SCotUS Rules: 2nd Amendment Secures An Individual Right

[WhiteFeather]

Kim Stolfer made up this Heller review as handout for Firearm Owners Against Crime table at Washington County gun show.

The affirming and two dissenting opinions are in a 157 page document that can be downloaded here:
http://www.scotusblog.com/wp/wp-content/ uploads/2008/ 06/07-290. pdf

These are our conclusions after reading the USSC Heller decision the first time:

1. It says a blanket ban on popular self-defense guns, like handguns, are unconstitutional ( Chicago , here we come!).

2. It held a trigger lock and disassembly requirement, which makes the firearm useless for self-defense, is also unconstitutional. (Yes!)

3. It does allow for a locality to require a license to possess a firearm in the home (ugh), but requires that such license be forthcoming and not denied arbitrarily and capriciously.

4. It says that carrying a gun in a person's home is protected, but is silent on carrying outside the home. (That's because the Heller case didn't address carry outside the home.)

5. It says that carrying CONCEALED firearms can be restricted or prohibited (ugh).

6. It says that long-standing prohibitions on the possession of firearms by felons (they should have said 'violent felons' in my opinion) and the mentally ill are OK.

7. It also says that prohibiting carry in "sensitive" locations like schools and government buildings are OK. (This is way too broad and most government buildings are not sensitive. Military and government intelligence buildings, yes. DMV or most other local/state government buildings, no.)

8. Conditions and qualifications can be imposed on the commercial sale of arms (like requiring a background check, apparently). Such conditions and qualifications not being overly restrictive is not addressed.

9. "Dangerous and unusual weapons" are not protected (they consider machine guns to be such a weapon since most people do not own them).

Overview:
• The logic in saying machine guns are not protected because most people don't own one for self--defense (and hence are "unusual") is a circular one. More people WOULD own machine guns if they were EASY and INEXPENSIVE to get! But they aren't because of existing laws that infringed on the ownership of such guns put in place back in 1934 and 1968. Sheesh.

• So the end result is a mixed bag. People in DC (and hopefully soon, Chicago) can now have a loaded gun, including a handgun, in their home for self-defense and can move said gun around freely within their home.

• It allows for a license requirement to have such a gun, but requires the license be forthcoming and not denied on a whim.

• It does not protect concealed carry in any way nor does it require permits to do so not be arbitrarily and capriciously denied. This is a battle that will have to be fought another day and one that is quite possibly winnable.

• Bans on carry in schools and government buildings and perhaps other "sensitive" locations are constitutional. Because "sensitive" is not clearly defined, this is going to be a headache.

[awkx]

3. It does allow for a locality to require a license to possess a firearm in the home (ugh), but requires that such license be forthcoming and not denied arbitrarily and capriciously.

On my understanding, the Court didn't even consider the question of whether licensing is constitutional, since Heller indicated that a license would answer his prayer for relief: "We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement" (page 59).

6. It says that long-standing prohibitions on the possession of firearms by felons (they should have said 'violent felons' in my opinion) and the mentally ill are OK.

It seems that these were just mentioned in passing as examples of what might be constitutional. If the prohibited-felon issue is put before them in an actual case, then the Court is not bound by stare decisis to give any weight to what was said in Heller about felons being prohibited. Of course, what the nine Justices say about felons here is a good indication that the prohibition will be upheld if it comes before them in a future case, but perhaps in an actual case they'll treat it with more nuance (such as only applying it to violent felons, or not applying it to a felon whose other civil rights have been duly restored.)

7. It also says that prohibiting carry in "sensitive" locations like schools and government buildings are OK. (This is way too broad and most government buildings are not sensitive. Military and government intelligence buildings, yes. DMV or most other local/state government buildings, no.)

Again, just mentioned as what might be upheld as not infringing the right to bear arms. Prohibiting firearms in court-houses will almost certainly be upheld, but perhaps they might rule that weapon lockers need to be provided to the public. No-carry in schools might be upheld just because of the "ZOMG!! THE CHILDREN!!!" factor, in defiance of all rational argument.

8. Conditions and qualifications can be imposed on the commercial sale of arms (like requiring a background check, apparently). Such conditions and qualifications not being overly restrictive is not addressed.

Again, just obiter dicta, not an actual holding of the Court. No arguments were presented that licensing would infringe. If good arguments are presented in a future case, then background checks might be invalidated as akin to prior restraint. (But I'm not holding my breath waiting.)


