I woke up this morning and saw that the Supreme Court is upholding our Second Amendment rights. Four justices dissented, apparently believing that when the Second Amendment explicitly forbids the government from restricting gun rights, that this does not constitute "limit[ing] the tools available to elected officials wishing to regulate civilian uses of weapons."
I'm still scratching my head over that one. Maybe it will make more sense when I am fully awake. I doubt it, though. (Please direct gun discussions to Eric's post.)
The next thing I saw was that the WA State Democrats have removed their racist ad against Dino Rossi. The ad featured the theme song from The Sopranos, attempting to leverage negative stereotypes of Italians to help make Rossi look bad.
The Democrats deny wrongdoing, saying, "It's a catchy song, which we thought jibed stylistically with our communication about Rossi's designated attack squad."
Pull the other one.
Cross-posted on <pudge/*>.
Posted by pudge at June 26, 2008 08:17 AM | Email ThisTo that end, I found this sentence, in the Stevens dissent, interesting:
the Court proceeds to "find" its preferred reading in what is atbest an ambiguous text, and then concludes that its reading is not foreclosed by the preamble. Perhaps the Court'sapproach to the text is acceptable advocacy, but it is surelyan unusual approach for judges to follow.
Stevens is suggesting that the majority are activist in their decision. :-)
I don't think the 2nd Amendment is a very well written piece of law, and due to that, I think we'll have a lot of battles over this. I think it's simplistic to say that one side or the other is merely stupid or ignorant. I think this is evidenced by the modern reality that even most ardent supporters of private gun ownership recognize that there's a moveable line relative to what weapons an individual can possess and the manner and places in which that individual can use those weapons.
Posted by: Timothy on June 26, 2008 09:10 AMThe dem's use this as an excuse to stop the 2nd Amendment period!
Posted by: Army Medic/Vet on June 26, 2008 09:18 AMIt's pathetic.
There is NO rational legal justification for saying that we do not have an individual right to keep and bear arms, from the history and text of the Second Amendment and subsequent amendments. None whatsoever. If you have a right, you have a right.
It is NOT the case that the text is ambiguous, any moreso than "the right of the people peaceably to assemble" is ambiguous. And yes, the reading IS NOT foreclosed by the preamble. Absolutely. Saying you have a right in part because of some reason does not affect the fact that now you have that right, regardless of the reason.
Your claim about "what weapons an individual can possess and the manner and places in which that individual can use those weapons" is irrelevant to this case, because it is about a simple handgun in your own home, something CLEARLY included in ANY rational reading of the Second Amendment.
Posted by: pudge on June 26, 2008 09:34 AMNot in Washington State your not. Talk to your legislator if you want to change that. Idaho and Oregon are more sensible with Class 3 weapons.
Posted by: wqbang on June 26, 2008 09:38 AMJustice Stevens needs to recognize that while he may not like the result of the ruling, it is in fact the only one that can be made. His dissent should have said that while he disagrees with the ruling, it is correct given the wording of the 2nd ammendment and that the only way this can be changed is through the legal steps of a Consitutional ammendment.
What you mean to say is a "fully-automatic firearm", not a machine gun. And, as Don has already noted, you still will need a special permit to own such a firearm. Poor snark!
Timothy
At least the text that Stevens finds ambiguous-though a number of writers have shown that it is not ambiguous in the context of the day (which was good enough for the Boldt decision, right?)--was in the constitution. Unlike decisions such as Kennedy or Bourmediene.
Posted by: iconoclast on June 26, 2008 09:41 AMNor do I think you can casually dismiss the what/where/when discussion as you do. You're wanting to claim that the 2nd Amendment is unambiguos, but you're also wanting to claim that certain defined exceptions to owning weapons are clear as well, right?
I think Steven's has some basis for his arguments, and I think the majority has some basis for its arguments. I think pretending that this is a simple, cut and dry issue, is too simplistic.
Posted by: Timothy on June 26, 2008 09:46 AMThe majority states this:
Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.
Do you believe that the majority is "activist" in their upholding the idea that one must register and be licensed in order to carry a gun in his home?
Posted by: Timothy on June 26, 2008 10:00 AMThat is pretty clear, this particular right was already in existence and was already assumed to be held by the people and the amendment clearly clarifies that the pre-existing right shall not be infringed.
