Monthly Archives: June 2008

A Human Right, A Civil Right: Fundamental, Pre-existing, Strictly Scrutinized, Universal, and Incorporated

This morning, I’m noting a lot of ill informed …or perhaps just informed by misunderstanding of the text… opinions and statements regarding the historic Heller ruling on the scope and applicability of the 2nd amendment.

This of course is unsurprising when many people of varying levels of knowledge about law, history, and firearms have just a short time to digest a 90 page majority opinion and another 70 pages of dissents and cites.

In the table below, I’ve selected out the critical passages, and highlighted some of those I consider most instructive or important (bold for important, red for critical).

Briefly, I need to specifically address some points:

1. Incorporation: Scalia makes it clear in his majority opinion that the second amendment is a fundamental right, that must be treated the same as other fundamental rights such as the first amendment. He specifically notes it in respect to the 14th amendment NUMEROUS times. This decision will be applied universally within the domain of the court, and should be considered controlling upon the states (this is clarified in the later references by the way).

2. Universality: This decision applies to all within the jurisdiction of the court. Excepting prohibited persons (and there is a clear definition under federal law of who those persons are by the way), all individuals under the jurisdiction of U.S. law, have the right to keep and bear arms.

3. Scrutiny:
Again, this issue is clear. Though in the opinion itself Scalia does not explicitly state that second amendment issues should be reviewed with strict scrutiny, this is made clear in the text by equating the 2nd amendment with the first, 4th, 14th etc… Further, Scalia explicitly dismisses Stevens call for a “balance of interests” standard of medium scrutiny. This is in effect strict scrutiny, with certain well defined exceptions (such as for felons, the insane, and weapons of mass destruction).

4. Class III (machine guns and other): This one is mixed. Although the majority expresses that some restrictions are permissible, it also explicitly denies outright bans. It is clear that weapons that are in the common usage and available to citizens, are protected. That includes machine guns (machine guns are not illegal for the general public to own, they are just very expensive and tightly restricted). Although Scalia points out that Miller said it was OK to ban short barreled shotguns, he also noted that the decision is flawed, because it only took judicial notice of what was presented to the court, and the original apellant (Miller, though technically he was the respondent for the appeal to the supremes) never presented a case (he died before the date set for arguments, and his attorney didn’t bother to show up).

Based on my reading, I would say that the current law prohibiting the new manufacture of machine guns for civilian sale after May of 1986 (actually that’s not what it says, but that is how the ATF chose to interpret it) is out; after some long and difficult litigation. However, the door is open for other laws restricting such weapons, fi properly written to pass constitutional scrutiny.

This of course applies to other weapon types specifically targeted for bans; for example the requirement that all weapons imported into the United States have a “sporting purpose”, and that certain shotguns are considered “destructive devices” simply by arbitrary features; are also disallowed (again with the caveat that new laws could be written to pass a constitutional standard).

5. Scope: I think it is clear, though it will require significant litigation to hash out details; that no outright ban on any type of weapon (including machine guns as currently construed), excepting weapons of mass destruction, can stand muster. This means that all state “Assault weapons bans” will be struck down… eventually; along with magazine capacity bans, hollowpoint bullet bans etc… (though likely the ban on “armor piercing” handgun ammunition will continue).

I also think it is clear that there is significant room for licensing programs, and standards (including standards for weapons features and functionality)to be set, so long as the requirements for licensing are not discriminatory, arbitrary, capricious, or onerous. Of course, again, that is going to require years of litigation to define better.

I do think that clearly this means the end of Chicago gun laws, and most likely the radical reformation of laws in Massachusetts, New York, California, Hawaii, and New Jersey.

I should note that this does not mean universal “shall issue” concealed carry, but it almost certainly DOES mean that all states which allow concealed carry must allow it on a “shall issue” basis; using those standards as a guideline. Unless someone is a prohibited person, as spelled out under law since 1968, you MUST license them (presuming licensing exists).

Additionally, I believe this actually DOES set a requirement for lawful OPEN carry throughout the country; in that self defense is a recognized lawful, and traditional purpose of the bearing of arms.

And of course, this ruling does specifically allow for the restriction of carry of firearms in some ways, and some locations. As Scalia repeatedly says, no constitutionally protected rights are absolute (under the law).

Finally, any legislation that does not EXPLICITLY violate the above prohibitions, but would have the effect of doing so, is certainly disallowed. This means that standards for licensing, firearms design, dealer sale regulations etc… cannot be set so as to constitute an effective ban, or an onerous burden.

