The Smallest Minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities. - Ayn Rand
On a blatant violation of an enumerated right.
Shit almighty, that was close.
This shit is starting to get far too important to leave to lawyers and the small gods on the USSC.
2 of the disenters were nominated by Republicans Stevens - Ford SOuter - Bush 1
So licensing and registration is not "infringement."
Even worse, licensing for carry IN THE HOME, not even "in public"!
"Just as the First
Amendment protects modern forms of communications,
e.g., Reno v. American Civil Liberties Union, 521 U. S. 844,
849 (1997), and the Fourth Amendment applies to modern
forms of search, e.g., Kyllo v. United States, 533 U. S. 27,
3536 (2001), the Second Amendment extends, prima
facie, to all instruments that constitute bearable arms,
even those that were not in existence at the time of the
Full auto? Really?
I gotta make some more tea ...
Tam said: "It's an individual right, but only not."
I'm A little miffed at the license in the home thing. Geez, talk about giving you a victory with a Trojan Horse built in. That horse is called 'Registration'.
A decision the other way would have moved the over-under to five years. This leaves it where it was, at about 20.
Actually, their bit on the licensing was probably twofold. 1. It's a standing issue, and while the 4 might have been willing to overlook it, do you think Kennedy would have stayed with the Scalia opinion if they did? and 2. Even if Heller had standing do you think that Kennedy would have voted to strike down licensing? I'm betting not. Which means that even for the Justices it was a matter of taking what they could get.
The grounds are laid for some serious challenges to existing law:
"In Muscarello v. United States, ..., in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict
with another person.’” Id., at 143 (dissenting opinion)(quoting Black’s Law Dictionary 214 (...)). We think that JUSTICE GINSBURG accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization."
It appears that we have the right to keep arms in our homes and to carry them upon our persons, or in our clothing, or in our pockets, for the purpose of being armed and ready for defensive action in case of a conflict with another person.
That sounds better every time I read it!
"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."
I read this, not as saying that licensing is constitutional, but that they're saying that since it wasn't challenged they're not going to profer an opinion on the consitituionality of said licensing. Should that argument have been made they might have ruled on it, but it wasn't so they're leaving alone for now.
Methinks you're right, Andrew.
I gotta just stop commenting and read the whole thing:
"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, ..., “[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 ...”
A 5-4 decision, but the right decision!
When it's being responsible, SCOTUS hates doing more than resolving more than the absolute minimum it can get away with. The challenge was basically "Is there any reasonable way Mr. Heller can ever possess a readily-usable firearm in DC?" and SCOTUS said that there is and spoke on the specific restrictions in place. The matter of non-licensed carry of non-registered firearms wasn't a "case or controversy" under consideration and so SCOTUS glossed over it.
Let's also not be too worried about the 5-4 decision. Part of the reason for disagreement seemed to be over the relationship of the right with militia service. I suspect that the emanating penumbra of "militia service" is broad enough that you could squeeze just about anyone old enough to use a gun into it. Even a person in a coma retains their right to free speech, and even an infertile couple can get married. As long as you can show that historically people of whatever category you choose have participated in militias, there's a decent argument that their right is sufficiently connected to the militia clause.
"Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously..."
Of all the dumbass, retarded concessions ever brought forth on the 2nd amendment, this one takes the cake. Who is their right mind would find "Shall not be infringed" ambiguous and concedes on this point?! WTF!
Do you now license individual RIGHTS?! Are they licensing speech yet?! I am happy with the ruling but this is completely unacceptable. Now, we have to go through another entire legal runaround to get this clarified against the plain text and very plain meaning.
Conceding something that isn't at issue isn't actually all that big of a deal. You can throw pretty much anything except your specific concern under the bus and it means precisely nothing in future cases. At issue was the right to have a working firearm in DC. The same attorney is completely free to argue in future cases that licensing is an abomination. He represents his client, not himself, and so the only restriction (other than normal legal ethics) I can think of is that perhaps a lawyer representing Mr. Heller in future cases couldn't argue against what was said.
To make a quick analogy, let's say you're playing soccer and you give up 14 goals but score 15. That you gave up so many goals is ludicrous, but it has no bearing at all on your next game and virtually no bearing on your season (and if you keep winning, it'll have none at all).
The licensing thing ISN'T BINDING.
The court "does not address the licensing requirement."
The court never answers questions it wasn't asked, and it wasn't asked whether "licenses are facial infringements."
If fact, you can't even ask that question at all until you establish whether the right is individual, and to what arms it pertains, both of which are finally, at long last, established firmly today beyond question.
It never should have gone this long.
"The licensing thing ISN'T BINDING.
The court "does not address the licensing requirement.""
They didn't have to address it now but because there is a reference to the concession in a landmark case, it is likely they will have to address in the future. It would have been much better if the concession wasn't even made and it wasn't referenced at all in the decision.
The licensing portion, not being the challenged issue, is merely dicta and isn't binding or even required to be addressed in the future. It's a possible foothold for the opposition in later cases, but it's also not a hurdle that we have to jump over in the future, either.
I telephoned my wife the news, and she said "That's nice. I know it was important for you." I replied that it was important for her too. I wonder how many folks who live in DC will now apply for licenses?
