Supreme Court Affirms Right to Bear Arm

Thursday, June 26, 2008

The Supreme Court released their decision in the matter of the District of Columbia et al . v. Heller. This case was a challenge as to the constitutionality of several gun laws in the District of Columbia. Those being a ban on possessing a handgun and a requirement that all other guns be stored so that they are non-functional, therefore making them useless for self-defense purposes. I am in the process of a through reading of the case (another long one), but I wanted to give some initial impressions.

There isn't a whole lot of jurisprudence in regards to the 2nd Amendment. Most Con Law classes don't cover it at all and only the 3rd Amendment (quartering soldiers in your home) probably has less case law. Throughout most of our history, this was never an issue. Prior to 1934 there were very few gun laws. A child could order a belt-fed machine gun through the mail. Since that time, there has been a great deal of legislation regulating use, possession, and purchasing of firearms. For the most part, these laws have been upheld, despite numerous challenges. I was very surprised when the Supreme Court decided to hear this case.

What does it say and what does it mean?

1. They affirmed an individual right to keep and bear arms. This has been the majority opinion of most legal scholars and hopefully puts to rest the notion that this right is a collective one that belongs to the states or to people that are members of an orgainized militia.

2. They nullified the two provisions of DC law that were previously mentioned.

They were less clear in some other areas.

1. They rejected the rational basis standard of scrutiny and hinted at a higher level, though didn't say what kind of test it would require.

2. They didn't say if this applied to the states. Under the doctrine of selective incorporation, the second amendment, along with several other provisions from the BOR, has not been held to be binding on the States. Several commentations have suggested that the Court hinted that the 2nd does apply to the States, but I will have to see if I can find that.

3. They didn't say how this would apply to other federal laws.


For the most part, I am pleased with this decision. It didn't go as far as I would have wanted and still left the door open for plenty of other laws, such as licensing and bans on carry, but it is a step in the right direction. I understand that this is an emotional issue for many and I have never hid where my bias stands. I am interested to see how the candidates react. McCain has always been pretty luke warm towards gun rights and has backed many gun laws in the past. Obama has supported gun control, but hasn't made it an issue in this election. I sincerely hope he doesn't start.

17 comments:

Smitty 1:29 PM  

My own interest in the candidates' view of gun control is mostly as a political wonk. It's an interesting debate, buit this time around, try as they might, the NRA won't make this the deciding issue of the campaign. Bigger fish to fry.

If Obama is smart, he'll say something neutral like "the courts interpreted it and the argument is over...now let's move on..."

As for me, I believe I should be able to own a gun for what the Hell ever reason I want. I may not hunt with assault rifles (though they are very accurate guns as a general rule), I certainly don't need one, but let me be the one to decide I don't need that kind of gun, not Uncle Sam. That said, I don't mind trigger locks and gun safes. I'm prolly not going to use a gun for self-defense, as the incidence of home-invasions where I am both home and in need of a gun are pretty rare (knock on wood). I have kids so the thought of trigger locks and such are actually pretty attractive. Despite teaching my young ones to respect weapons and understand them...they are still toddlers and toddlers, while adorable, are also pretty irrationally stupid (I TOLD you 2 SECONDS ago to NOT pick that UP!! AND YOU PICKED IT UP AGAIN!!!). I don't even mind that Uncle Sam makes me have trigger locks (unenforceable...what's a cop gonna do, come in and check???, though Iknow that if there is an accidental discharge, the first question is where is the trigger lock), because some adults are also irrationally stupid. Some people do deserve to be culled from the herd, so to speak, but not little kids. They haven't even had a chance...

My two cents.

steves 2:31 PM  

I agree that it won't be a major issue and I would be content if Obama would leave things as they were and not try and propose any new restrictions.

Gun accidents have been declining, though the research seems to point to people just being smarter when it comes to storage, as opposed to mandatory storage rules and requiring gun locks.

Andy 2:54 PM  

I agree that people should be able to have guns for whatever reason they want, in their own home. I don't necessarily agree about carrying in public, but this decision specifically said that it was not affecting CCW (yes, it was in Scalia's comments).

What I have problems with in this decision is that it violates the ability of the people to decide the laws that they live under. It eliminates local control. If a majority of the people living in DC wanted this ban to be removed, all they had to do was vote in a new council and mayor to overturn the law.

