It Does Not Appear They Will Ever Get It Right

[anygunanywhere]

After reading through all of the analysis and commentary over the Heller decision I have to say that all nine justices still do not understand what shall not be infringed means.

Furthermore, the majority will never understand that any restriction that prevents lawful citizens from exercising their RKBA is an infringement.

Anygunanywhere

[Venus Pax]

I was pleasantly surprised with the Heller decision, but was disappointed in the conditions.

Unfortunately, citizens of dictatorial municipalities still have an up-hill battle on their hands.

[DParker]

After reading through all of the analysis and commentary over the Heller decision I have to say that all nine justices still do not understand what shall not be infringed means.

Furthermore, the majority will never understand that any restriction that prevents lawful citizens from exercising their RKBA is an infringement.

Anygunanywhere

Actually, several of them most certainly do understand what it means. Fortunately, they also understand what their job is, which is to rule on the issue before them. In this case, it was the constitutionality of two specific DC statutes.

[HerbM]

Actually there could in THEORY be a gun control law or infringement that is constitutional, but it would need to pass strict scrutiny or some very similar test:

1) Serve a compelling state interest

2) Be narrowly tailored

3) No less restrictive means to server the interest

What is overlooked by gun ban and control advocates is that the interest must be truly compelling (not just nice to have) and the infringement must actually be a provable method to server it. It cannot just "sound good" or "sound reasinable" but must provably work, and there must not be a less intrusive way to accomplish the goal.

Examples that pass would be Fire Marshal regulations that set maximum numbers of persons who may be present in a meeting room. Such laws must be applied only where they are necessary, equally applied to everyone (police union, city council, Greenpeace or the NRA) -- such cannot be used to prevent some group that makes the government uncomfortable from meeting.

Similarly, parade permits for LARGE demonstrations can be required, but they cannot be priced excessively or so difficult to obtain that it prevents some groups from exercising the rights of assembly or free speech. And it must be provably shown that there is some reason for this, such as allowing the police to make reasonable arrangements for overtime or other manpower to ensure safety.

There are NO GUN CONTROL laws which can pass this as none of them can be shown to work to reduce any of violent crime, murder, suicide, nor accidents.

With 2.6 Million Defensive Gun Uses annually in the US and even some evidence that allowing law-abiding citizens to keep and carry firearms reduces crime, the gun control argument is likely impossible to even approach, much less ever make successfully if we insist on such constitutional tests of 'reasonableness'.

Also note, that the bad behavior of one person cannot be used to remove a right from someone else. Laws requiring voter fees (poll taxes) and reading tests before voting have long been struck down.

No law that requires any excessive fee or test for exercising a right is going to survive strict scrutiny -- and excessive is merely means that it is appreciably prevents the poor or the minority group from fairly participating.

Note that disallowing criminals from owning firearms is NOT a "gun control" law but rather a criminal control and punishment issue that requires due process. This is precisely parallel to infringing the freedoms of the convicted criminal, e.g., prison, loss of voting rights, RKBA, etc.

Less intrusive method to achieve crime control? Remove the 4th Amendment protections for anyone who (after due process) loses their 2nd Amendment protections. This is certainly less intrusive on the law-abiding and only punishes those who have committed actual crimes.

Mor than 90% of murders have prior felony records, documented spouse abuse, documented criminal gang membership, or documented drug/alcohol abuse. If you include illegal aliens and those with (sealed) juvenile records with violations equivalent to felonies it goes even higher. And oddly enough, most (a large majority) of the victims are similar or actually drug/alcohol intoxicated at the time of death.

Are guns used in crimes, especially murders? Yes, by people who cannot legally possess them due to their own bad behavior.

[soccerguy59]

[anygunanywhere]

Actually, several of them most certainly do understand what it means. Fortunately, they also understand what their job is, which is to rule on the issue before them. In this case, it was the constitutionality of two specific DC statutes.

Well, I disagree.

You are correct that they did stick to the questions they stated they would decide.

They are cowards.

The court was deciding on a fundamental right. They had the opportunity to finally lay the framework on the constitutional guidelines this fundamental right should enjoy.

If the court had decided on Roe v Wade in this manner they would have said you could only abort on Tuesday morning from 10:00 to 11:00 am.

