Supreme Court Strikes down DC handgun ban.. - Tilted Forum Project Discussion Community

Jinn · 06-26-2008, 08:09 AM

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WASHINGTON – The Supreme Court tossed out a handgun ban in the nation's capital on Thursday, holding for the first time that the Second Amendment does protect an individual right to self-defense and gun ownership.

But in its first hard look at gun rights in nearly 70 years, the court also held – in a narrow, 5-4 ruling – that the right is subject to some reasonable limitations.

"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," wrote Justice Antonin Scalia, joined by Chief Justice John Roberts, who decided to issue the ruling on the final day of the court's annual term – a dramatic gesture that reflected the intensity of the nation's gun debate, and the potentially sweeping implications of a case that pitted public safety concerns against the right to bear arms.

At issue was whether the District of Columbia – and by extension, any city or state – could invoke public safety to ban the ownership of handguns within its jurisdiction. The case hinged on the interpretation of the Second Amendment: ''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.''

Gun-control advocates argued the idea of common defense, not merely protecting oneself or one's own property, is at the heart of that text.

The case was filed by Dick Heller, a security guard at the Federal Judicial Center who was refused permission to keep his handgun at his home in the nation's capital, reviving a decades-old debate that quickly became a cause celebre for both sides of the gun control issue.

In March 2007, the D.C. Circuit Court of Appeals sided with Mr. Heller, ruling that the ban was both unreasonable and unconstitutional. The city appealed.

Mr. Heller's lead attorney, Alan Gura, called it a blockbuster ruling. "Because private gun ownership is enshrined in our Bill of Rights, politicians cannot ban or regulate guns out of existence," he said.

Washington has long had some of the nation's toughest gun-control laws, a response to a nation-leading murder rate and rampant inner city violence. The case decided Thursday involved three ordinances, one that generally bars the registration of handguns, another than prohibits carrying a handgun without a license, and a third that requires any firearm in the home to be unloaded and kept either disassembled or with a trigger lock.

Even if the court found that the constitution provides for an individual right to self-protection, justices still confronted more gnarly questions regarding the limits of governmental regulation, depending on how they decided the case: Would a ban on firearms in schools or on public transportation still pass muster, or bans on assault weapons never envisioned by 18th Century lawgivers?

Texas was one of 31 states urging the court to embrace the right to keep and bear arms. State Attorney General Greg Abbott filed a brief, joined by 30 other states, calling on the court to strike down the D.C. handgun ban.

The U.S. Solicitor General, representing the Bush administration, weighed in urging the court not to tamper with federal restrictions on machine guns – angering some gun rights groups.

In a friend-of-the-court brief filed in February, Sen. Kay Bailey Hutchison, R-Texas, argued that the term "militia" wasn't meant to reflect merely a collective right. Rather, she argued, the Framers meant to recognize an individual right to possess firearms. Fifty-four other senators joined her brief, along with Vice President Cheney – in an apparent break with the administration's own policy. Some 250 U.S. House members, including all the Texans except for seven of the 13 Texas Democrats, also signed onto the brief.

Ms. Hutchison called the ruling "a major victory for the rights of all Americans to protect themselves and their families. The Supreme Court sent a clear message to local, state, and federal governments that this individual right cannot be unreasonably infringed."

Advocates of gun control and of gun rights have long argued over the precise meaning of the Second Amendment: "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 case could have implications in presidential politics, as well – by underscoring the president's power to shape the courts through nominations, and by emphasizing the wide gap between the contenders on gun control policy.

The GOP's pick for president, Sen. John McCain of Arizona, was one of 55 senators who signed the Hutchison brief. While some gun rights advocates distrust him – he supports background checks for buyers at gun shows, and championed campaign rules that crimped some political efforts by the NRA and other groups – they find him much more palatable than Democratic Sen. Barack Obama.

At a May 16 speech to the NRA, Mr. McCain touted his support for the Second Amendment, noting that he had long opposed efforts to ban guns and ammunition or to "dismiss gun owners as some kind of fringe group." Mr. Obama, by contrast, says he favors ''common-sense gun laws so that we don't have kids being shot on the streets of cities like Chicago," and he did not sign the Hutchison brief.

The ruling will leave intact many of the restrictions in place at the federal and state level – bans on felons' right to keep guns, for instance, and on M-16 military weapons or sawed-off shotguns, and laws that make it illegal to rob a bank while armed.

But Justice John Paul Stevens, writing for the four dissenters, argued that the ruling leaves to future courts the task of defining the actual contours of the right to bear arms. Clearly, law abiding citizens will be allowed to keep guns at home for self-protection, or for hunting, but that doesn't begin to address the myriad ways in which state legislatures might wish to regulate or restrict gun ownership.

He noted that in the last major gun case, settled in 1939, the Supreme Court held unanimously that the Second Amendment only applied in cases with some "easonable relationship to the preservation or efficiency of a well regulated militia." And he criticized the majority for arguing, in essence, that gun rights were frozen in time. Handguns were in use in the 18th Century, so they cannot be denied now to law abiding citizens. Military-assault rifles had not been invented, so they can be restricted.