Now we just need to spend the next 15 years suing to define what constitutes an onerous burden.

Summary of Impact:
So you can’t ban guns, or any particular types of guns; you can’t keep anyone not a prohibited person from buying, owning, keeping, bearing, and using guns for all lawful purposes (including self defense); you can license and set standards for guns to be sold, and for persons to purchase, own, keep, and bear them; but those standards cannot be discriminatory, arbitrary, capricious, or onerous.

Oh and of course, that doesn’t get into the halo effect this has on other cases dealing with fundamental rights issues (remember how many times they state that this is simply protecting a pre-existing right).

Excerpts from the text of the majority decision:

Held:

1. 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…

… 2. 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.
Pp. 54–56.

3. The handgun ban and the trigger-lock requirement (as applied to
self-defense) violate the Second Amendment.

The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense.

Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster.

Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and
is hence unconstitutional.

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.

Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.

Affirmed..


* * *
We turn first to the meaning of the Second Amendment.

The Second Amendment provides: 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.”

In interpreting this text, we are guided by the
principle that “The Constitution was written to be understood
by the voters; its words and phrases were used in
their normal and ordinary as distinguished from technical
meaning.”

Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the
founding generation.

* * *

“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…

…This contrasts markedly with the phrase “the militia” in
the prefatory clause. As we will describe below, the “militia”
in colonial America consisted of a subset of “the people”—
those who were male, able bodied, and within a
certain age range.

Reading the Second Amendment as
protecting only the right to “keep and bear Arms” in an
organized militia therefore fits poorly with the operative
clause’s description of the holder of that right as “the
people.”

We start therefore with a strong presumption that the
Second Amendment right is exercised individually and
belongs to all Americans.

* * *

… 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.’ ”

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.

* * *

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, 92 U. S. 542, 553 (1876), “This 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”

* * *

There seems to us no doubt, on the basis of both text
and history, that the Second Amendment conferred an
individual right to keep and bear arms. Of course the
right was not unlimited, just as the First Amendment’s
right of free speech was not, see, e.g., United States v.
Williams, 553 U. S. ___ (2008). Thus, we do not read the
Second Amendment to protect the right of citizens to carry
arms for any sort of confrontation, just as we do not read
the First Amendment to protect the right of citizens to
speak for any purpose.

* * *

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 consisting of all the ablebodied
men was not by banning the militia but simply by
taking away the people’s arms, enabling a select militia or
standing army to suppress political opponents. This is
what had occurred in England that prompted codification
of the right to have arms in the English Bill of Rights.

The debate with respect to the right to keep and bear
arms, as with other guarantees in the Bill of Rights, was
not over whether it was desirable (all agreed that it was)
but over whether it needed to be codified in the Constitution.

* * *

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 of the kind in common use at the time.” 307 U. S., at
179. The traditional militia was formed from a pool of
men bringing arms “in common use at the time” for lawful
purposes like self-defense. “In the colonial and revolutionary
war era, [small-arms] weapons used by militiamen
and weapons used in defense of person and home were one
and the same.”

As for the “hundreds of judges,” who have relied on the
view of the Second Amendment JUSTICE STEVENS claims we endorsed in
Miller: If so, they overread Miller. And their erroneous reliance upon
an uncontested and virtually unreasoned case cannot nullify the
reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms.

In any event, it should not be thought that the cases decided by these judges
would necessarily have come out differently under a proper interpretation
of the right.

The amendment’s operative clause furthers the purpose announced
in its preface. 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
.

* * *

It should be unsurprising that such a significant
matter has been for so long judicially unresolved.
For most of our history, the Bill of Rights was not thought
applicable to the States, and the Federal Government did
not significantly regulate the possession of firearms by
law-abiding citizens.

Other provisions of the Bill of Rights
have similarly remained unilluminated for lengthy periods.
This Court first held a law to violate the First
Amendment’s guarantee of freedom of speech in 1931,
almost 150 years after the Amendment was ratified, see
Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and
it was not until after World War II that we held a law

invalid under the Establishment Clause, see Illinois ex rel.
McCollum v. Board of Ed. of School Dist. No. 71, Champaign
Cty., 333 U. S. 203 (1948).

Even a question as basic
as the scope of proscribable libel was not addressed by this
Court until 1964, nearly two centuries after the founding.
See New York Times Co. v. Sullivan, 376 U. S. 254 (1964).