Also, incorporation against the several states, via the 14th Amendment, is still up in the air. The court commented that Cruikshank's holding (that the 2nd Amendment limits only the federal gov't, not the states) is of questionable continuing validity, since its analysis of the 14th Amendment has been overturned by later decisions beginning in the 1920s.

[WhiteFeather]

http://online.wsj.com/article/SB1214...pinion_main_re

Silver Bullet
June 27, 2008; Page A12

The 2008 Supreme Court term ended with a bang yesterday as the Justices issued their most important ruling ever in upholding an individual right to bear arms. The dismaying surprise is that the Second Amendment came within a single vote of becoming a dead Constitutional letter.

That's the larger meaning of yesterday's landmark 5-4 ruling in D.C. v. Heller, the first gun control case to come before the Court in 70 years. Richard Heller brought his case after the Washington, D.C. government refused to grant him a permit to keep a handgun in his home. The District has some of the most restrictive handgun laws in the country – essentially a total ban. The D.C. Circuit Court of Appeals, in a 2-1 decision by Judge Laurence Silberman, overturned the ban in an opinion that set up yesterday's ruling by taking a panoramic view of gun rights and American legal history.

In writing for the majority, Justice Antonin Scalia follows the Silberman Constitutional roadmap in finding that the "right of the people to keep and bear arms" is an individual right. The alternative view – argued by the District of Columbia – is that the Second Amendment is merely a collective right for individuals who belong to a government militia.

Justice Scalia shreds the collective interpretation as a matter of both common law and Constitutional history. He writes that the Founders, as well as nearly all Constitutional scholars over the decades, believed in the individual right. Many Supreme Court opinions invoke the Founders, but this one is refreshing in its resort to first American principles and its affirmation of a basic liberty. It's not too much to say that Heller is every bit as important to the Second Amendment as Near v. Minnesota (prior restraint) or N.Y. Times v. Sullivan (libel) are to the First Amendment.

Which makes it all the more troubling that no less than four Justices were willing to explain this right away. These are the same four liberal Justices who routinely invoke the "right to privacy" – which is nowhere in the text of the Constitution – as a justification for asserting various social rights. Yet in his dissent, Justice John Paul Stevens argues that a right to bear arms that is plainly in the text adheres to an individual only if he is sanctioned by government.

Justice Breyer, who wrote a companion dissent, takes a more devious tack. He wants to establish an "interest-balancing test" to weigh the Constitutionality of particular restrictions on gun ownership. This balancing test is best understood as a roadmap for vitiating the practical effects of Heller going forward.

Using Justice Breyer's "test," judges could accept the existence of an individual right to bear arms in theory, while whittling it down to nothing by weighing that right against the interests of the government in preventing gun-related violence. Having set forth this supposedly neutral standard, Justice Breyer shows his policy hand by arguing that under this standard the interests of the District of Columbia would outweigh Mr. Heller's interest in defending himself, and the ban should thus be upheld.

But as Justice Scalia writes, no other Constitutional right is subjected to this sort of interest-balancing. "The very enumeration of the right takes [it] out of the hands of government" – even the hands of Olympian judges like Stephen Breyer. "Like the First, [the Second Amendment] is the very product of an interest-balancing by the people – which Justice Breyer would now conduct for them anew."

In that one sentence, Justice Scalia illuminates a main fault line on this current Supreme Court. The four liberals are far more willing to empower the government and judges to restrict individual liberty, save on matters of personal lifestyle (abortion, gay rights) or perhaps crime. The four conservatives are far more willing to defend individuals against government power – for example, in owning firearms, or private property (the 2005 Kelo case on eminent domain). Justice Anthony Kennedy swings both ways, and in Heller he sided with the people.

Heller leaves many questions unanswered. Contrary to the worries expressed by the Bush Administration in its embarrassing amicus brief, the ruling does not bar the government from regulating machine guns or other heavy weapons; or from limiting gun ownership by felons or the mentally ill. Any broad restriction on handguns or hunting rifles will be Constitutionally suspect, but legislatures will still have room to protect public safety.

Heller reveals the High Court at its best, upholding individual liberty as the Founders intended. Yet it is also precarious because the switch of a single Justice would have rendered the Second Amendment a nullity. With the next President likely to appoint as many as three Justices, the right to bear arms has been affirmed but still isn't safe.

[WhiteFeather]

http://www.libertybelles.org/articles/2adecision.htm

Understanding the 2A Decision
by Jennifer Freeman


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.