"The court 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," Justice Stevens wrote.

http://www.dallasnews.com/sharedcont....3eef7ac3.html

I think this is absolutely awesome, and I'm glad that the Supreme Court finally ruled on such a contentious issue. I think there will be predictably a liberal outrage at the "Supreme Court writing the laws", but it's only fair in that the conservatives were outraged in the same way by the Supreme Court's ruling about habeas corpus for Gitmo detainees.

I wonder if LA, etc, will have to follow suit. I also wonder if there is any liability lawsuits in the works for all of the people who had their weapons seized, paid fines, and even spent time in jail for their "illegal" possession of a firearm.

I imagine the state has some sort of immunity, but frankly I think they should (at the very least) return the fees accessed and pay people who spent in time on weapons possession charges alone an "apology" sum for time spent.

Also, you can read the Justice's opinion here: http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf

Willravel · 06-26-2008, 08:30 AM

The gun ban probably was unconstitutional, but I'd like everyone to take special note of what Scalia wrote: "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."

seretogis · 06-26-2008, 08:34 AM

Quote:

Originally Posted by Willravel

The gun ban probably was unconstitutional, but I'd like everyone to take special note of what Scalia wrote: "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."

That doesn't matter as much as you may think. The ruling reinforces the Second Amendment as an individual right, not a silly state-militia-right as every gun control nut on this board argues.

Willravel · 06-26-2008, 08:36 AM

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Originally Posted by seretogis

That doesn't matter as much as you may think. The ruling reinforces the Second Amendment as an individual right, not a silly state-militia-right as every gun control nut on this board argues.

I'm pretty much the only one that argues that, actually. But regardless, the statement Scalia (who tends to rule conservatively for whatever reason) made is quite clear and flies in the face of what most gun proponents claim.

Jinn · 06-26-2008, 08:42 AM

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Originally Posted by Willravel

I'm pretty much the only one that argues that, actually. But regardless, the statement Scalia (who tends to rule conservatively for whatever reason) made is quite clear and flies in the face of what most gun proponents claim.

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“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.

That's pretty clear.

As for "flying in the face of what most gun proponents claim" you're also irrevocably wrong. No reasonable gun owner believes that it is "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."

I don't think that recently convicted felons should own firearms. I don't think that mentally ill individuals should own firearms. I don't think that firearms should be allowed in federal buildings. I don't think that fully automatic weapons should be available to anyone but an active-duty military personnel.

Any reasonable gun owner knows that it should be subject to some regulation.

Frosstbyte · 06-26-2008, 08:42 AM

It's a very strange decision on a very strange issue, and no amount of puffery by either side is going to convince me that they're correct about the 2nd Amendment. It's a miserable mess of grammar with an anachronistic purpose. The DC gun ban by any standard of judicial review was unconstitutional simply because it wasn't rationally related to a legitimate government interest. Given the latent ambiguity and anachronism inherent in the amendment itself, I think the justices should have dealt with the issue less directly, striking down the ban as unreasonable and unjustifiable but not within the framework of making it a clearly individual right.

So it goes.

Willravel · 06-26-2008, 08:44 AM

Quote:

Originally Posted by Jinn

That's pretty clear.

As for "flying in the face of what most gun proponents claim" you're also irrevocably wrong. No reasonable gun owner believes that it is "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."

I don't think that recently convicted felons should own firearms. I don't think that mentally ill individuals should own firearms. I don't think that firearms should be allowed in federal buildings. I don't think that fully automatic weapons should be available to anyone but an active-duty military personnel.

Any reasonable gun owner knows that it should be subject to some regulation.

Then you're calling the most vocal gun proponent on TFP an unreasonable gun owner?

Jinn · 06-26-2008, 08:45 AM

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Originally Posted by Frosstbyte

It's a very strange decision on a very strange issue, and no amount of puffery by either side is going to convince me that they're correct about the 2nd Amendment. It's a miserable mess of grammar with an anachronistic purpose. The DC gun ban by any standard of judicial review was unconstitutional simply because it wasn't rationally related to a legitimate government interest. Given the latent ambiguity and anachronism inherent in the amendment itself, I think the justices should have dealt with the issue less directly, striking down the ban as unreasonable and unjustifiable but not within the framework of making it a clearly individual right.

So it goes.

But it IS a clearly individual right. It's about time they made it clear. I think they would've done a tremendous disservice by failing to identify this, once again.

loquitur · 06-26-2008, 08:45 AM

it's interesting that people characterize Scalia as conservative on bill of rights issues. He actually is pretty damn absolutist on the scope of most of the rights in the first ten amendments, including some rights that a lot of people don't consider sexy, like sixth amendment confrontation rights, right to trial by jury, and things like that. He said people are allowed to burn a flag under the first amendment and there's not a damn thing the govt can do about it.

