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Supreme Court: Second Amendment Conveys Individual Right to Bear Arms

Update: D.C. v. Heller has been released. The Supreme Court, in an opinion by Justice Anton Scalia, has affirmed that the D.C. handgun ban is unconstitutional:

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditional lawful purposes, such as self-defense within the home.

The opinion is here.

I will update with selected quotes below as I go through the 157 page opinion. First quote:

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased,“Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

Next quote:

1. Operative Clause.

a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.”

The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.5

And,

As we will describe below, the “militia” in colonial America consisted of a subset of “the people”— those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

On the phrase "keep and bear arms":

....the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.” ....At the time of the founding, as now, to “bear” meant to “carry.”

And,

c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment.

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.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed.

It's not a right without limits.

Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

The opinion discusses limitations on guns that people can carry and who can carry them:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

On the DC handgun ban:

....the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.

As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose.

The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,27 banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.

Also,

We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.

In a later section, here's an interesting paragraph:

A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.

Finally, the ruling:

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. 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.

The final paragraphs address the problem of handgun violence, to which the Court says it is sensitive. But, it says:

The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. 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.

That last line was great. That's a wrap for the majority opinion.

***

DC Handgun Ban Opinion: 10:00 AM Thursday

The Supreme Court will release three opinions at 10 am Thursday, including D.C. v. Heller, deciding the constitutionality of D.C.'s handgun ban and settling the question of whether the Second Amendment conveys an individual right to bear arms. (Background here and here.)

Scotus Blog will be live-blogging again here and will have the fastest announcement of the decision and link to the opinion.

Update: Here's a new thread to discuss reactions to today's decision.

< Obama Disagrees With Supreme Court Ruling Requiring a Death to Invoke the Death Penalty | Reactions to Supreme Court Ruling on Gun Rights >
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  • Display: Sort:
    What's the long term political impact... (5.00 / 1) (#13)
    by mike in dc on Thu Jun 26, 2008 at 08:38:11 AM EST
    ...if the ruling is extremely favorable to gun rights advocates?  Does it fade as a wedge issue, and those voters then become multi-issue voters, or do some of them fall back to another single-issue voting position?

    I'm sure it will continue to be an issue. (none / 0) (#54)
    by Jerrymcl89 on Thu Jun 26, 2008 at 10:17:39 AM EST
    It was, after all, a 5-4 decision, with all of the Obama-type judges comprising the 4, and the McCain-type judges the 5. Obama will certainly de-emphasize gun control as an issue in the campaign, but I imagine it will still be something of a negative for him (seeing as how I would expect anyone who favors stringent gun control is already in his camp).

    Parent
    Obama will not be able to control the gun control (none / 0) (#81)
    by Salo on Thu Jun 26, 2008 at 11:32:45 AM EST
    have you seen the Chicago gun control ordinances? he's likely to be a passenger on this issue.

    Parent
    My personal opinion: (5.00 / 2) (#25)
    by andgarden on Thu Jun 26, 2008 at 09:32:38 AM EST
    Partisan activist judges have just created a new right that they say appears in the constitution, but actually does not.

    There, never thought I'd get to say that about anything.

    I don't see the new right thing... (none / 0) (#26)
    by kredwyn on Thu Jun 26, 2008 at 09:37:25 AM EST
    I think it's been there.

    Parent
    Never thought I would agree with YOU! (none / 0) (#27)
    by MissBrainerd on Thu Jun 26, 2008 at 09:37:35 AM EST
    You are correct about this personal right not being in the constitution.

    The founders envisioned a WEAK federal government, with States being stronger. So, States were allowed to have militias to counter FED power. That is how I have always seen it.

    The Constitution is the world's best document for governing, but nothing is perfect and the world of weapons has certainly changed.

    Parent

    The problem with that view (5.00 / 1) (#42)
    by daryl herbert on Thu Jun 26, 2008 at 10:05:32 AM EST
    is that it should also limit the First, Fourth, Fifth, Sixth, Seventh, and Eighth Amendments.