You're right, Geek. I might be wrong, but I think what this does is lay the groundwork for overturning licensing requirements, on the grounds that one doesn't need permission to exercise a right. Perhaps I'll live to see it.
GeekWithA.45, it's not dicta, but it is part of the opinion. Least you forget, that's where the very "collective rights" interpretation came from in the first place.
Anything we bring through the courts is going to have to deal with the lower courts, and that means pushing through the 9th, 7th, and 1st circuit. The more garbage like this that those circuits have to toy with, the more dangerous that's going to be.
"So licensing and registration is not 'infringement.'"
We knew that the case on our side was crafted very narrowly to present a specific question and get a specific answer. As pointed out above, the court "assumes that a license will satisfy..." _therefore_ "does not address the licensing requirement."
It's regrettable to have even that concession in there, but it's not irretrievable. There's a lot of red meat in the majority opinion otherwise. Enough to bring further court challenges, win more victories - and create more precedents. Its incrementalism in a sense, but taking significant steps each time.
This was a finely crafted case, designed to obtain a specific result - that the 2nd Amendment protects an inherent right to self defense using firarms.
Like the incremental court cases against racism and the Klan, and for free speech, this case is only a beginning. It took about 100 years for laws and court cases to result in the Klan losing a building of theirs as penalty in a lawsuit against them. It may take just as long to establish in the law and in court rulings absolute boundaries against the anti-individual-rights gun controllers.
Incrementalism is a useful policy where changes in public opinion have great force. Were this case tried just after WWII, I doubt the city officials would have survived the next election cycle to continue their appeals. Today, supporters of the natural, undeniable, human right of self defense won a victory in the US Supreme Court. This will be the foundation for many future victories.
Looks like the Illinois Rifle Association isn't wasting any time. They filed a challenge to Chicago's ban 15 minutes after the SCOTUS decision...
Today, supporters of the natural, undeniable, human right of self defense won a victory in the US Supreme Court. This will be the foundation for many future victories.
To paraphrase a wise man, today's decision is not the beginning of the end, but it sure looks a lot like the end of the beginning.
I would have been VERY disappointed if the decision was anything other than 5-4. Because a 6-3 or 7-2 decision would have meant giving up something in the strength of the final decision.
Think about what it would have taken to get an 8-1 or 9-0 decision. Would we have gotten anything like a categorical statement that the 2nd Amendment protects an individual right? Maybe the opinion would have simply said "oops DC, Dick Heller is a government security guard carrying a gun at work, so you should just let him have his license."
Scalia got absolutely everything he could while keeping Kennedy on board with the decision. Way to go, Scalia. Good job.
Parallel, I'll have to think about that. And it was a very narrowly defined case specifically in a non-state arena, so being dissappointed that the actual decision wasn't sweeping and broad is a bit silly, I admit. But I wanted something akin to LEADERSHIP from this crowd. God knows we don't get it from the Executive or Legislative branches. Something like BOLDNESS, or clarity of purpose. So yeah, I feel a bit let down that this crew only answered what they were asked about. But I would have been impressed as hell had they shown some backbone and gone for the BIG STATEMENT. But even this little statement was split 5-4. And all that tells me is that we have to elect McCain and he HAS to choose an actual Republican Conservative as VP. We can not afford another Stevens or Ginsburg on the bench.
But I wanted something akin to LEADERSHIP from this crowd. God knows we don't get it from the Executive or Legislative branches. Something like BOLDNESS, or clarity of purpose.
What, Boumediene and Kennedy weren't BOLD enough for you? ;-)
Licensing and registration, as long as they are not discriminatory, will survive whatever level of scrutiny the court devises.
Think of it this way: You have to register to vote, but you dont have to pass a literacy test.
It looks like you're going to have to pass a legal-knowledge test to get a handgun license in D.C., if Fenty gets his way.
Licensing and registration, as long as they are not discriminatory, will survive whatever level of scrutiny the court devises.
Think of it this way: You have to register to vote, but you dont have to pass a literacy test."
You have to register to vote as a means to prevent fraud, i.e. voting more than once. Yeah, it doesn't work well, but that's the idea.
Such reasoning doesn't apply to requiring a license to keep and bear arms. There is no right to vote, but there is a right to keep and bear arms. The behavior of the gubmint regarding the former should not be expected to the be same as for the latter.
Kevin, here's something you might find interesting:
This guy considers Heller to be 'conservative judicial activism' because it overturns legal precedents from 1939 forward. Apparently he completely misses the fact that it *affirms* legal precedents from before that, which were overturned in 1939.
The really sad and scary part is that this guy, apparently utterly ignorant of law predating 1939, is the Dean of Law at UC Irvine.
I would *soooo* love to see this guy post a comment here. I'm chuckling just *thinking* about the responses.
"Do you now license individual RIGHTS?! Are they licensing speech yet?!"
As a matter of fact, they are. It's called the FCC.
I have a piece upcoming about UC Irvine Dean Chemerenski. I think you'll find it interesting. Thanks for the link.
I look forward to hearing Chemerenski explaining away
Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.
If you can't answer that, you have no business addressing any other part of the decision.