Yet another reason why conventional political bean counting as applied to the Supreme Court makes very little sense.

Jinn · 06-26-2008, 08:45 AM

Quote:

Originally Posted by Willravel

Then you're calling the most vocal gun proponent on TFP an unreasonable gun owner?

I assume you're talking about dk. I don't believe even he thinks it should be subject to no regulation, just less than you I.

samcol · 06-26-2008, 08:48 AM

I really don't see this as a win for the 2nd amendment. There were basically 3 outcomes possible, it's an absolute invidivual right, it's an individual right that can be restriced, or it's not an individual right.

Basically what this outcome says is that the current trend of tax and license and regulate guns to non existence will continue. Rarely are there laws or changes in legislation that protect gun owners, usually it's the other way around. This decision allows that trend to continue.

Willravel · 06-26-2008, 08:49 AM

Quote:

Originally Posted by loquitur

it's interesting that people characterize Scalia as conservative on bill of rights issues. He actually is pretty damn absolutist on the scope of most of the rights in the first ten amendments, including some rights that a lot of people don't consider sexy, like sixth amendment confrontation rights, right to trial by jury, and things like that. He said people are allowed to burn a flag under the first amendment and there's not a damn thing the govt can do about it.

Yet another reason why conventional political bean counting as applied to the Supreme Court makes very little sense.

I wasn't trying to open that can of worms again. I was simply expecting a slightly different response from him. I'm happy with what he said, as I see it as responsible.

loquitur · 06-26-2008, 08:50 AM

actually, Samcol, they left open whether licensing is constitutional. Didn't decide it.

Frosstbyte · 06-26-2008, 08:51 AM

Quote:

Originally Posted by Jinn

But it IS a clearly individual right. It's about time they made it clear. I think they would've done a tremendous disservice by failing to identify this, once again.

YOU think it is a clearly individual right. I read the amendment and see something that made sense in 1776 and makes no sense anymore. It's like reading a regulation on horse drawn carriages or gas lamps.

dksuddeth · 06-26-2008, 08:51 AM

Although this decision confirms an individual right, the USSC got so many things wrong with this opinion.

1) the fundamental balance of power is now firmly weighted towards the government. The 'people' being the soveriegn power of the USA rests on the ballot box only and if the govt believes its in its best interest to override the will of the people, so be it. The people are no longer soveriegn. I'm sure the pro-gov political body appreciates that.

2) no basis of scrutiny was decided upon, therefore each and every new case will have to work it's way through the court system. public policy by judicial fiat.

3) Because the phrase 'in common use' has been used, all it would take is for congress to limit the types of weapons available to 'the people' to eliminate it from common use, and viola, instant ban. constitutional.

4) This decision very subtly reverses Murdock v. Commonwealth of PA. By specifically stating that this decision does not rule out licensing, any body of government can now require a license, fee, or tax (subject to judicial approval to make sure it's not 'destructive') to exercise a right protected by the US constitution.

hooray for the people that demanded rights be regulated, that no right is absolute.

Willravel · 06-26-2008, 08:56 AM

See, Jinn? As soon as I read this, I knew DK wouldn't be happy with it because it is a compromise from his perspective.

The_Jazz · 06-26-2008, 08:59 AM

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Originally Posted by loquitur

Yet another reason why conventional political bean counting as applied to the Supreme Court makes very little sense.

I've said it once, but I'll say it again: I love you.

A justice is only as "liberal" or "conservative" as his last decision.

Frosstbyte · 06-26-2008, 08:59 AM

Quote:

Originally Posted by dksuddeth

2) no basis of scrutiny was decided upon, therefore each and every new case will have to work it's way through the court system. public policy by judicial fiat.

Yeah, it definitely seems like a major oversight to not slot gun regulations into some form of cognizable judicial review, or, if not to make it part of one of the existing categories, to at least make it its own category like abortion. Given how hot the issue is, if they were going to address it in a 140 page opinion, they should have at least taken a paragraph to decide how we should deal with regulations going forward.

loquitur · 06-26-2008, 09:01 AM

I'm reading quickly through Scalia's opinion now, and am pleased to see that he raises the post-Civil War disarmament of blacks in the South as one of the first major infringements of the newly freed former slaves' rights. History would have been quite different in the Jim Crow South if the blacks had been able to shoot back, don't you think?

dksuddeth · 06-26-2008, 09:02 AM

Quote:

Originally Posted by Willravel

See, Jinn? As soon as I read this, I knew DK wouldn't be happy with it because it is a compromise from his perspective.

I actually don't see this as a compromise. This was more like a bone thrown to the public that told us 'you can have handguns, hunting rifles, and shotguns', but the real reason behind the 2nd Amendment is null and void. We (the gov) will not allow you to be as equally armed as our military/law enforcement no matter what the framers/founders desired.'