The court has gone much further on much less important rights issues than our RKBA.

Anygunanywhere

[DParker]

Actually, several of them most certainly do understand what it means. Fortunately, they also understand what their job is, which is to rule on the issue before them. In this case, it was the constitutionality of two specific DC statutes.

Well, I disagree.

You are correct that they did stick to the questions they stated they would decide.

Which is precisely what they're supposed to do.

They are cowards.

That's funny. When they take it upon themselves the power to do more than they're supposed to and we don't like the result we call them (quite properly) "judicial activists". But when they restrict themselves to deciding a case in a manner that is proper for the court's role they're "cowards".

The court was deciding on a fundamental right. They had the opportunity to finally lay the framework on the constitutional guidelines this fundamental right should enjoy.

They layed the framework to the extent that the case before them warranted.

If the court had decided on Roe v Wade in this manner they would have said you could only abort on Tuesday morning from 10:00 to 11:00 am.

That the court erred greviously in Roe is not a justification for overstepping their bounds in yet another case.

The court has gone much further on much less important rights issues than our RKBA.

See above. The solution to a SCOTUS run amok is not even more lack of judicial restraint.

[anygunanywhere]

See above. The solution to a SCOTUS run amok is not even more lack of judicial restraint.

Great. The court only rules in excess on issues that are counter to the constitution and BOR and never in the direction to preserve more of our fundamental rights.

That makes a lot of sense.

Time to read UC again.

Anygunanywhere

[casingpoint]

If the court had decided on Roe v Wade in this manner they would have said you could only abort on Tuesday morning from 10:00 to 11:00 am

That's good. That's really good.

[stevie_d_64]

Although I am extremely glad I was wrong (as previously, and as tongue-n-cheek as I was last year about this issue)...I figured we were at least assured of a 5-4 decision on the individual right debate...

Then I stopped reading the opinion after the word "but"...

The war rages on folks...

At least it keeps us in business here, right???

[stevie_d_64]

If the court had decided on Roe v Wade in this manner they would have said you could only abort on Tuesday morning from 10:00 to 11:00 am

That's good. That's really good.

I agree, touche'!!!

[KD5NRH]

Note that disallowing criminals from owning firearms is NOT a "gun control" law but rather a criminal control and punishment issue that requires due process. This is precisely parallel to infringing the freedoms of the convicted criminal, e.g., prison, loss of voting rights, RKBA, etc.

More to the point, disallowing courts from removing the second amendment rights by due process would be making it rather unique, since even the right to life can be removed in the same manner.

My problem with it is the number of offenses inappropriately deemed felonies, and the fact that losing the 2A rights is part of a "standard package deal" for all felons. There should be far more tailoring of the removal of rights, i.e. violent felons should be denied access to all types of weapons, others should be barred from certain employment, etc.

[anygunanywhere]

Since the other thread on Heller continuing the infringement took off on a sexual predator track for some reason I will post this here. The emphasis in bold is mine and not in the original.

Anygunanywhere


The Heller Misdirection

http://www.lewrockwell.com/grigg/grigg-w32.html


The Heller Misdirection

by William Norman Grigg




"A nation of slaves is always prepared to applaud the clemency of their master, who, in the abuse of absolute power, does not proceed to the last extremes of injustice and oppression.

~ Edward Gibbon, Decline and Fall of the Roman Empire.

Like the inhabitants of other formerly free societies, Americans are content to define "freedom" in terms of those liberties we are permitted to exercise. Yesterday's Supreme Court ruling in District of Columbia v. Heller (.pdf) is perfectly in harmony with this self-defeating concept of "freedom."

It is entirely appropriate that the decision was written by Antonin Scalia, the most reliably authoritarian and consistently liberty-aversive member of the Court. With an air of regal condescension, Scalia allows that the Second Amendment acknowledges and protects an individual right to armed self-defense. He then explicitly limits the extent to which that "right" can be exercised, thereby redefining it as a State-conferred privilege.

We can't really expect a statist creature like Antonin Scalia to embrace the view that the right to keep and bear arms includes the right of citizens, acting either individually or collectively, to kill agents of the state when such action is necessary and morally justified. Any other view of the Second Amendment is worse than useless; this is certainly true of the view that emerges in Scalia's Heller opinion.