This Supreme Court decision allows the minority to overrule the majority based on a loose interpretation of the 2nd amendment.

Now I have no problem with the court protecting minority rights in very obvious areas (i.e. 13th and 14the amendment), but I do have concerns with the court doing it on the 2nd amendment because of the vagueness of the caselaw.

If I lived in DC, i would lobby my councilman to remove teh ban and have it make more sense...but the court overturning the will of the representatives of the people is a bit disturbing to me on this one.

Bob "Chief Beer Advocate" 5:11 PM  

To me the main place where the government should have a say is where people are irreposnible with their guns.

If a kid gets your gun and shots themself, you should go to jail. You were an irresponsible ass and got a kid killed. The biggest thing that bothers me about this ruling, is that trigger locks cannot be required. Yes, I know it was unenforacable, but now a kid gets shot becuase there was not trigger lock and the person owning the gun gets away with it because it was his "right" to not have a trigger lock.

I grew up with guns a regret not spending more time on a range with my Dad. The biggest thing that was pounded into my head was that guns are a responsibility, not a toy, and should be treated with the proper respect. I have no problem with the law expecting the same from individuals.

I never really looked at this ban in DC as an in-house ban. I guess I always think of handgun bans and regulations as an issue when you carry it in public. I always thought of guns in the house as a different matter, so from that respect, I guess I can agree with the decision.

steves 9:42 PM  

What I have problems with in this decision is that it violates the ability of the people to decide the laws that they live under. It eliminates local control. If a majority of the people living in DC wanted this ban to be removed, all they had to do was vote in a new council and mayor to overturn the law.

With all due respect, we live in a Constitutional Republic. There are many things that are within the power of the gov't to legislate and follow the will of the poeple. Some things are outside of their reach, no matter how much people want it. A majority of the people in the South wanted segregated schools, and the courts appropriately shot that down (much later than they should have, but that is another issue). Our President and Congress thought Habeas rights could be suspended in the GWOT, but the Supreme Court said nope.

The biggest thing that bothers me about this ruling, is that trigger locks cannot be required.

I don't think those laws make a difference and most places will prosecute people who are irresposible. FWIW, gun accidents involving children are rare. In 2002 (the last year I could find stats), there were 72 children in the US under the age of 15 that dies as the result of a gun accident. Contrast this with 4,550 that dies from cars, 2,102 that drown, 482 from fires, and 81 from poison. There are no laws requiring people to lock their pools or cleaning products. Both kill more than gun accidents.

I am not trying to trivialize gun accidents involving children. I am just trying to add some perspective and point out that the justice system will often go after people far more often in these situations that someone who negligently leaves the gat to their pool open or fails in some other way to supervise their child.

steves 9:45 PM  

This Supreme Court decision allows the minority to overrule the majority based on a loose interpretation of the 2nd amendment.

Loose? The plaing language of the 2nd Amendment seems pretty clear, as does the writings of the framers of the BOR's. The majority of law review articles and scholarship on this subject supports an individual right and backs up Scalia's claims, for the most part.

Smitty 7:50 AM  

but the court overturning the will of the representatives of the people is a bit disturbing to me on this one

The court does it all the time...either overrule, or modify.

The plaing language of the 2nd Amendment seems pretty clear, as does the writings of the framers of the BOR's

Clear?? If it were that clear, we wouldn't have all these cases before the SCOTUS.

steves 8:33 AM  

Clear?? If it were that clear, we wouldn't have all these cases before the SCOTUS.

I just read the Stevens dissent and I seriously wonder if FDR wasn't right when he suggested that some should have to retire. He is 88, for crying out loud. It is one of the worst I have read.

I am not some Constitutional absolutist. I can see both sides of most issues and if the argument is persuasive enough, I will change my mind. Even if I don't agree with a decision, I can often appreciate the thought that went into it.

There is certainly room for reasonable debate and regulation when it comes to this issue, but I just don't understand the train of thought that arrives at some collective right or militia right. That just goes against scholarship and overwhelming historical evidence.

I should have used the word 'relative' when I was speaking about being clear. There are no clear Constitutional issues. If there were, then the job of the Supreme Court would probably be easier.

Rickey Henderson 12:30 PM  

Rickey aint a gun owner, but Rickey has no issues with this ruling. As long as you folks don't start stockpiling assault rifles, targets of Al Gore, and beef jerky it's all cool with Rickey.

