D.C. v. Heller

[Jimmy Neutron]

This gun issue goes before the Supreme Court this week - the bigest decision on guns in over 25 years.

 

A good summary.

 

There is a lot at stake here which ever side of the 2nd Amendment argument you're on.

 

Predictions?

[General Itals]

It's hard to imagine that the ruling will be narrow or on a technical ground if this is the first major 2nd Amendment case that the Court has decided in over fifty years, but that is always a possibility.

 

The 2nd Amendment has never been incorporated to apply to the states, so that will be the first hurdle the right will have to get past. Scalia in particular has suggested in speeches that while he doesn't agree with Federal gun control law, he can see how the issue should be decided without Court interference on a state by state basis. For him to strike down the D.C. law, he has to reconcile his view of Federalism with it. I have no doubt that he will find a way.

 

5-4 striking down the D.C. law.

[Jimmy Neutron]

It's hard to imagine that the ruling will be narrow or on a technical ground if this is the first major 2nd Amendment case that the Court has decided in over fifty years, but that is always a possibility.

 

The 2nd Amendment has never been incorporated to apply to the states, so that will be the first hurdle the right will have to get past. Scalia in particular has suggested in speeches that while he doesn't agree with Federal gun control law, he can see how the issue should be decided without Court interference on a state by state basis. For him to strike down the D.C. law, he has to reconcile his view of Federalism with it. I have no doubt that he will find a way.

 

5-4 striking down the D.C. law.

 

I think SCOTUS will uphold the lower court's ruling and put the kabosh on DCs stupid ban. I'd love to see some strong wording in the decision about individual rights and and their relation to the modern function of militia, but I doubt we'll see that.

[Atlanta Cracker]

I I'd love to see some strong wording in the decision about individual rights and and their relation to the modern function of militia, but I doubt we'll see that.

 

Without tanks and missiles I don't see much use for a "modern militia" It's more of a right to self defense these days.

[TheShiznit]

It's hard to imagine that the ruling will be narrow or on a technical ground if this is the first major 2nd Amendment case that the Court has decided in over fifty years, but that is always a possibility.

 

The 2nd Amendment has never been incorporated to apply to the states, so that will be the first hurdle the right will have to get past. Scalia in particular has suggested in speeches that while he doesn't agree with Federal gun control law, he can see how the issue should be decided without Court interference on a state by state basis. For him to strike down the D.C. law, he has to reconcile his view of Federalism with it. I have no doubt that he will find a way.

 

5-4 striking down the D.C. law.

 

+1...Scalia and Thomas will undoubtedly find a way to practice judicial activism in the face of a strict constructionist issue.

[westvirginia]

Without tanks and missiles I don't see much use for a "modern militia" It's more of a right to self defense these days.

 

Then you might want to study a little history. The Warsaw Ghetto uprising during WWII and the Soviets in Afghanistan come to mind...

[yo mama]

I think SCOTUS will uphold the lower court's ruling and put the kabosh on DCs stupid ban. I'd love to see some strong wording in the decision about individual rights and and their relation to the modern function of militia, but I doubt we'll see that.

Those are the very two points I want the Court to tackle. I could care less about the DC ban itself. But having the SCOTUS flesh out the contours of the basic right itself is long over due.

[Jimmy Neutron]

I just read a few pages from the transcript from today's oral arguments. The justices really went after the DC lawyer. Trying to catch the audio on C-Span now.

[Atlanta Cracker]

Then you might want to study a little history. The Warsaw Ghetto uprising during WWII and the Soviets in Afghanistan come to mind...

 

 

Well I guess it's better than nothing but i see self defense as a more viable reason for owning guns. At any rate, I don't see how a city can get away with outlawing them for any reason.

[TheShiznit]

I think SCOTUS will uphold the lower court's ruling and put the kabosh on DCs stupid ban. I'd love to see some strong wording in the decision about individual rights and and their relation to the modern function of militia, but I doubt we'll see that.

 

Jimmy, I couldn't concur more with this assessment......but in order for this court to do this....it is going to have to interpret the constitution versus being strict constructionist. All I remember is that Judicial Activism is evil.

[yo mama]

Well I guess it's better than nothing but i see self defense as a more viable reason for owning guns. At any rate, I don't see how a city can get away with outlawing them for any reason.

