Thursday, June 26, 2008

SCOTUS affirms right to bear arms

This from the AP [excerpts] with my comments below the star line

WASHINGTON - The Supreme Court ruled Thursday that Americans have a right to own guns for self-defense in their homes, the justices' first major pronouncement on gun rights in U.S. history.

The court's 5-4 ruling struck down the District of Columbia's 32-year-old ban on handguns as incompatible with gun rights under the Second Amendment. The decision went further than even the Bush administration wanted, but probably leaves most firearms restrictions intact.

The court had not conclusively interpreted the Second Amendment since its ratification in 1791. The amendment reads: "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 basic issue for the justices was whether the amendment protects an individual's right to own guns no matter what, or whether that right is somehow tied to service in a state militia.

Writing for the majority, Justice Antonin Scalia said that an individual right to bear arms is supported by "the historical narrative" both before and after the Second Amendment was adopted.

The Constitution does not permit "the absolute prohibition of handguns held and used for self-defense in the home," Scalia said. The court also struck down Washington's requirement that firearms be equipped with trigger locks or kept disassembled, but left intact the licensing of guns.

Scalia noted that the handgun is Americans' preferred weapon of self-defense in part because "it can be pointed at a burglar with one hand while the other hand dials the police."

In a dissent he summarized from the bench, Justice John Paul Stevens wrote that the majority "would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons."

He said such evidence "is nowhere to be found."

Justice Stephen Breyer wrote a separate dissent in which he said, "In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas."

Joining Scalia were Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Clarence Thomas. The other dissenters were Justices Ruth Bader Ginsburg and David Souter.

Gun rights supporters hailed the decision. "I consider this the opening salvo in a step-by-step process of providing relief for law-abiding Americans everywhere that have been deprived of this freedom," said Wayne LaPierre, executive vice president of the National Rifle Association.

The NRA will file lawsuits in San Francisco, Chicago and several of its suburbs challenging handgun restrictions there based on Thursday's outcome.

Sen. Dianne Feinstein, D-Calif., a leading gun control advocate in Congress, criticized the ruling. "I believe the people of this great country will be less safe because of it," she said. …

The entire AP story’s here.


I’m glad for the ruling, but wish the majority had been larger. However, given the current makeup of the Court, 5-4 was all that could be expected.

Today’s decision reminds us: elections matter. Without the President’s victory in ’04 we’d have had justices like Souter and Ginsberg ruling in place of Alito and Roberts.

The NRA is smart to not sit back, but instead file lawsuits based on today’s ruling. All the talk we hear now about “gun rights are not an issue; the NRA has won” is, IMO, just a Trojan horse the anti-gun lobby and its flacks are peddling to downplay gun rights as an election issue.

No one who cares about the right to self-defense should fall for that Trojan horse.

Justice Scalia's observation the handgun is Americans' preferred weapon of self-defense in part because "it can be pointed at a burglar with one hand while the other hand dials the police" will resonate with sensible people who'll understand that no matter what the anti-gun lobby tells them without the gun the bad guys won't let them call the police.

Getting back to how elections matter, the following is an excerpt from a story ABC News posted this morning prior to the Court’s announcement of its Heller decision:

When Obama has been asked on multiple occasions to weigh in on the D.C. gun case he has regularly maintained that the Second Amendment provides an individual right while at the same time saying that right is not absolute and that the Constitution does not prevent local governments from enacting what Obama calls "common sense laws."

Although he has been willing to describe his general views on this topic, Obama has sidestepped the question of whether the ban in the nation's capital runs afoul of the Second Amendment.

Asked by ABC News' Charlie Gibson if he considers the D.C. law to be consistent with an individual's right to bear arms at ABC's April 16, 2008, debate in Philadelphia, Obama said, "Well, Charlie, I confess I obviously haven't listened to the briefs and looked at all the evidence."

Sen. John McCain, R-Ariz., by contrast, has been forthcoming when it comes to the D.C. gun law.

He signed an amicus brief in the District of Columbia v. Heller case, signaling not only his belief in the Second Amendment but also his view that the DC gun ban is incompatible with it.
As of 2 PM ET I haven’t found comments on the decision by McCain and Obama.

McCain’s comment is easily predicted: he’ll applaud the decision.

And Obama’s comment? What would you predict?

I’ll make two predictions. It’ll contain a lot of “nuance;” and it'll not begin: “I can no more disown today’s decision than …. “


Anonymous said...

The entirely disengenuous argument made by the gun-haters--that the second amendment applies only to the National Guard--never made its appearance until somewhere around the middle of the twentieth century. Up until that time, there was absolutely no question in most American minds that the right was protected for the individual just as are the rights of freedom of religion, speech and press. To imagine that "the people" in the second amendment was somehow different from the people in the first, fourth, or tenth amendments is so irrational as to call into question the mental capacity of anyone posing such a thought. And I intentionally make that statement with people such as Teddy Kennedy, Chuck Schumer, Harry Reid, Nancy Pelosi, Barbara Boxer, Hillary Rodham, and Mr. Barack Obama in mind. It was truly a miracle that the current SCOTUS stumbled upon this shred of reality.
Tarheel Hawkeye

Anonymous said...

Tyson update

Anonymous said...

