either. Though many may like to…
Posted by .(JavaScript must be enabled to view this email address) on June 26, 2008 at 1609 hrs
Enlighten me, then. Can’t a criminal be charged with failure to have a license, either alone or in conjunction with another charge?
Posted by scott on June 26, 2008 at 1615 hrs
Scott… Criminals aren’t even allowed to have guns. Thats a felony in and of itself.
This case has nothing to do with licenses per se other than that DC must issue a permit to this guy who applied for one and was denied.
Posted by .(JavaScript must be enabled to view this email address) on June 26, 2008 at 1638 hrs
xxpilot is correct: the “prayer for relief” in the initial filing asked for a permit for Mr. Heller (don’t remember the language vebatim, it’s been a while). The court granted this after striking down two laws that precluded the license from being granted.
I think that this case is good to build on, and will be a “trampoline” to SCOTUS for other cases in the future, as many of the appeals courts will now have to follow Heller; they can no longer say “you’re not in the militia so you have no standing. Thhhbbbbt.”
On another note, isn’t it scary that you give judges “prayers for relief?”
Posted by Mike Gallo on June 26, 2008 at 2033 hrs
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