Willravel · 06-26-2008, 09:06 AM

Quote:

Originally Posted by dksuddeth

I actually don't see this as a compromise. This was more like a bone thrown to the public that told us 'you can have handguns, hunting rifles, and shotguns', but the real reason behind the 2nd Amendment is null and void. We (the gov) will not allow you to be as equally armed as our military/law enforcement no matter what the framers/founders desired.'

So yes, you see it as a compromise, albeit one where your side gave more. You must admit, though, that there will now be guns in the hands of civilians in DC. Can't you see that is something you wanted? Yes, yes, the rest of it pisses you off to no end, but isn't that fact alone at least a small victory for what I see as your side?

Jinn · 06-26-2008, 09:15 AM

Quote:

Originally Posted by dksuddeth

We (the gov) will not allow you to be as equally armed as our military/law enforcement no matter what the framers/founders desired.'

If we allowed the general public to arm themselves equivalently to the military, average citizens could own RPGs, anti-tank missiles, grenade launchers, tactical nukes and 1000 lb JDAMs. Is this really reasonable?

dksuddeth · 06-26-2008, 09:17 AM

Quote:

Originally Posted by Willravel

So yes, you see it as a compromise, albeit one where your side gave more. You must admit, though, that there will now be guns in the hands of civilians in DC. Can't you see that is something you wanted? Yes, yes, the rest of it pisses you off to no end, but isn't that fact alone at least a small victory for what I see as your side?

No will, it is NOT a compromise. we got one step forward, they took us 3 back. I dont' see how gaining a ruling on a right we already had to begin with, but losing the spirit and intent of the 2nd is a compromise.

loquitur · 06-26-2008, 09:18 AM

Jinn, the opinion deals with that. Basically, the right protects keeping and bearing the category of weapons that individuals kept in 1790: personal firearms. That's an oversimplification but a useful one.

dksuddeth · 06-26-2008, 09:19 AM

Quote:

Originally Posted by Jinn

If we allowed the general public to arm themselves equivalently to the military, average citizens could own RPGs, anti-tank missiles, grenade launchers, tactical nukes and 1000 lb JDAMs. Is this really reasonable?

is it reasonable to think that the gov would use nukes, RPG's, and tanks against citizens on their own soil? This effectively shuts down any future machine gun ownership because they are not 'in common use' by the people anymore. Military weaponry of all sorts is effectively prohibited and that wasn't the intent of the founders.

Willravel · 06-26-2008, 09:29 AM

Quote:

Originally Posted by dksuddeth

No will, it is NOT a compromise. we got one step forward, they took us 3 back. I dont' see how gaining a ruling on a right we already had to begin with, but losing the spirit and intent of the 2nd is a compromise.

They could have ruled to maintain the ban, dk. That was your victory. Try to enjoy it.

loquitur · 06-26-2008, 10:10 AM

DK, your reasoning is circular. Like all rights in the bill of rights, the Second Amendment doesn't create or confer a right but rathern assumes the right is already in existence and prohibits the govt from infringing it. That tells you precisely zero about what the scope of the right is, only that you have it. The scope of the right - what its outer boundaries are - gets defined through custom, practice, legislation and case law. You are assuming as a premise that the scope of the right is what you think it is - that's why you think this is a bad decision. But you can't assume the conclusion, DK.

FWIW, I never have even tried to own a gun. I have gotten some training and been at shooting ranges but never sought to have one. To some extent it's because I live in NYC and the gun laws are very very strict - basically you need a good reason to be permitted to own a gun - and I never wanted it enough to be willing to go through what you need to go through to get a gun. However, it pissed me off that even though I'm about as plain vanilla a citizen as they come - pays his taxes, not deep in debt, not addicted to any substance, no criminal record, owns his home (well, the bank does, but you get the idea) - I still couldn't get a gun without having to show some good reason and get some bureaucrat's approval. It wasn't that I needed one or (most times) wanted one, but it annoyed me that if I did I still couldn't get one. But then, I generally bristle at infringements on my liberties...........

irateplatypus · 06-26-2008, 03:01 PM

i haven't read the full opinion, but one other unresolved issue is this decision's appears to be its exact effect on states and municipalities. the district of columbia is unique in that it's administered (primarily) according to federal law. there is the issue of "incorporation" of a right... whether the rights guaranteed by the federal constitution apply as barriers to federal or federal AND state infringement.

so, under this opinion, the states may still be able to enact laws just as draconian as DC's struck policy.

this poses an interesting question for conservatives. do we continue to favor states rights, decentralized power, and local autonomy? or, should we argue for extending the federal gov's mandate over state sovereignty?

loquitur · 06-26-2008, 03:26 PM

irateplatypus, I don't see any way this right doesn't get incorporated in the fourteenth amendment and then applied against the states. What would the logic be to justify treating this amendment different from the first, fourth, fifth, sixth and eighth? Yes, the 7th isn't incorporated, but that's an anomaly. And the third isn't incorporated because it just never came up - soldiers haven't been quartered in homes since the founding, I think.