    If the 2nd Am. belongs to the states, then so does the 1st Am.

    Further, if you look at precedent, in U.S. v. Miller, the Supreme Court recognized an individual right to own weapons that had a militia purpose.  SCOTUS decided that sawed off shotguns did not have a militia use.  There was no question that Miller had an individual right to own firearms, the question was which firearms he could own.

    Parent

    I agree with you in principle ... (5.00 / 1) (#71)
    by Tortmaster on Thu Jun 26, 2008 at 10:42:46 AM EST
    ... as I had hoped a ban on handguns in D.C. would be upheld, but I figured Scalia would recognize that militas, at the time of the framers, were average joes who did not belong to the Illinois National Guard or the Vermont State Police. Thus, whether you look at the "Right of the people" (obvious individual right) or the "militia" clause (militias used to be just individuals), there was an argument for an individual right.  

    For that reason, I thought an individual right would be recognized, and I really cannot argue with the logic -- although I want to do so.

    It will now become a challenge for municipalities to regulate the right as far as they can, but without an outright ban, and then try to respond to the court challenges that are sure to come.  

    It looks like this is going to go a similar route as Roe v. Wade, with a right announced and insular jurisdictions chipping away at the right through "regulation" of that right -- but with no outright ban. Yet.  

    Parent

    Practically (none / 0) (#83)
    by Wile ECoyote on Thu Jun 26, 2008 at 11:37:28 AM EST
    speaking the DC gun ban was a flop.  

    Parent
    Speaking only for me... (none / 0) (#32)
    by kredwyn on Thu Jun 26, 2008 at 09:48:57 AM EST
    Each of the 1st 10 seem to be written with both the individual and the collective in mind.

    We can assemble as groups or stand on a soapbox outside the courthouse and rant to our heart's content...
    We can worship/not worship free of the State...
    Soldiers can't be shoved into our homes by the State...
    We have the right to due process and to face our accusers...also speedy trial...

    and so on...with the 10th being a catch all for the things not yet covered...

    Parent

    Good points, thank you. nt (none / 0) (#40)
    by MissBrainerd on Thu Jun 26, 2008 at 10:04:12 AM EST
    I think you will find the founders were not of one (none / 0) (#80)
    by Molly Bloom on Thu Jun 26, 2008 at 11:31:53 AM EST
    mind on whether or not the Fed was weak and the States strong. Or are you discounting Hamilton and his allies?

    Parent
    That's not exactly (none / 0) (#91)
    by mikeyleigh on Thu Jun 26, 2008 at 11:56:25 AM EST
    what the founders envisioned.  The reason the constitutional convention was called into being was to solve the problem of a weak federal government with the states being stronger.  Almost every aspect of the new document was written in order to correct that imbalance.

    Parent
    According to Scalia, 2nd Amdt only applies to (5.00 / 1) (#34)
    by Dan the Man on Thu Jun 26, 2008 at 09:53:35 AM EST
    "law-abiding, responsible citizens" and not to the felonious, the irresponsible, or the non-citizens.  Hope he doesn't take that same view of the rights guaranteed in the 1st, 4th, and other amendments also.

    They had to put limits on this right (none / 0) (#43)
    by MissBrainerd on Thu Jun 26, 2008 at 10:05:40 AM EST
    The court may say we have a right but not a total right for anyone and everyone, so this decision does not seem so HUGE.

    Parent
    That is, essentially... (none / 0) (#56)
    by Jerrymcl89 on Thu Jun 26, 2008 at 10:19:59 AM EST
    ... the "yelling fire in a crowded theater" exception that already is established for the 1st amendment.

    Parent
    I do not believe the 1st Amendment only applies to (5.00 / 1) (#61)
    by Dan the Man on Thu Jun 26, 2008 at 10:29:53 AM EST
    "law-abiding, responsible citizens".  Otherwise, felons would have no 1st Amendment rights once they're out of jail.  Aliens would have no 1st Amendment rights.  And anyone irresponsible enough to join a Neo-Nazi party or a white supremacist group would have no 1st Amendment rights.