You were right on!
WASHINGTON (AP) - John McCain welcomed a Supreme Court decision invalidating a District of Columbia handgun ban.

Barack Obama sought to straddle the subject by saying he favors an individual's right to bear firearms as well as a government's right to regulate them.

BillyB said...

I'm not the brightest bulb in the lamp but I know for sure, when I went to school, back in the day, my teacher told me that the Bill of Rights were specifically passed because the Constitution was in danger of not being adopted because the founding fathers were afraid that the constitution would be understood to remove certain basic human rights from the individual citizens. To calm everyone's fears, the Bill of Rights was included to remove these fears.

The Basic Reason for the Bill of Rights was to guarantee INDIVIDUAL freedoms. Why this is questionable today remains a mystery to me. For God's sake man, there is even an ammendment that says that just because a basic human right is not covered, doesn't mean that that basic human right doesn't exist and isn't protected.

I'm not wearing a black robe but I'm smart enough to know what the second ammendment means. I means we all have a right to have weapons to protect ourselves from each other and especially the government.

The court did good, but the court didn't do great. I fear the days of GREAT MEN in our government are a memory that will never be regained.

Anonymous said...

So, his position is ?????????

Anonymous said...

On the Net:
Guns only have two enemies:
rust and politicians.

Anonymous said...

John - Did you get my comment yesterday on the Supreme Court decision?

Jack in Silver Spring

Anonymous said...

It appears that Reverend Wright was right about one thing -- Obama really is just a politician; straddling issues, trying to pander to both sides. When I hear "Hope and Change", I can't help but think that "hope" usually means waiting for something to make things better for you or depending upon the action of others. "Change" usually involves hard work, discipline and sacrifice. I have not yet heard Obama speak to these aspects. OT, I always look forward to Hawkeye's comments. Like you John, he informs me and makes me think. Steve in New Mexico

Anonymous said...

Here's a thread from Progressive Historians

It's amazing that some people think George Bush is a criminal and that 9/11 was somehow the fault of the U.S.

Oh, and we are supposed to treat the terrorists like house guests.

Some of these people are really scary.

Anonymous said...

John -

It seems my comment yesterday somehow didn't make it, so I will reconstruct it as best I can.

I have completed reading the Supreme Court's decision in DC vs. Heller and Justice Stevens' dissent. I began reading Justice Breyer's dissent, but for reasons I'll save for later, I got through the first 18 pages and decided that it wasn't worth it.

The decision is really quite narrow insofar as it simply said that the District of Columbia had infringed on Heller's right to own an assembled handgun in his home, contingent on the District's giving him the license to do so. I suspect the District will drag its feet and Heller will never see the license. The decision was limited to that one issue and did not go beyond it, juridically speaking. The importance of the decision was more in what it to lay the groundwork for future cases through its very thorough analysis of the Second Amendment. Justice Stevens in that regard complained that Court took 18 pages to parse the meaning of the second half of the Amendment (p. 8,n.7 of his dissent). The had to. It was prevent others, like Justice Stevens, from misreading it.

An important aspect of the decision was that it disconnected the prologue -- A well-regulated militia ... -- from the substantive clause: The right of the people to keep and bear arms shall not be infringed. According to the decision, only one commentator in the 19th century read the amendment as conditioning the second clause on the first clause (it was 1832; see p. 37 of Opinion of the Court). My understanding is that it was not until the early part of the twentieth century that such a reading became more widespread. An important aspect of what the Court did was to flip the understanding some people want to bring to the amendment. The Court said that it was not because there had to be a militia that the people have the right to keep and bear arms. Rather, the people have that right so that there can be a well-regulated militia. (Note, that is an understanding that comes from reading the decision, not that those were the words they used.)

The Court's opinion hinged on the term, "right of the people" being an individual right, not a collective right. That is very important because otherwise places where the term "people" appear in the Constitution could be construed as a collective right, only to be exercised collectively. (Justice Stevens wants to read the term people as a collective right to tie into the first part of the Amendment; that is, the right to keep and bear arms can only be exercised collectively as part of the militia.) In much of my reading about the Second Amendment over the past decade, this point was made and over again. Thus, where the word appears in the First Amendment, the Fourth Amendment and the Ninth Amendment, reading it as a collective right would severely weaken (if not eliminate altogether) our individual rights. Well, Justice Stevens does just that. On pp. 9-11 of his dissent, he eviscerates the individual rights found in the other Amendments. He claims, they are collective rights (It Takes a Village). That is truly breath-taking. It stands the Constitution on its head and the raison d'etre of this country. Justice Stevens would take us down a path many of us do not want to go. It is such people who can see rights in the penumbra of the Constitution (think Roe v. Wade) but cannot see the rights that are written down in the Constitution in black and white. I am not surprised Justice Stevens is against the individual right to keep and bear arms, because that is the natural or God-given right of a free person. But he can only see collectives and not free people. Truly stunning.

I now turn briefly to Justice Breyer's dissent. I got as far a p. 18 where he began to provide data about gun deaths and injuries. Being somewhat familiar with the data, I knew that he was abusing the statistics being presented. Was he also abusing the law? At that point I stopped reading the dissent.

Jack in Silver Spring