ASU2003 · 06-26-2008, 03:39 PM

I wonder what the consequences of this law will be in 10 years? I am just as torn on this issue as the court is, but I'm still for pre-banning certain people from owning guns. True, they may be able to get a gun from the black market, but the less likely criminals, psychopaths and drugged-addicted people will have guns, the better.

I would like to see what the DC metro police does to protest. If I were running the police, I would have all officers wear riot gear and carry the large guns tomorrow.

So, who knows if this ban had any effect on crime? Or did it have any effect on non-drug related crime I should say.

And there is no way a group of people would ever be able to fight against the US military, FBI, local/state police, and intelligence agencies with the guns you can buy legally and illegally. Just look at Iraq. They had plenty of weapons, but nothing is working.

Willravel · 06-26-2008, 03:54 PM

I doubt the police will protest. A lot of them believe, like many gun proponents, that the gun ban added to crime.

loquitur · 06-26-2008, 07:06 PM

maybe, Will. Or not: remember, if possessing a gun is a crime (as it is in NY), then by definition a gun ban increases crime so long as people keep guns. The gun ban also gave cops a basis for raising their productivity statistics by hauling in citizens who the found keeping guns in their homes. The more laws there are, the more power cops have.

Willravel · 06-26-2008, 07:15 PM

Warning, speculation:
Yeah, but if, like I say, many DC cops believe that the high crime rate is somehow caused by the gun ban, then in their minds they're in less danger now. While I'm sure many of them enjoyed the power, they'll enjoy the idea of it being more likely they'll be coming home to their families safe and sound. All my cop friends are pretty clear that's the most important thing to them.

Fire · 06-26-2008, 08:29 PM

I live in missouri, not D.C. , but for the record, of the dozen cops I know, not a single one believes in gun bans - they are, according to them, ineffective... about half of said cops have stated at one time or another in my presence something along the lines that if a citizen wants to be safer, they should get and train with a gun... my favorite statement from a cop, (my business partner btw) is that "when seconds count, we are only minutes away" All of the security people that I work with are pro gun, and several have CC permits and carry regularly... But then this is certainly not D.C.- so I would think beliefs would be different there.....

Baraka_Guru · 06-26-2008, 08:58 PM

It's great not having to worry about whether to own a gun.

The story in Toronto these days is that the mayor and others want a gun ban. I don't think it matters either way. Not in my eyes. There have only been 27 murders in the city so far, which isn't too bad considering that Toronto's record year was 2007 with 84 murders, half of which were gun-related. I don't think a gun ban would do much.

(As a reference point, Chicago, a city of similar size, had 435 homicides in 2007.)

I'm generally ambivalent on gun bans.

Willravel · 06-26-2008, 09:02 PM

Toronto is about 2.5 million people. 2,500,000/84 = about 1 murder per 30,000 people. San Jose has about 1 million people. We had 32 murders last year. 1,000,000/32 = 31,000. So about the same. Toronto... the cold San Jose.

Baraka_Guru · 06-27-2008, 03:25 AM

Quote:

Originally Posted by Willravel

So about the same. Toronto... the cold San Jose.

Except when it gets over 40 Celsius (100 Fahrenheit) with humidex about this time of year....

I don't know much about San Jose except for a bit about hockey. I'm intrigued. I'm sure that's an interesting murder rate compared to your national average. What would be the attributing factors? You have a lot of Canadians living there or something?

Jinn · 06-27-2008, 05:14 AM

Quote:

about half of said cops have stated at one time or another in my presence something along the lines that if a citizen wants to be safer, they should get and train with a gun... my favorite statement from a cop, (my business partner btw) is that "when seconds count, we are only minutes away"

Likewise.. in my CCW class one of the instructors was a city police officer, and he said the same.. with the additional mention that their average response time to a 9-11 call in the city is 14 minutes. That's enough time for someone to get in, do whatever they want, and leave.

roachboy · 06-27-2008, 06:34 AM

this is kinda interesting.
scalia seems to be caught in a strange little loop: does the right to form a militia presuppose another, unspoken right to have guns around? presumably, it would, yes? but since there's nothing stated, and since we read scalia assembling a (quite curious) historical case, it would follow that what is really at issue is custom as it obtained around the 1789--and i would imagine that you'd have found exactly the same rural/urban split that you have now at the level of custom--if you are living in a city, you probably aren't doing a whole lot of hunting, so you probably dont have a gun.

what i don't really see is the inferential jump from what is not stated to some assumptions about 1789 context as if it were a single thing. i think that has more to do with stuff like one of the most irritating rhetorical quirks in american history writing, the tendency to use the phrase "americans think..." or "americans reacted to x..." as if there is this Unified Subjectivity called "americans"...which exists only in the phantasmagoria of nationalist ideology.

but it's a problem, yes, moving from a sequence of statements concerning negative rights (pre-existing rights that the state cannot infringe---upon [do you have to use "infringe upon" or can you just say "infringe"?]) to a negative negative right, which is one that is not stated at all but which you may or may not be able to infer is presupposed by what is stated.