    Parent
    That's a bit sharp (none / 0) (#82)
    by Salo on Thu Jun 26, 2008 at 11:36:43 AM EST
    Although felons do have their voting rights stripped. So uh huh that sort of thing happens.

    Parent
    Not All Felons (none / 0) (#95)
    by squeaky on Thu Jun 26, 2008 at 01:00:29 PM EST
    I didn't mean the limitations are the same. (none / 0) (#86)
    by Jerrymcl89 on Thu Jun 26, 2008 at 11:46:58 AM EST
    Rather, that there already are longstanding, widely accepted limitations on the first amendment. It's not at all unreasonable that the interests of the greater good would impose similar, reasonable limits on the second. And keeping violent criminals or the mentally ill from owning guns certainly seems like a reasonable limit of an otherwise desirable right.

    Parent
    this post has nothing to do with Obama (5.00 / 1) (#63)
    by Jeralyn on Thu Jun 26, 2008 at 10:30:25 AM EST
    and comments about him will be deleted. Later there will be a thread on any reaction he has or an open thread.

    Comments here must relate to the opinion and topics within it.

    I'm for the right to bear arms. (none / 0) (#1)
    by Dalton Hoffine on Thu Jun 26, 2008 at 01:11:48 AM EST
    Even individually. Handguns are not AK-47's either. I have a feeling Scalia is going to write this opinion, and it will be one of the few things I actually agree with Scalia on partially.

    Oh my gosh.... (none / 0) (#3)
    by Grace on Thu Jun 26, 2008 at 04:04:56 AM EST
    I'm so tired now (and ready for bed) that I read this as "released at 10 p.m." -- and then I got a better grip and realized I won't be home when they release this tomorrow.  

    Drat.  

    I have very mixed feelings about guns.  I believe there is a right to own "some" yet I feel cities are within their rights to ban UZI's, AK47s, AR15s and machine guns on their streets.  (Actually, I feel cities should have a right to limit the number of concealed carry permits they issue.)  

    Anyway, it's going to be interesting to see how they rule.  Gun control is one of my favorite political things to argue since I'm actually a moderate on it.  I'm not for complete gun control yet I'm not against some gun control either.  

    I support the right to bare arms (none / 0) (#4)
    by myiq2xu on Thu Jun 26, 2008 at 05:35:38 AM EST
    Arming bears is too dangerous though.

    Baring arms as in (5.00 / 1) (#5)
    by Grace on Thu Jun 26, 2008 at 06:07:43 AM EST
    sleeveless shifts?  Wifebeater t-shirts?  

    I agree those are okay too.  

    Everyone should be allowed to bare arms.  

    Parent

    But as a courtesy to others (none / 0) (#7)
    by Redshoes on Thu Jun 26, 2008 at 06:43:59 AM EST
    some of us don't and no short-shorts either!  

    Will wait to see but suspect (and agree) that a ban as opposed to reasonable control would be in violation of the constitution no matter which way you frame it.

    After learning that Blackwater's revenue from Iraq is significantly less than what they receive from Fortune 500 companies I wouldn't want it any other way (don't own a gun out of the fear that I'd shoot myself in the foot!)

    Parent

    Not everyone! (none / 0) (#10)
    by MissBrainerd on Thu Jun 26, 2008 at 07:48:12 AM EST
    Some people should keep their arms concealed. The world is ugly enough!

    Parent
    Even ugly people (none / 0) (#16)
    by Nadai on Thu Jun 26, 2008 at 09:12:22 AM EST
    have a right to be cool in the summer.

    Parent
    Not a constitutional right, (none / 0) (#19)
    by cannondaddy on Thu Jun 26, 2008 at 09:21:03 AM EST
    we need a amendment.

    Parent
    No more amendments please (none / 0) (#41)
    by Jeralyn on Thu Jun 26, 2008 at 10:04:51 AM EST
    The Constitution is not a rough draft.