To me this amendment is the most clear of all of them, maybe that is why the Supremes have only had to take it up a couple of times. Why the left insist that it's the most confusing or contraversial is beyond me, likely they just can't believe true that something as simple and plain that a non-lawyer can understand it, can be fundamental law.
Posted by: Doug on June 26, 2008 10:00 AMYou can be damn sure the lib/dems will do what ever they can to limit this.
Posted by: Army Medic/Vet on June 26, 2008 10:03 AMI don't think it's a fair reading of the 2nd Amendment to interpret this as plainly as you do
I think it is an unfair reading to NOT.
Concluding that the preamble is merely a "for instance" and not a substantive part of the amendment I think is problematic.
No, NOT doing so is problematic.
Nor do I think you can casually dismiss the what/where/when discussion as you do.
All I did was state the fact that it is not relevant to this particular case, because if we have a right to keep and bear arms -- and we do -- then the LEAST expression of such right would be keeping and bearing a simple handgun in your own home. I did not dismiss the discussion in general.
You're wanting to claim that the 2nd Amendment is unambiguos, but you're also wanting to claim that certain defined exceptions to owning weapons are clear as well, right?
I said that the existence of an individual right is unambiguous. I did NOT say that what the right INCLUDES is unambiguous, only that it if the right exists it MUST include the right to have a handgun in your own home, else the right is meaningless.
Scalia's court was decidely not activist in your example. Since the scope of the question was limited to the DC law, they were very careful in relating it to ONLY the DC law, therefore as the right related to the law the Court's ruled that part of the law (registering for use in the home) was still allowed under the Constitution.
An 'Activist' writing would have been along these lines...the District must permit him to register his handgun and must issue him a license to carry it in the home and every State and county and city within the Union must Require licenses for such purposes.
Again, the Court did not decide how the 2nd amendment relates to states or other jurisdictions, though they gave pretty clear direction in the opinion.
No, again, the history and text of the Second Amendment show that the recognition of the right is not dependent on the initial clause.
The majority states this:
Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.
Do you believe that the majority is "activist" in their upholding the idea that one must register and be licensed in order to carry a gun in his home?
The majority did not require the state to force registration and licensure. You are confused. The District already HAS a system of registration and licensure. That system was not under review, only the part that banned handguns and private possession were under review. The majority was simply saying that this system could not exclude handguns, or home possession, from private citizens.
States like New York that are "only issue if you bribe the right person" will have to become like our state and be a "Shall Issue unless you are a felon or psycho."
Posted by: Vince on June 26, 2008 10:12 AMThe ellipses are only put in there to prove a point to you, that is you could put any phrase in the world in there and the amendment would be clear. For example: "...the right of the People (to horde and indulge in pornographic material) shall not be infringed." or "...the right of the People (to beat to death child rapists) shall not be infringed."
If that amendment said either of those things, then it would be pretty clear that at the time of the writing of the amendment those items would have already been considered a right of the people.
Posted by: Doug on June 26, 2008 10:13 AMThey expressly stated that registration and licensing for a home gun are part of the remedy in this case, and that statement will have far-reaching effect. It is not and will not be limited to DC, and will now be a model for the entire country, and a reference point for future courts.
Additionally, they didn't grant any universal right outside the home, which they could have done, but it seems chose not to.
To that end, I think many guns-rights supporters will likely claim that the majority was being activist in this decision.
Posted by: Timothy on June 26, 2008 10:17 AMYou know, I just had a thought. I was a lawbreaker when I lived in Massachusetts: I had a handgun in my home. The state asserted I had no right to do so. This decision retroactively exonerates me.
Woo!
Timothy:
Doug...the majority could very easily have stated that the right to a gun in the home is absolute, and no requirements such as registration or licensing can be required.
Again: this was not under review. To make such a sweeping ruling for an issue not under review, where the petitioners had not the opportunity to present arguments, and so on, WOULD have been activist.
They expressly stated that registration and licensing for a home gun are part of the remedy in this case, and that statement will have far-reaching effect.
Nope. It is only part of the remedy because they did not overturn the existing registration/licensure system in DC, which was not under review, except to the extent that it banned handgun possession in the home by private citizens.
Additionally, they didn't grant any universal right outside the home, which they could have done, but it seems chose not to.