this seems to me a problem with the notion of "original understanding"---which is also a problem for "strict construction" as an interpretive posture---when you get down to it, this is a speculative game, bounded by evidence in the way that "authentic" re-enactments of 17th century daily life are bounded by clothing.

stevens opinion seems more strict in the sense that it does not make the move scalia does in disconnecting the clauses and trying to infer some set of assumptions that inform the operative clause.

i guess what makes this interesting is its uncertainty, its ricketiness as argument, despite its status as ruling.

btw: on the issue at hand, i favor local control over guns. there is no reason why a city cannot exercise a different and far more stringent type of control than would a rural area. chicago is not a big hunting area. neither is boston or nyc. and i don't really buy the self-defense arguments in an urban context--at least not as powerful enough to justify abrogating the right of communities to determine what does and does not happen within their boundaries. and i dont see scalia's decision as saying anything that runs against that--what i see it as basically saying is that a city cannot enact a wholesale ban on all guns. but i think they can, nonetheless, make it as difficult as possible to own one. and i think it is the right of the citizenry as a whole to enact such law.

like it or not, even libertarians live in a society.

Willravel · 06-27-2008, 07:55 AM

Quote:

Originally Posted by Baraka_Guru

I don't know much about San Jose except for a bit about hockey. I'm intrigued. I'm sure that's an interesting murder rate compared to your national average. What would be the attributing factors? You have a lot of Canadians living there or something?

It's several things, I think. For one, our police force is well funded and pretty well respected. And it's been that way for a while. San Jose has had low crime rates for over 20 years. We also are suburbia, only kinda interesting because we're ginormous and have a lot of interesting things to do. I'm not sure how much it effects crime, but we're rated consistently as one of the healthiest cities in the world very often. Maybe we're better at chasing down criminals.

06-26-2008, 08:48 AM	#11 (permalink)
samcol Junkie Location: Indiana	I really don't see this as a win for the 2nd amendment. There were basically 3 outcomes possible, it's an absolute invidivual right, it's an individual right that can be restriced, or it's not an individual right. Basically what this outcome says is that the current trend of tax and license and regulate guns to non existence will continue. Rarely are there laws or changes in legislation that protect gun owners, usually it's the other way around. This decision allows that trend to continue. __________________ It's time for the president to hand over his nobel peace prize.

06-26-2008, 08:51 AM	#15 (permalink)
dksuddeth Junkie Location: bedford, tx	Although this decision confirms an individual right, the USSC got so many things wrong with this opinion. 1) the fundamental balance of power is now firmly weighted towards the government. The 'people' being the soveriegn power of the USA rests on the ballot box only and if the govt believes its in its best interest to override the will of the people, so be it. The people are no longer soveriegn. I'm sure the pro-gov political body appreciates that. 2) no basis of scrutiny was decided upon, therefore each and every new case will have to work it's way through the court system. public policy by judicial fiat. 3) Because the phrase 'in common use' has been used, all it would take is for congress to limit the types of weapons available to 'the people' to eliminate it from common use, and viola, instant ban. constitutional. 4) This decision very subtly reverses Murdock v. Commonwealth of PA. By specifically stating that this decision does not rule out licensing, any body of government can now require a license, fee, or tax (subject to judicial approval to make sure it's not 'destructive') to exercise a right protected by the US constitution. hooray for the people that demanded rights be regulated, that no right is absolute. __________________ "no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

06-26-2008, 10:10 AM	#27 (permalink)
loquitur Junkie Location: NYC	DK, your reasoning is circular. Like all rights in the bill of rights, the Second Amendment doesn't create or confer a right but rathern assumes the right is already in existence and prohibits the govt from infringing it. That tells you precisely zero about what the scope of the right is, only that you have it. The scope of the right - what its outer boundaries are - gets defined through custom, practice, legislation and case law. You are assuming as a premise that the scope of the right is what you think it is - that's why you think this is a bad decision. But you can't assume the conclusion, DK. FWIW, I never have even tried to own a gun. I have gotten some training and been at shooting ranges but never sought to have one. To some extent it's because I live in NYC and the gun laws are very very strict - basically you need a good reason to be permitted to own a gun - and I never wanted it enough to be willing to go through what you need to go through to get a gun. However, it pissed me off that even though I'm about as plain vanilla a citizen as they come - pays his taxes, not deep in debt, not addicted to any substance, no criminal record, owns his home (well, the bank does, but you get the idea) - I still couldn't get a gun without having to show some good reason and get some bureaucrat's approval. It wasn't that I needed one or (most times) wanted one, but it annoyed me that if I did I still couldn't get one. But then, I generally bristle at infringements on my liberties........... Last edited by loquitur; 06-26-2008 at 12:49 PM.. Reason: Automerged Doublepost