    Parent
    Why the bill of rights then? (none / 0) (#89)
    by Salo on Thu Jun 26, 2008 at 11:48:55 AM EST
    I've got a bumpersticker (none / 0) (#6)
    by Nadai on Thu Jun 26, 2008 at 06:39:25 AM EST
    that reads that - "Support your right to keep and arm bears".  Of course, I also used to belong to the NRA, until they endorsed Bush.  I just like the thought of armed bears.  An armed forest is a polite forest.  :)

    Parent
    My brother-in-law used to own a gun store (none / 0) (#8)
    by myiq2xu on Thu Jun 26, 2008 at 07:06:35 AM EST
    His motto is "gun control is hitting your target."

    The court will decide it is unconstitutional. (none / 0) (#9)
    by masslib on Thu Jun 26, 2008 at 07:29:19 AM EST


    If Scalia writes the opinion (none / 0) (#11)
    by myiq2xu on Thu Jun 26, 2008 at 07:51:18 AM EST
    you can count on it.

    Parent
    Scalia is an avid hunter (none / 0) (#12)
    by befuddledvoter on Thu Jun 26, 2008 at 08:17:42 AM EST
    From oral argument, you could tell he knows a lot about firearms.  

    Parent
    No... (none / 0) (#24)
    by kredwyn on Thu Jun 26, 2008 at 09:29:42 AM EST
    Just got a txt msg...2nd Amendment is upheld as an individual right.

    Parent
    I can't make up my mind on this one. (none / 0) (#15)
    by cannondaddy on Thu Jun 26, 2008 at 09:04:33 AM EST
    I think the second amendment was very poorly written.

    Yes. I think the 2nd amendment as written (5.00 / 1) (#20)
    by ruffian on Thu Jun 26, 2008 at 09:22:50 AM EST
    is wrong for the times in which we live, and we need a new amendment.

    I know that will probalby never happen though.

    Parent

    That won't happen... (none / 0) (#28)
    by kredwyn on Thu Jun 26, 2008 at 09:38:11 AM EST
    I completely agree. n/t (none / 0) (#17)
    by lilburro on Thu Jun 26, 2008 at 09:13:41 AM EST
    There were only shotguns then (none / 0) (#22)
    by MissBrainerd on Thu Jun 26, 2008 at 09:25:44 AM EST
    right? no AK 47's, shoulder-fired rocket guns, no nukes.....where is the line on what I can own?

    Militias for the states were for keeping the Feds at bay. How do we do that now?

    Parent

    fully automatic weapons (none / 0) (#29)
    by kredwyn on Thu Jun 26, 2008 at 09:39:52 AM EST
    have been covered/restricted under the National Firearms Act...since like 1934 and the machine gun.

    IIRC rocket launchers and nukes are covered under that act as well.

    Parent

    But why then do I have a right (none / 0) (#53)
    by MissBrainerd on Thu Jun 26, 2008 at 10:16:01 AM EST
    to a handgun or shotgun but no other weapon?

    Which is why the 2nd ammendment is a problem in the modern world.

    Parent

    You can buy an AK (none / 0) (#60)
    by kredwyn on Thu Jun 26, 2008 at 10:29:29 AM EST
    but the process you have to go through with the ATF is full of paperwork...and can be a bit on the expensive side.

    I'd suggest that you go and read the actual text of the act...and its revisions.

    I read it a few years ago as part of a research project I was working on. It was interesting, and I'd rec it.

    Parent

    because you'dshoot yourself in the foot with ... (none / 0) (#84)
    by Salo on Thu Jun 26, 2008 at 11:37:58 AM EST
    ...your AK.

    Parent
    Duh. (none / 0) (#30)
    by Artoo on Thu Jun 26, 2008 at 09:41:05 AM EST
    Individuals with handguns.

    Parent
    The Heller decision reaffirms Miller (none / 0) (#36)
    by myiq2xu on Thu Jun 26, 2008 at 09:55:02 AM EST
    which was the Federal ban on machine guns.

    It says that the 2nd Amendment doesn't give the right to carry any weapon anywhere, nor does it allow convicted felons or mental patients to carry guns

    Parent

    I keep waiting (none / 0) (#96)
    by BernieO on Thu Jun 26, 2008 at 01:17:55 PM EST
    for someone to say they have a right to bear nuclear arms............