Christian 9:02 PM  

You know, I appreciate that there are two sides to every argument. I try to keep that in mind when the D. Feinsteins of the world are out spewing their one-sided arguments and completely ignoring the facts.

Having gone to ranges for over 15 years, I also appreciate that there are some whack jobs out there. (I just don't occupy the lane next to them.) But the anti's ignore crime stats, trends, common sense (criminals will never turn their guns in), and the methods they use to confuse non gun-smart people is borderline criminal. It would seem like a losing battle but gun sales are climbing. So,... they can't ignore THAT. Can they?

What's my point? I dunno. Just venting.

Ooh rah. (CP)

Bob "Chief Beer Advocate" 8:48 AM  

Steves-
Do you think this decison would have been different if it was regulating/prohibiting handguns OUTSIDE the home only?

B Mac 8:53 AM  

I have returned from my long ATK absence. Hope no one missed me.

I'm not sure about the "plain text reading" argument regarding the 2nd amendment. After all, the part about "well-regulated militia" is directly linked to the right to keep and bear.

My two cents? The court probably made the right call, vis-a-vis the constitution. The constitution certainly protects the right of gun ownership in general (whether that is an individual right is debatable, but the 2nd amendment clearly deliniates a right of "the people" to keep and bear). Therefore, it feels to this uneducated boob like gun laws need to pass something approaching strict scrutiny. The DC law doesn't; it simply says, "no soup for you" to everyone.

The ironic part about this ruling as that, as Steve points out, only settles the question in DC. No case has ever been decided re: the 2nd amendment that clears up its applicibility to the states. Why they chose this as the test case is beyond me, but it seems like it was either (a) genius, (b) dumb-ass planning, or (c) some sort of jurisprudential hedging by the court; "if we eff this thing up, we'll only screw up one city."

steves 9:05 AM  

Do you think this decison would have been different if it was regulating/prohibiting handguns OUTSIDE the home only?

The majority suggested that laws regulating concealed carry were Constitutional. Following the line of reasoning they gave on what it meant to "bear arms", they would nullify a total ban on carry and allow some kind of training requirement or ban on carrying in sensitive places.

Therefore, it feels to this uneducated boob like gun laws need to pass something approaching strict scrutiny.

That was my wish too. I had hoped for some kind of test that courts could use, but that will probably come later.

It would seem like a losing battle but gun sales are climbing. So,... they can't ignore THAT. Can they?

I am obviously biased, but I have a difficult time seeing the point of view of someone that wants a total ban. There are some that are just uncomfortable, based on some past experience or exposure to criminal use of guns. They associate the criminal act with the tool being used. Among others, is just some notion that any act by the gov't must be ok and they will tolerate any kind of legislation. In other cases, they are people that don't own guns and have no interest in protecting any right that doesn't benefit them directly.

Bob "Chief Beer Advocate" 9:38 AM  

"...have no interest in protecting any right that doesn't benefit them directly."

Is that how you would describe most Americans?

Bob "Chief Beer Advocate" 9:45 AM  

"The majority suggested that laws regulating concealed carry were Constitutional."

How about prohibiting concealment? Seems to me the best way to deter crime is the wear the gun on your hip where everyone can see it.

steves 1:34 PM  

I don't know if I would describe most Americans as not caring about other's rights, but I would say that it was many. I remember numerous complaints about the Patriot Act or some other violation of the 4th Amendment being met with, "If you aren't trying to hide anything, then why should you care?" The same holds true for due process issues in regards to the rights of the accused.

How about prohibiting concealment? Seems to me the best way to deter crime is the wear the gun on your hip where everyone can see it.

Open carry is legal in most places, including MI (no permit required). There has never been a prohibition in this state, but most people, including some cops, have always assumed it was illegal. If you check out the FAQ on the MSP website, they point out that it is legal.

As for the deterrent effect, I am not aware of any studies. There are some that say it is a deterrent. Others say that it makes you a target. A BG spots the guy with a gun and takes them out first. Personally, I really don't know, but I prefer concealed. Depending where you are it can attract a lot of attention. I know a few people that were open carrying and had the police called. They were not arrested, but had to go through some hassle and embarrassment.

Bob "Chief Beer Advocate" 5:00 PM  

"Open carry is legal in most places, including MI (no permit required)."

I think most people think they have to have a CCW to own a gun.

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