06-26-2008, 03:01 PM	#28 (permalink)
irateplatypus can't help but laugh Location: dar al-harb	i haven't read the full opinion, but one other unresolved issue is this decision's appears to be its exact effect on states and municipalities. the district of columbia is unique in that it's administered (primarily) according to federal law. there is the issue of "incorporation" of a right... whether the rights guaranteed by the federal constitution apply as barriers to federal or federal AND state infringement. so, under this opinion, the states may still be able to enact laws just as draconian as DC's struck policy. this poses an interesting question for conservatives. do we continue to favor states rights, decentralized power, and local autonomy? or, should we argue for extending the federal gov's mandate over state sovereignty? __________________ If you will not fight when your victory will be sure and not too costly, you may come to the moment when you will have to fight with all the odds against you and only a precarious chance for survival. There may even be a worse case. You may have to fight when there is no hope of victory, because it is better to perish than to live as slaves. ~ Winston Churchill

06-26-2008, 08:29 PM	#34 (permalink)
Fire Warrior Smith Location: missouri	I live in missouri, not D.C. , but for the record, of the dozen cops I know, not a single one believes in gun bans - they are, according to them, ineffective... about half of said cops have stated at one time or another in my presence something along the lines that if a citizen wants to be safer, they should get and train with a gun... my favorite statement from a cop, (my business partner btw) is that "when seconds count, we are only minutes away" All of the security people that I work with are pro gun, and several have CC permits and carry regularly... But then this is certainly not D.C.- so I would think beliefs would be different there..... __________________ Thought the harder, Heart the bolder, Mood the more as our might lessens

06-26-2008, 08:30 AM	#2 (permalink)
Willravel ... a sort of licensed troubleshooter.	The gun ban probably was unconstitutional, but I'd like everyone to take special note of what Scalia wrote: "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."

06-26-2008, 08:42 AM	#6 (permalink)
Frosstbyte Winter is Coming Location: The North	It's a very strange decision on a very strange issue, and no amount of puffery by either side is going to convince me that they're correct about the 2nd Amendment. It's a miserable mess of grammar with an anachronistic purpose. The DC gun ban by any standard of judicial review was unconstitutional simply because it wasn't rationally related to a legitimate government interest. Given the latent ambiguity and anachronism inherent in the amendment itself, I think the justices should have dealt with the issue less directly, striking down the ban as unreasonable and unjustifiable but not within the framework of making it a clearly individual right. So it goes.

06-26-2008, 08:45 AM	#9 (permalink)
loquitur Junkie Location: NYC	it's interesting that people characterize Scalia as conservative on bill of rights issues. He actually is pretty damn absolutist on the scope of most of the rights in the first ten amendments, including some rights that a lot of people don't consider sexy, like sixth amendment confrontation rights, right to trial by jury, and things like that. He said people are allowed to burn a flag under the first amendment and there's not a damn thing the govt can do about it. Yet another reason why conventional political bean counting as applied to the Supreme Court makes very little sense.

06-26-2008, 08:50 AM	#13 (permalink)
loquitur Junkie Location: NYC	actually, Samcol, they left open whether licensing is constitutional. Didn't decide it.

06-26-2008, 08:56 AM	#16 (permalink)
Willravel ... a sort of licensed troubleshooter.	See, Jinn? As soon as I read this, I knew DK wouldn't be happy with it because it is a compromise from his perspective.

06-26-2008, 09:01 AM	#19 (permalink)
loquitur Junkie Location: NYC	I'm reading quickly through Scalia's opinion now, and am pleased to see that he raises the post-Civil War disarmament of blacks in the South as one of the first major infringements of the newly freed former slaves' rights. History would have been quite different in the Jim Crow South if the blacks had been able to shoot back, don't you think?

06-26-2008, 09:18 AM	#24 (permalink)
loquitur Junkie Location: NYC	Jinn, the opinion deals with that. Basically, the right protects keeping and bearing the category of weapons that individuals kept in 1790: personal firearms. That's an oversimplification but a useful one.

06-26-2008, 03:26 PM	#29 (permalink)
loquitur Junkie Location: NYC	irateplatypus, I don't see any way this right doesn't get incorporated in the fourteenth amendment and then applied against the states. What would the logic be to justify treating this amendment different from the first, fourth, fifth, sixth and eighth? Yes, the 7th isn't incorporated, but that's an anomaly. And the third isn't incorporated because it just never came up - soldiers haven't been quartered in homes since the founding, I think.

06-26-2008, 03:39 PM	#30 (permalink)
ASU2003 immoral minority Location: Back in Ohio	I wonder what the consequences of this law will be in 10 years? I am just as torn on this issue as the court is, but I'm still for pre-banning certain people from owning guns. True, they may be able to get a gun from the black market, but the less likely criminals, psychopaths and drugged-addicted people will have guns, the better. I would like to see what the DC metro police does to protest. If I were running the police, I would have all officers wear riot gear and carry the large guns tomorrow. So, who knows if this ban had any effect on crime? Or did it have any effect on non-drug related crime I should say. And there is no way a group of people would ever be able to fight against the US military, FBI, local/state police, and intelligence agencies with the guns you can buy legally and illegally. Just look at Iraq. They had plenty of weapons, but nothing is working.