    Parent
    Heller affirmed... (none / 0) (#18)
    by mike in dc on Thu Jun 26, 2008 at 09:15:03 AM EST
    ...details to follow, via scotusblog.

    AP reports its a personal right (none / 0) (#21)
    by scribe on Thu Jun 26, 2008 at 09:24:35 AM EST
    but that, to me, was never really in doubt.

    The real question is what standard of review - strict scrutiny, intermediate scrutiny, or rational basis - will be applied.

    And, to answer that, we'll all have to read the opinion....

    SCOTUS overturned the D.C. ban on handguns (none / 0) (#23)
    by stefystef on Thu Jun 26, 2008 at 09:29:30 AM EST
    Justices voted 5-4 against the ban.  

    The 2nd Amendment stands.

    What do y'all think?

    What the opinion does not foreclose (none / 0) (#33)
    by Molly Bloom on Thu Jun 26, 2008 at 09:50:42 AM EST
    Here is some caveats within the opinion


     (f) None of the Court's precedents forecloses the Court's interpretation.  Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264-265, refutes the individual rights interpretation.  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.  Pp. 47-54.  
     2. Like most rights, the Second Amendment right is not unlimited.  
    It is not a right to keep and carry any weapon whatsoever in any
    manner whatsoever and for whatever purpose:
     For example, con
    cealed weapons prohibitions have been upheld under the Amendment or state analogues.  The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.  Miller's holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.  
    Pp. 54-56.
     3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment.  The District's total ban on handgun possession in the home amounts to a prohibition on an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense.  Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition--in the place where the importance of the lawful defense
    of self, family, and property is most acute--would fail constitutional muster.  Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional.  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.



    Hopefully (none / 0) (#37)
    by mmc9431 on Thu Jun 26, 2008 at 09:55:42 AM EST
    They will address that with rights comes responsibilies. Living in an urban community, I don't want to have to go out and get a bullrt proof vest to walk out my door. Guns still need very tough regulations. I'm curious to see how far the interpretation goes.The idea that anyone should have this right is crazy. Will this affect concealed weapons? Weapons on campus's?

    Hller (none / 0) (#48)
    by befuddledvoter on Thu Jun 26, 2008 at 10:10:32 AM EST
    clearly limits who can possess; what weapon can be possessed; time, place and manner.  It does not set up a free for all.  I have just skimmed as this is a very long opinion.

    Parent
    Why not a free-for-all? (none / 0) (#55)
    by MissBrainerd on Thu Jun 26, 2008 at 10:18:39 AM EST
    The 2nd ammendment is problamatic. If the people have a right to bear arms, who defines what arms I can or cannot have?

    I don't want anyone to have any gun, but this is America.

    Still, there is not full right since I can't have some weapons that exist. Judges are still making decisions not in the constitution.

    Parent

    More thought on the caveat (none / 0) (#38)
    by Molly Bloom on Thu Jun 26, 2008 at 09:57:40 AM EST
    Like most rights, the Second Amendment right is not unlimited.  It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose

    This could prove to be the source for future litigation.

    Also

    Miller's holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.  

    leads to the question, what is an unusual weapon? What would a constitutional originalist say? (mild snark). What weapons are dangerous  and which ones are not?

    The problem with Scalia's interpretation (none / 0) (#39)
    by frankly0 on Thu Jun 26, 2008 at 10:04:11 AM EST
    of course is that if the "purpose" clause presents a reason that is clearly limited in scope, namely, that it is the need for a well regulated militia that underlies the right to bear arms, then it's really simply wrong to imagine that that purpose doesn't in an important way limit the scope of who, and under what conditions, can bear arms.

    If the right were intended to be basically unbounded, except for obvious exceptions like mentally unbalance individuals, then why stipulate the purpose at all? Why not ground it in some other way, or simply state it as an unconditional right, without a justifying "purpose"?

    Really, Scalia's interpretation strikes me as pretty much a willful revision of what is pretty clearly implied by the language.