I have mixed feelings about this. The modern justification for fire arms is largely one of self-defense. But its pretty clear the initial purpose behind the 2nd Amendment was to enable for the common defense of one's community, when called upon. Holing up in the hills somewhere stockpiling weapons and not paying taxes wasn't exactly what the Founders had in mind (other than taxation without representation). This puts us into the classic legal conundrum: do you interpret the construct of law strictly within its original intent, or do you allow for a little judicial activism in order to interpret the law within the context of modern times? It's a rhetorical question, as one's answer usually hinges upon the outcome they'd like to see.

Edited March 18, 2008 by yo mama

[TheShiznit]

I have mixed feelings about this. The modern justification for fire arms is largely one of self-defense. But its pretty clear the initial purpose behind the 2nd Amendment was to enable for the common defense of one's community, when called upon. Holing up in the hills someone stockpiling weapons and not paying taxes wasn't exactly what the Founders had in mind (other than taxation without representation). This puts us into the classic legal conundrum: do you interpret the construct of law strictly within its original intent, or do you allow for a little judicial activism in order to interpret the law within the context of modern times? It's a rhetorical question, as one's answer usually hinges upon the outcome they'd like to see.

 

Ok.....you said it better.......

[Tboogs]

When you begin to apply the 'militia argument', the second amendment starts to lose a little strength. My NRA friends don't ever see that word in the amendment. When the use and possession of firearms is restricted to persons and weapons that serve to defend our great nation or one of its states or even communities, then it is hard to justify the sale of a .50 pistol to someone in a wheelchair. Self defense in itself in not a justification to bear arms in a literal interpretation of the amendment. Also the word militia has come to represent something different than it did way back when. Today's militia is seen as a pure extension of the Tim McVeigh/Ted Kazinski element where it served a more vital function in the more loosely organized society of yesteryear.

[Seattle LawDawg]

I just have a bad feeling that they're going to rule on this very narrowly and sidestep fundamental issues. There are a lot of opportunities to bail out on this one. I hope I'm wrong.

Edited March 18, 2008 by Seattle LawDawg

[Azazello1313]

it seems to me that the strict constructionist stance would be to look at the text of the second amendment and say, real simple, the right to keep and bear arms will not be infringed. the first part of the sentence (well-regulated militia, blah blah blah) contains no declaration, only parenthetical introduction. i do not think it is a tenable reading of the second amendment to say that the founders intended to say that if the government decides well-regulated militias are antiquated and no longer necessary, then the government is free to take away your guns.

[Bill Swerski]

Given that our gun-control laws never seen to stop criminals from getting a hold of them, I'm all for allowing people to protect their families and property.

[General Itals]

it seems to me that the strict constructionist stance would be to look at the text of the second amendment and say, real simple, the right to keep and bear arms will not be infringed. the first part of the sentence (well-regulated militia, blah blah blah) contains no declaration, only parenthetical introduction.

 

As a strict constructionist, one of the tenets is that equal consideration must be ascribed to the meaning of each and every word. So how do you explain away the preamble to the 2nd Amendment? That there were a thousand other reasons that the Founding Fathers felt individuals should bear arms, but that they just didn't bother writing them down?

 

Also, how does your statement balance with the fact that federal gun regulation exists? Not to mention the fact that the 2nd Amendment doesn't currently apply to the states, although after this ruling it may well.

Edited March 18, 2008 by General Itals

[Azazello1313]

As a strict constructionist, one of the tenets is that equal consideration must be ascribed to the meaning of each and every word. So how do you explain away the preamble to the 2nd Amendment? That there were a thousand other reasons that the Founding Fathers felt individuals should bear arms, but that they just didn't bother writing them down?

 

i'm not sure where you get the "each and every word" business. but in any case, i think you're looking at it backwards. the view i put forward doesn't discard the preamble, as much as the reinterpret-for-context view uses the parenthetical 'why' of the preamble to eviscerate the actual declarative command of the law. in other words, the preamble doesn't make as much sense in a modern context, so we may as well not pay much heed to the entire law -- the law should be shaped to the context. that is essentially the exact opposite of strict constructionism.