On Thursday, June 26, 2008, the United States Supreme Court released its decision in the case of D.C. vs. Heller. The majority of the 5-4 decision clarified, for the first time in U.S. history, the legal understanding of the Second Amendment. The comprehensive opinion states unequivocally that the Second Amendment applies to individual citizens.

The majority opinion also addresses a variety of issues associated with the Second Amendment including licensing, background checks, and types of firearms allowed. These issues are addressed broadly, however, so we can expect additional legislation, debate, protests, and potential lawsuits in the coming years as we attempt to narrow down the Court's opinion.

We would like to take this opportunity to review the Court's opinion and discuss its possible ramifications. This article will provide relevant quotes to give the reader an understanding of the majority view, without quoting the entire opinion. If you would like to read the opinion in full, please click here.

Individual Right

"The Second Amendmend 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." (page 1)

"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.'" (19)

"We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisiting of all the able-bodied men was not by banning the militia but simply by taking away the people's arms, enabling a select militia but simply by taking away the people's arms, enabling a select militia or standing army to suppress political opponents." (25)

"It is therefore entirely sensible that the Second Amendment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia." (26)

Semi-Automatic Firearms / Background Checks / Concealed Carry

"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller's holding that the sorts of weapons protected are those 'in common use at the time' finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons." (2)

"Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. 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, 35-36 (2001), the Second Amendment extends, prima facie to all instruments that consitute bearable arms, even those that were not in existence at the time of the founding." (8)

"We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase 'part of ordinary military equipment' could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller's 'ordinary military equipment' language must be read in tandem with what comes after: '[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and the kind in common use at the time.'" (52)

"We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." (53)

"We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those 'in common use at the time.' 307 U.S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'" (55)

THE GOOD NEWS:

The Second Amendment codifies a pre-existing right to keep and bear arms for the purpose of self and national defense.


The D.C. ban on handgun ownership and possession in the home is unconstitutional and therefore is null and void, effective approximately 21 days from 6/26/08. Check with local law enforcement before exercising this right.


Laws requiring mandatory use of trigger locks is unconstitutional.


The Second Amendment applies to firearms in common use of our time; i.e., it is not limited to muskets.

THE BAD NEWS:

Government can require firearm ownership licensing and firearm registration.

Government can ban private-party transfer of firearms.

Government can ban certain types of firearms. This will be debated heavily in the future as to what constitutes firearms of "common use" is expected to be challenged in court.

Government can deny Concealed Carry Weapon permits.

THE WORST POSSIBLE SCENARIO

Expect anti-gun cities and states to impose a very narrow interpretation of this ruling which will likely be debated in the legislature and argued in the courts.

Ban on all firearms with the exception of handgun revolvers.

Mandatory (and possibly expensive and complicated) licensing procedures.

Ban on concealed carry permits.

Lengthy waiting periods despite passing an instant background check.

Magazine capacity restrictions.

Unwarranted government red tape, lost paperwork, incorrectly denied paperwork, etc.

BEST POSSIBLE SCENARIO

Pro-gun cities and states can expect to maintain the status quo including:

Private party transfers.
Instant background checks with no waiting periods.
No restrictions on semi-automatic firearms or revolvers.
Shall issue concealed carry.

It is also possible that legislators at the federal level may attempt national: Licensing requirements, bans on certain types of firearms, waiting periods, etc. Your vote is just as essential today as it was yesterday. The fat lady isn't singing just yet.


Jennifer Freeman is Executive Director and co-founder of Liberty Belles, a grass-roots organization dedicated to restoring and preserving the Second Amendment.

http://www.libertybelles.org
jennifer@libertybelles.org

[WhiteFeather]

Thought this article would fit best here.

http://www.latimes.com/news/nationwo...,7778286.story
Guns still elusive for D.C. residents
Those looking to buy firearms after the Supreme Court ruling against the District of Columbia's gun ban are out of luck. Purchasing regulations have yet to be written.

July 5, 2008
WASHINGTON -- Days after the Supreme Court ruled that residents of the nation's capital can keep handguns at home for self-defense, George Harley walked out of a Maryland gun shop disheartened, his goal of legally having a gun to protect his family put on hold.

Since before Harley, 30, was born, the District of Columbia has restricted its residents' ownership of handguns. After the high court's ruling was handed down late last month, Harley was one of several dozen Washington residents who came to the Atlantic Guns shop in Silver Spring, Md., just over the district line, to ask about buying a gun.