    Just in general (none / 0) (#52)
    by frankly0 on Thu Jun 26, 2008 at 10:16:00 AM EST
    principles and rights are limited by their justifications. If something is not accepted as standing on its own as axiomatic, and self-evident, and must rely on some underlying purpose as its justification, then it is limited by that purpose or set of stipulated purposes.

    If the Founders had intended to grant a more general right, they would surely have seen fit to either give the right a more general foundation, or simply omit a justification altogether.

    Parent

    Just as an example of what (none / 0) (#67)
    by frankly0 on Thu Jun 26, 2008 at 10:37:26 AM EST
    the Founders might have said if they wanted to give the right to bear arms a more general scope:

    A well regulated Militia, being necessary to the security of a free State, and the need of men to defend themselves and their families, the right of the people to keep and bear Arms, shall not be infringed.

    Why would that have been in any way difficult to express, or something that would not have occurred to the Founders to have introduced, had they so intended the right?

    Parent

    Maybe more gramatically the revision might be (none / 0) (#76)
    by frankly0 on Thu Jun 26, 2008 at 10:54:43 AM EST
    something like this:

    A well regulated Militia, being necessary to the security of a free State, and men, having the imperative to defend themselves and their families, the right of the people to keep and bear Arms, shall not be infringed.


    Parent
    The only thing that surprises me (none / 0) (#45)
    by flyerhawk on Thu Jun 26, 2008 at 10:06:54 AM EST
    Is that it was a split decision.  I am not fan of handguns but it is hard to see how an outright ban of handguns can be considered Constitutional.

    Why would that be surprising? (5.00 / 1) (#65)
    by Big Tent Democrat on Thu Jun 26, 2008 at 10:32:50 AM EST
    What it be surprising to discover that ownership of grenades is banned? Bazookas?

    Nuclear bombs?

    Parent

    No (none / 0) (#74)
    by flyerhawk on Thu Jun 26, 2008 at 10:53:00 AM EST
    In the mood for an argumentum absurdum are we?

    Handguns are not bazookas or hand grenades.  

    Parent

    Are they "arms"? (5.00 / 1) (#77)
    by Big Tent Democrat on Thu Jun 26, 2008 at 10:55:21 AM EST
    What makes handguns different constitutionally the bazooka? Or more to the point, since U.S. v Miller involved the prohibition on machine guns, what makes hand guns different than machine guns?

    Have you ever even read the Miller case?

    Parent

    This is how Al Capone got (none / 0) (#85)
    by Salo on Thu Jun 26, 2008 at 11:40:46 AM EST
    around the law for a bit. The Thompson was not a controlled type of firearm. You literally could stroll down a street legally with an SMG in the 1920s.

    Parent
    Was there any chance at all (none / 0) (#94)
    by flyerhawk on Thu Jun 26, 2008 at 12:34:27 PM EST
    that they would rule that the entire classification of handgun would be deemed a restricted firearm?

    I'm not saying that the interpretation is the only possible one.  I am simply pointing out that it was very unlikely that they were going to drastically change the definitions.

    Parent

    When you consider (none / 0) (#46)
    by mkevinf on Thu Jun 26, 2008 at 10:10:06 AM EST
    that the D.C. law, as I understand it, allowed only for rifles/shotguns that were unloaded and either locked or disassembled, I'm surprised this thing wasn't challenged long ago.

    I don't own a gun and I see a need for both enforcement of current law and limitations on the number of guns a person can buy in a given period.  I mean, how many guns does one need to defend oneself or go hunting?  And this decision, at least the part I read, cites self defense and hunting as the explicit reasons for the right to individual gun ownership.  Seems to me they have left the door open for some further restrictions on gun ownership that is patently not for the purposes of self-defense or hunting.

    And to apply the Life of Brian thinking, "Of course that would extend the right to all forms of pseudo-hunting, e.g. galleries, outdoor target practice, shooting apples off one's son's head, etc."