06-26-2008, 03:54 PM	#31 (permalink)
Willravel ... a sort of licensed troubleshooter.	I doubt the police will protest. A lot of them believe, like many gun proponents, that the gun ban added to crime.

06-26-2008, 07:06 PM	#32 (permalink)
loquitur Junkie Location: NYC	maybe, Will. Or not: remember, if possessing a gun is a crime (as it is in NY), then by definition a gun ban increases crime so long as people keep guns. The gun ban also gave cops a basis for raising their productivity statistics by hauling in citizens who the found keeping guns in their homes. The more laws there are, the more power cops have.

06-26-2008, 07:15 PM	#33 (permalink)
Willravel ... a sort of licensed troubleshooter.	Warning, speculation: Yeah, but if, like I say, many DC cops believe that the high crime rate is somehow caused by the gun ban, then in their minds they're in less danger now. While I'm sure many of them enjoyed the power, they'll enjoy the idea of it being more likely they'll be coming home to their families safe and sound. All my cop friends are pretty clear that's the most important thing to them.

06-26-2008, 08:58 PM	#35 (permalink)
Baraka_Guru warrior bodhisattva Super Moderator Location: East-central Canada	It's great not having to worry about whether to own a gun. The story in Toronto these days is that the mayor and others want a gun ban. I don't think it matters either way. Not in my eyes. There have only been 27 murders in the city so far, which isn't too bad considering that Toronto's record year was 2007 with 84 murders, half of which were gun-related. I don't think a gun ban would do much. (As a reference point, Chicago, a city of similar size, had 435 homicides in 2007.) I'm generally ambivalent on gun bans. __________________ Knowing that death is certain and that the time of death is uncertain, what's the most important thing? —Bhikkhuni Pema Chödrön Humankind cannot bear very much reality. —From "Burnt Norton," Four Quartets (1936), T. S. Eliot

06-26-2008, 09:02 PM	#36 (permalink)
Willravel ... a sort of licensed troubleshooter.	Toronto is about 2.5 million people. 2,500,000/84 = about 1 murder per 30,000 people. San Jose has about 1 million people. We had 32 murders last year. 1,000,000/32 = 31,000. So about the same. Toronto... the cold San Jose.

06-27-2008, 06:34 AM	#39 (permalink)
roachboy Super Moderator Location: essex ma	this is kinda interesting. scalia seems to be caught in a strange little loop: does the right to form a militia presuppose another, unspoken right to have guns around? presumably, it would, yes? but since there's nothing stated, and since we read scalia assembling a (quite curious) historical case, it would follow that what is really at issue is custom as it obtained around the 1789--and i would imagine that you'd have found exactly the same rural/urban split that you have now at the level of custom--if you are living in a city, you probably aren't doing a whole lot of hunting, so you probably dont have a gun. what i don't really see is the inferential jump from what is not stated to some assumptions about 1789 context as if it were a single thing. i think that has more to do with stuff like one of the most irritating rhetorical quirks in american history writing, the tendency to use the phrase "americans think..." or "americans reacted to x..." as if there is this Unified Subjectivity called "americans"...which exists only in the phantasmagoria of nationalist ideology. but it's a problem, yes, moving from a sequence of statements concerning negative rights (pre-existing rights that the state cannot infringe---upon [do you have to use "infringe upon" or can you just say "infringe"?]) to a negative negative right, which is one that is not stated at all but which you may or may not be able to infer is presupposed by what is stated. this seems to me a problem with the notion of "original understanding"---which is also a problem for "strict construction" as an interpretive posture---when you get down to it, this is a speculative game, bounded by evidence in the way that "authentic" re-enactments of 17th century daily life are bounded by clothing. stevens opinion seems more strict in the sense that it does not make the move scalia does in disconnecting the clauses and trying to infer some set of assumptions that inform the operative clause. i guess what makes this interesting is its uncertainty, its ricketiness as argument, despite its status as ruling. btw: on the issue at hand, i favor local control over guns. there is no reason why a city cannot exercise a different and far more stringent type of control than would a rural area. chicago is not a big hunting area. neither is boston or nyc. and i don't really buy the self-defense arguments in an urban context--at least not as powerful enough to justify abrogating the right of communities to determine what does and does not happen within their boundaries. and i dont see scalia's decision as saying anything that runs against that--what i see it as basically saying is that a city cannot enact a wholesale ban on all guns. but i think they can, nonetheless, make it as difficult as possible to own one. and i think it is the right of the citizenry as a whole to enact such law. like it or not, even libertarians live in a society. __________________ a gramophone its corrugated trumpet silver handle spinning dog. such faithfulness it hear it make you sick. -kamau brathwaite