"The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home," summarizes Scalia at the beginning of his opinion (emphasis added).

A few paragraphs later Scalia elaborates a bit on the implied limitations of the "right" he describes. Insisting that previous Court rulings effectively limit "the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes," he asserts: "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.... 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." (Emphasis added.)


When government grants a liberty and then restricts the manner in which it can be used, the result is not a right, but a limited, conditional license. Scalia's passage cited above will inevitably be seen as a license from the court for legislative bodies to enact, or fortify, laws against "dangerous and unusual" weapons – such as the scary-looking guns ritually denounced as "assault weapons, for example. And other even more troubling portions of his opinion will abet further restrictions on the purposes for which firearms can be used.

At various points in his opinion, Scalia brushes up against the radical origins of the Second Amendment. For example: "The Antifederalists feared that the Federal Government would disarm the people in order to disable [the] citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved." (Pg. 2; see also 22–28)

The clear implication here is that the "ancient right of individuals" to armed self-defense includes the right to organize for the purpose of insurrection against a tyrannical government. Scalia revisits that theme in reviewing efforts by George III's government to disarm American colonists (pg. 21). Discussing the ancient origins of the right, Scalia notes that "the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents" (pg. 19). He quite usefully admits that "when able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny" (pp. 24–25), without teasing any specific application from that provocative observation.

Although he draws only scantily from the vast corpus of insurrectionary writings by the Founders that deal with the right to armed self-defense (the most notable being Madison's endorsement, in Federalist essay 45, of direct military action against a tyrannical central government), Scalia does cite some interesting literature of that sort from the mid-19th century.

For instance, he quotes John Norton Pomeroy's 1868 book An Introduction to the Constitutional Law of the United States, which stated that the Second Amendment would make no sense unless it enables citizens "to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms...." (emphasis added).

From the foregoing it's clear that Scalia is aware of the insurrectionary origins and purpose of the Second Amendment. Passages of that sort are scattered through the 67-page opinion and left without significant elaboration.

What's even odder is the fact that Scalia, drawing on Joseph Story's immensely influential Commentaries, that the "free state" to be defended by the people under arms is not the individual state they inhabit – as the Founders would have understood – but rather the unitary nation created as a result of the Union victory in the War Between the States (pg. 24).

Scalia appears to be saying that while the right to bear arms was associated with the colonial and state militias, that right does not exist exclusively to carry out that function. But he also seems to assert that since the modern "militia" is an institution controlled by the central government and devoted to its protection, there's no longer a legitimate right to armed self-defense against the government.

On this point, Scalia's analysis is difficult to distinguish from that offered by the dissenting judges, who would simply dispense with the right to bear arms entirely, rather than paying lip-service to it while denying its chief purpose and encouraging various encumbrances on it, as Scalia does.

"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," Scalia concludes. "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."

Indeed not: Scalia's opinion suggests that the role of the Court is to placate key elements of the Republican coalition while suggesting alternative routes to those who seek the eventual abolition of the right that was once protected by the Second Amendment. While Scalia's ruling reinforces one of the few effective rallying points for the demoralized Republican Party ("This year's election is all about the judges!"), it does nothing of substance to defer the day when some judge or president will be able to pronounce the Second Amendment extinct.

This point simply can't be emphasized too often: The innate right of armed self-defense exists whether any government chooses to recognize it. What made the Second Amendment unique was its recognition of the fact that in the constitutional scheme, the government does not have a monopoly on the legitimate use of force. Scalia, like many statist jurists before him, insists that the permissible civilian uses of firearms are all defined within that government-exercised monopoly on force; they are temporary concessions that can be redefined by our rulers at whim.

In a genuinely free society, citizens would enjoy the unqualified liberty to acquire weapons of any sort, in any quantity they pleased, for the specific purpose of being able to out-gun the government and its agents when such action would be justified.

Most Americans, as ignorant of our heritage of principled insurrection as they are well-versed in the ephemera of degenerate pop culture, would find such sentiments abhorrent. In that fact we see that – whatever may be the status of our current "right" to keep and bear arms – the intellectual and psychological disarmament of our population is nearly complete.

June 30, 2008

William Norman Grigg [send him mail] writes the Pro Libertate blog.

Copyright © 2008 William Norman Grigg