    So... (none / 0) (#49)
    by MileHi Hawkeye on Thu Jun 26, 2008 at 10:12:37 AM EST
    ...is there anything to stop the District from turning around and regulating/banning the sale of ammo?  

    Except for those few who reload their own ammo, I would think it would have the same effect as a handgun ban.  

    They would have to ban the owning or transport... (none / 0) (#59)
    by ineedalife on Thu Jun 26, 2008 at 10:24:32 AM EST
    of ammunition. You can just drive a couple miles away and buy all the ammo you want.

    And, since in order to have a functioning gun you need ammo, I think the SC would strike any such ban down as well.

    Parent

    Indeed... (none / 0) (#72)
    by MileHi Hawkeye on Thu Jun 26, 2008 at 10:44:45 AM EST
    ...one of the things the handgun ban fostered was a lucrative black market in DC.  People would bring handguns bought cheaply from other states and resell them in DC.  

    However, the definition of "bare arms" doesn't include ammunition.  

    "bear arms, a. to carry weapons.  
    b. to serve as a member of the military or of contending forces: His religious convictions kept him from bearing arms, but he served as an ambulance driver with the Red Cross."  


    Parent

    I think (none / 0) (#90)
    by Nadai on Thu Jun 26, 2008 at 11:53:32 AM EST
    it's not really a weapon if it doesn't have ammunition, just an expensive piece of metal.  Banning ammunition would be like saying you could have any gun you wanted, but it couldn't have a trigger.  (This is a personal opinion, not a legal one.)

    Parent
    You can get lost in semantics... (none / 0) (#92)
    by MileHi Hawkeye on Thu Jun 26, 2008 at 12:07:12 PM EST
    ...very easily.  A rock is a weapon that requires no ammo.  Also, a gun without ammo or a trigger can be a weapon in that it can be used to strike someone about the head.  So, ammo isn't necessarily a requirement for a weapon.

    Words are fun!

    Parent

    This weekend in Oakland (none / 0) (#50)
    by Stellaaa on Thu Jun 26, 2008 at 10:14:46 AM EST
    Five people were shot and killed.  Three in SF in a road rage incident.  

    Justice Stevens dissent is devastating (none / 0) (#64)
    by Big Tent Democrat on Thu Jun 26, 2008 at 10:31:28 AM EST
    as it reveals the majority opinion to be mere farce.

    why don't you do a post (none / 0) (#66)
    by Jeralyn on Thu Jun 26, 2008 at 10:35:10 AM EST
    on the dissent. I thought the majority was good in explaining why Stevens is wrong.

    Parent
    Well (none / 0) (#69)
    by Big Tent Democrat on Thu Jun 26, 2008 at 10:39:03 AM EST
    I think Justice Stevens does a fine job of deconstructing the majority opinion.

    I will leave it to the readers to read it. I can not do it justice (pun intended.)

    Parent

    If you want to discuss reactions to the decision (none / 0) (#68)
    by Jeralyn on Thu Jun 26, 2008 at 10:37:50 AM EST
    Here's a new thread to discuss reactions to today's decision.

    So much for originialism (none / 0) (#70)
    by Dadler on Thu Jun 26, 2008 at 10:41:24 AM EST
    The purpose of the amendment was to allow for a militia on demand.  To suggest it means everyone can pack a gun for protection in their home means, logically, you cannot stop people from carrying guns to protect themselves everywhere.  You cannot logically argue that a person could not have a machine gun -- it protects you BETTER.  But we will, becaue the law is not about logic or consistency, but about whatever we feel it needs to be at a given time.  Also, unless guns are going to be as regulated as cars, unless you're going to require those who own them to prove they can safely operate a gun, just like we do with cars, then there is nothing to this ruling but "pack your heat and have at it."  

    A new constitutional convention is needed.

    Badly.

    This is ludicrous. (none / 0) (#73)
    by fkperiera on Thu Jun 26, 2008 at 10:51:40 AM EST
    What seems to be lost in the discussion about 'the right to bear arms' is whether or not having a right to a gun is a goo thing in the first place.