[AtomicCEO]

it seems to me that the strict constructionist stance would be to look at the text of the second amendment and say, real simple, the right to keep and bear arms will not be infringed. the first part of the sentence (well-regulated militia, blah blah blah) contains no declaration, only parenthetical introduction. i do not think it is a tenable reading of the second amendment to say that the founders intended to say that if the government decides well-regulated militias are antiquated and no longer necessary, then the government is free to take away your guns.

 

That made no sense whatsoever. You can't just gloss over half the amendment with "blah blah blah" and expect your argument to be factual.

 

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.

 

Let me create another sentence with similar structure:

"The price of beans being low, people should buy up as many beans as they can."

 

Now, tell me... does this mean that you should buy beans when the cost of beans is high?

 

Argue what you want about whether people should have the right to own guns, but the amendment on it's own is clear as day to anyone who speaks English at a 4th grade level.

[TheShiznit]

That made no sense whatsoever. You can't just gloss over half the amendment with "blah blah blah" and expect your argument to be factual.

 

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.

 

Let me create another sentence with similar structure:

"The price of beans being low, people should buy up as many beans as they can."

 

Now, tell me... does this mean that you should buy beans when the cost of beans is high?

 

Argue what you want about whether people should have the right to own guns, but the amendment on it's own is clear as day to anyone who speaks English at a 4th grade level.

 

It takes a mere entry level comprehension to understand your statement.....so wingnuts need not qualify. They hate judicial activism...unless it is for something they want...then it is ok. As for me, I am for interpreting the constitution in the context of the day. I think the justices should practice some activism here.....but....that is my opinion. If supporters of strict constructionism want what they say...they support judicial activism too.

[Jimmy Neutron]

I don't think think a SCOTUS ruling that defines the 2nd as an individual right would be judicial activism - just over-due common sense.

 

The founders believed the people have the right and responsibility to overthrow bad government - the blood of tryants and all that. How are citizens to do that without arms?

 

The founding fathers were much more concerned about the dangers of a standing army than an armed citizenry. Anyone reading the Constitution and believing the founders were afraid of the people having too much power are just flat Clearly, the were afraid of government growing too strong and placed a number of measures in the Constitution to prevent that.

[Bill Swerski]

I don't think think a SCOTUS ruling that defines the 2nd as an individual right would be judicial activism - just over-due common sense.

 

The founders believed the people have the right and responsibility to overthrow bad government - the blood of tryants and all that. How are citizens to do that without arms?

 

The founding fathers were much more concerned about the dangers of a standing army than an armed citizenry. Anyone reading the Constitution and believing the founders were afraid of the people having too much power are just flat Clearly, the were afraid of government growing too strong and placed a number of measures in the Constitution to prevent that.

 

Good points.

[Jimmy Neutron]

From today's oral arguments:

 

JUSTICE SOUTER: Can we also look to current conditions like current crime statistics?

 

MR. GURA: To some extent, Your Honor, but we have certainly --

 

JUSTICE SOUTER: Well, can they consider the extent of the murder rate in Washington, D.C., using handguns?

 

MR. GURA: If we were to consider the extent of the murder rate with handguns, the law would not survive any type of review, Your Honor.

 

JUSTICE SCALIA: All the more reason to allow a homeowner to have a handgun.

 

MR. GURA: Absolutely, Your Honor.

 

I don't always agree with Scalia, but I like his style.

[Jimmy Neutron]

Whole transcript of today's oral argument if anyone is interested:

 

[TheShiznit]

I don't think think a SCOTUS ruling that defines the 2nd as an individual right would be judicial activism - just over-due common sense.

 

The founders believed the people have the right and responsibility to overthrow bad government - the blood of tryants and all that. How are citizens to do that without arms?

 

The founding fathers were much more concerned about the dangers of a standing army than an armed citizenry. Anyone reading the Constitution and believing the founders were afraid of the people having too much power are just flat Clearly, the were afraid of government growing too strong and placed a number of measures in the Constitution to prevent that.

ARe you a strict constructionist....because you are sounding like one searching for a reason to allow judicial activism. All you have to say is...ok...there is some judicial activism I disagree with...that is ok...I am just trying to gauge what you are trying to say here and tie it to a philosphy of which process of judicial review you accept as correct.