Again, that was not under review. That the didn't address it isn't meaningful.
To that end, I think many guns-rights supporters will likely claim that the majority was being activist in this decision.
Only if they do not understand the case, or how the court works.
You have me confused now. I really don't know of any of the rights that are related to in the amendments as being absolute.
First amendment rights are not absolute, either.
Proper registration and licensing, the court says, can be allowed by the district (and I assume the states) as long as it doesn't infringe too far on the 2nd amendment rights. They aren't required and the court did not legislate from the bench that they be required.
You can bet that if that registration and licensing goes too far the courts will step in. An example would be if the District now says you can have a handgun in your home but you have to register it and it will cost you $10,000 in a licensing fee and it will take 2 years to process your request. That is an obvious example of a 7-2 slamming down of by the Supreme Court.
Posted by: Doug on June 26, 2008 10:25 AMOn page 18 of Scalia's text.
"State constitutions of the founding period routinely grouped multiple (related) guarantees under a singular “right,” and the First Amendment protects the “right [singular] of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The First Amendment prevents the federal government from prohibiting five fundamental rights for instance. (The Bill of Rights do not grant these freedoms, but rather they are inherent etc. etc. yada yada).
Similarly the Second Amendment discusses two seperate topics that do not directly tie to each other but are lumped under a general topic.
"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."
"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."
Just like the freedom of the press in the First Amendment is not predicated or subservient to the freedom of religion in the First Amendment. (Or the right to assemble, petition the government or freedom of speech) similarly the (right) to form a well regulated militia for the security of the free state is not directly tied to the individual right to bear arms.
Stepping back, and using common sense, think of it this way. Why have five seperate amendments enumerating a citizen's rights when one simple declarative paragraph (in case of the First Amendment) is sufficient?
Why have two seperate amendments dealing with owning arms and establishing militias when you can lump them under the same general category.
We do it all the time with our written and legal documents. The founding fathers did the same.
This progressive democrat likes the decision, as I think it strikes an important balance and provides some additional guidance going forward.
Carry on, all. Thanks for letting me participate. :-)
Posted by: Timothy on June 26, 2008 10:31 AMThis is completely consistent with a reading of the Federalist Papers. In Federalist #29, Hamilton discusses an ongoing concern of people in adopting the new Constitution--The concern that a strong Federal Government would institute a standing army and usurp the rights of the citizens--this issue was mentioned in several previous papers. Hamiliton says this in Federalist #29:
"...But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."
The founding generation, after just fighting England to preserve their liberties was concerned about losing those liberties to a new government formed by the new Constitution. The prefatory clause of the 2nd amendment was meant to allay those fears by pointing out a major reason for affirming the "right of the people to keep and bear arms".
Here is a link to Federalist #29
Posted by: Bill H on June 26, 2008 10:34 AM*Jefferson and the Democrats also agreed strongly with the idea that the second amendment allowed, even required, the empowerment via weaponry of an ongoing possible threat of force by the populace as the surest method of preventing tyranny. Hence the famous (and usually abused by the left) comment about a "revolution every now and then is a healthy thing, and as necessary in the political world as rain is in the natural". This has been reinforced by Monroe and Madison in correspondence later. Hunting and fishing (a la Mr Obama's learned statements) had nothing to do with it.
* In the 18th century, militias we organisations of people who were already armed and trained at ther own expense. In otherwords, they bought guns, at least as good, and usually better, than the standard issue military arms of the time. The equivelent in the 20th century of a kentuky long rifle would be a 2000 shot per second, laser aimed, explosive round enabled advanced asault weapon like an XM22.
* The clear meaning of the subsidiary sources indicates that if someone wants to by an RPG and a 105 mm howitzer and keep them maintained, they have to constitutional right to do so. Period.
That said, I would hope someone doing that would rate the at least benign attention of the local constabulary to make sure that nothing antisocial was going on.
"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."
Posted by: Bill H on June 26, 2008 11:26 AMJust one?
Posted by: Ragnar Danneskjold on June 26, 2008 11:30 AMIf you want Obama, the most liberal of liberals in this land, picking the next two justices, god save ya.
I'd rather have McCain picking the next two justices, thanks!
Posted by: gs on June 26, 2008 07:04 PM