-------------------------------------------------------------------------FOR THE RECORD:
Handgun ban —An article in Saturday's Section A on District of Columbia residents interested in legally purchasing handguns referred to a federal ban on the transport of firearms across state lines. In fact, the ban prohibits the purchase of a handgun in a state in which the buyer is not a resident unless the weapon is transferred for pickup to a federally licensed firearms dealer in the buyer's home state.

-------------------------------------------------------------------------


They were all told the same thing: Go home.

"Presently, there's no change to anything," said Atlantic Guns owner Stephen Schneider. "There's no procedure in place for them to purchase a handgun because regulations haven't been written."

Washington Mayor Adrian M. Fenty has vowed to have the strictest gun laws possible, and the city's plans for the registration process, expected to be released in about two weeks, is being closely watched.

"If the mayor was smart, he would have kept his mouth shut," said Deborah Curtis, co-owner and general manager of Blue Ridge Arsenal in Chantilly, Va., referring to Fenty's vocal support of strict regulations. "It just got people up in arms. He should have just let it play out."

On Tuesday, District of Columbia Council member Phil Mendelson introduced legislation to put the city in compliance with the Supreme Court ruling by allowing residents to have handguns in their homes for self-defense. Under normal circumstances, the bill, which has unanimous support, would be voted on in September, after the council returns from a summer break, but action could come sooner if emergency legislation is introduced, said Jason J. Shedlock, an aide to Mendelson. The council's last session before the recess is July 15.

Even after guidelines are finalized, though, it's unclear how long it will take for Washingtonians to legally have handguns in their homes.

For instance, the federal ban on the transport of firearms across state lines means that gun shops outside the district could sell to a city resident, but the buyer could not leave the store with a weapon. The seller would have to transfer the gun to a federally licensed dealer in Washington, and the buyer would pick it up there. But there are no federally licensed gun shops in the district, police said.

Nor does there appear to be a rush by gun dealers to open a shop in the city. The firearms registration section of the Metropolitan Police Department has received only a trickle of inquiries. As of Thursday afternoon, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, the first contact for anyone wanting to open a gun shop, had received no applications, said Mike Campbell, a spokesman for the Washington field division.

If city officials "were to impose regulations [for opening gun shops] that imposed bureaucratic hurdles, they would face legal battles," said Robert A. Levy, a constitutional scholar at the Cato Institute, a libertarian policy research center. Levy recruited the plaintiff in the Supreme Court case and served as co-counsel. "If we find that those requirements are too burdensome, it would be a . . . violation of the court's ruling."

Curtis, whose gun shop is about 30 miles west of the Capitol, said she wouldn't consider opening a store in Washington. "For the average gun shop owner, you're not going to get rich selling," she said. "We don't live like that Nicholas Cage movie, 'Lord of War' " -- the story of an illegal arms dealer.

Bernie Conatser, owner of Virginia Arms Co. in Manassas, Va., said he watched the Supreme Court decision closely, but not strictly for business reasons.

"I don't think we had anything to gain from a financial perspective, at least in the short term," he said. "But the decision will have a far-reaching impact on 2nd Amendment rights."

The Supreme Court ruling has intensified a long-standing debate in the city, which battled a high crime rate both before and after the 1976 gun ban took effect. Last year, 181 homicides were recorded, a significant decline that came amid a national decrease in violent crime.

Harley, who lives in northeast Washington, just inside the district, said he wouldn't describe himself as a gun enthusiast. If he really wanted a gun, he said, he would be living a mile away in Maryland.

But he said he remembers when the city was dubbed the "murder capital" in the early 1990s.

He reads the newspaper daily, he said, and hears about home-invasion robberies. And if something like that happens in his home, he said, he wants the security of a firearm to protect his wife and his 5-year-old daughter.

"Sit and wait," he said. "That's all we can do."

As he walked his dog in the Dupont Circle neighborhood Tuesday evening, another city resident, Costa Tsantalis said that he once opposed the gun ban -- but that was before he was a police officer in Norfolk, Va.

"I used to say, 'We should let the good guys have them, too,' " Tsantalis said as his Rhodesian ridgeback-pit bull mix eyed a squirrel. "But just seeing the staggering stupidity of people and their inability to control themselves, even good people, changed my mind."

Still, he said, he wants to buy a handgun for self-defense as soon as the law allowed.