    Having lived in a country (UK) where no one has the right to bear arms and any murder (and there's not that much comparably) is done by knife, I think it's ridiculous to think that having a gun for safety is necessary.  I'm al for rights and freedoms but I don't think any political philosopher ever thought that the rights of the individual encompassed being able to kill other individuals in civil society.

    People should not have guns.  For hunting (as allowed in the UK), yes.  But a handgun?  No.

    There is a way to police society and ensure protection without giving everyone the right to shoot everyone else at any given time.

    Watch, DC is going to be awash in gun crime in no time flat.

    please put your opinons about guns (none / 0) (#75)
    by Jeralyn on Thu Jun 26, 2008 at 10:53:49 AM EST
    and the impact of the ruling here. This thread is for comments about the opinion.

    Parent
    Tangentally... ... (none / 0) (#87)
    by Salo on Thu Jun 26, 2008 at 11:47:35 AM EST
    ...the second amendment is a right wing frame and an argument that you are going to lose on constitutional grounds every time. It appears, on the face of it, to mean that the goverment can't retrict firearms. So their decision goes with the spirit of the law.   Even if it's completely insane.

    Parent
    I guess we drop the well regulated part (none / 0) (#78)
    by Dadler on Thu Jun 26, 2008 at 11:03:34 AM EST
    Because as it stands, there is little to no effective regulation of firearms.  How can anyone justify the regulation and registration and testing requirements of cars and drivers and not require the same for guns?

    My heart goes out to those who live in communities we don't give a sh*t about, where desperation and hopelessness reign, and where guns can proliferate even more easily and legally.  Sure, if most of us lived in the violent inner city, ravaged by gun violence, we'd surely not want the authorities to help get guns off the street, we'd want EVERYONE to be armed, we'd want a total shooting gallery, so at least we have a "fighting" chance.

    The hypocrisy among those who live comfortable lives in safe communities on this issue is kind of numbing.  

    NOTE: I've had guns pointed at me in anger twice in my life.  In both cases, if I'd have been armed I doubt I'd be alive today.  Irony of ironies.

    the whole thing seems ridiculous to me (none / 0) (#79)
    by TimNCGuy on Thu Jun 26, 2008 at 11:22:19 AM EST
    on one hand they argue judges shouldn't interpret into the constitution anything that isn't specifically there.

    Then this specifically says MILITIA and these judges say it's isn't related.

    Why don't they just USE their brains.  

    It is obvious (to me anyway) that this ammendment was put in place BECAUSE of the requirement of militias.  If states were going to have militias and the states weren't going to provide guns at the state's expense to the members of the militia, then the citizen militia member had to own his own rifle.

    I don't see how it is necessary today since the states (National Guard) provides the weapons for the members now.

    Good decision by the supremes (none / 0) (#93)
    by Prabhata on Thu Jun 26, 2008 at 12:20:49 PM EST
    I would not own a gun and I do not believe they are good for protection, but after much pondering, I recognize that the right to bear arms is in the best interest of democracy.  Arms, like drugs, are abused by some, but their legality should not be abridged.

    What's Scalia's interpretation of the word ... (none / 0) (#97)
    by Robot Porter on Thu Jun 26, 2008 at 01:24:47 PM EST
    "bear" in the Amendment?

    Does it mean "carry" or "brandish" or "display"?

    These are all interpretations of the word.

    And since "congress" isn't mentioned in the amendment, if you accept that the Second Amendment grants an individual right which cannot be infringed, what argument is there for regulating the carrying, brandishing or displaying of guns?

    And, by extension, wouldn't such a right make null and void any statutes that impose a greater sentence on individuals who were carrying, displaying or brandishing a firearm while perpetrating a crime?

    They were merely exercising an individual right.

    It seems to me you either have an uninfringeable right or you don't.  I don't understand how you can argue for any middle ground.

    It's simply not historically accurate (none / 0) (#99)
    by Exeter on Fri Jun 27, 2008 at 08:55:07 AM EST
    to read the constitution and the second ammendment as if the founders had no intention of giving people the individual right to bear arms. The right to keep and bear arms was a big and important issue of the time.