It is demonstrably not true that, as JUSTICE STEVENS
claims, post, at 41–42, “for most of our history, the invalidity
of Second-Amendment-based objections to firearms
regulations has been well settled and uncontroversial.”
For most of our history the question did not present itself.

* * *

Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever
and for whatever purpose…

…Although we do not undertake an
exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should 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 ofarms.26
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.”

It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty.

It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at
large. Indeed, it may be true that no amount of small
arms could be useful against modern-day bombers and
tanks. But the fact that modern developments have limited
the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the amendment

* * *

We turn finally to the law at issue here.

As we have
said, the law totally bans handgun possession in the home.
It also requires that any lawful firearm in the home be
disassembled or bound by a trigger lock at all times, rendering
it inoperable. As the quotations earlier in this opinion demonstrate,
the inherent right of self-defense has been central to the
Second Amendment right.
The handgun ban amounts to a
prohibition of an entire class of “arms” that is overwhelmingly
chosen by American society for that lawful purpose.

The prohibition extends, moreover, to the home, where the
need for defense of self, family, and property is most acute.

Under any of the standards of scrutiny that we have applied
to enumerated constitutional rights,27 banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster….

… See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A
statute which, under the pretence of regulating, amounts
to a destruction of the right, or which requires arms to be
so borne as to render them wholly useless for the purpose
of defence, would be clearly unconstitutional”).

It is no answer to say, as petitioners do, that it is permissible
to ban the possession of handguns so long as the
possession of other firearms (i.e., long guns) is allowed. It
is enough to note, as we have observed, that the American
people have considered the handgun to be the quintessential
self-defense weapon.

There are many reasons that a
citizen may prefer a handgun for home defense: It is easier
to store in a location that is readily accessible in an emergency;
it cannot easily be redirected or wrestled away by
an attacker; it is easier to use for those without the upperbody
strength to lift and aim a long gun; it can be pointed
at a burglar with one hand while the other hand dials the
police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

* * *

After an exhaustive discussion of the arguments for and against
gun control, JUSTICE BREYER arrives at his interest balanced
answer: because handgun violence is a problem,
because the law is limited to an urban area, and because
there were somewhat similar restrictions in the founding
period (a false proposition that we have already discussed),
the interest-balancing inquiry results in the
constitutionality of the handgun ban. QED

We know of no other enumerated constitutional right
whose core protection has been subjected to a freestanding
“interest-balancing” approach. The very enumeration of
the right takes out of the hands of government—even the
Third Branch of Government—the power to decide on a
case-by-case basis whether the right is really worth insisting
upon.

A constitutional guarantee subject to future judges’ assessments
of its usefulness is no constitutional guarantee at all.

Constitutional rights are enshrined with the scope they
were understood to have when the people adopted them,
whether or not future legislatures or (yes)even future
judges think that scope too broad.

We would not apply an “interest-balancing” approach to the prohibition
of a peaceful neo-Nazi march through Skokie. See
National Socialist Party of America v. Skokie, 432 U. S. 43
(1977) (per curiam).

The First Amendment contains the freedom-of-speech guarantee
that the people ratified,which included exceptions for
obscenity, libel, and disclosure of state secrets,
but not for the expression of extremely unpopular and wrong-headed views.

The Second Amendment is no different.

Like the First, it is the very product of an interest-balancing
by the people—which JUSTICE BREYER would now conduct for them anew.
And whatever else it leaves to future evaluation, it surely
elevates above all other interests the right of law-abiding,
responsible citizens to use arms in defense of hearth and
home.

* * *

In sum, we hold that the District’s ban on handgun
possession in the home violates the Second Amendment,
as does its prohibition against rendering any lawful firearm
in the home operable for the purpose of immediate
self-defense. Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the District
must permit him to register his handgun and must
issue him a license to carry it in the home.

* * *

We are aware of the problem of handgun violence in this
country, and we take seriously the concerns raised by the
many amici who believe that prohibition of handgun
ownership is a solution.

The Constitution leaves the District of Columbia a variety
of tools for combating that problem, including some measures
regulating handguns,see supra, at 54–55, and n. 26.
But the enshrinement of constitutional rights necessarily
takes certain policy choices off the table.
These include the absolute prohibition of handguns held
and used for self-defense in the home.

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. 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.

We affirm the judgment of the Court of Appeals.

–It is so ordered.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Presidential Candidates Respond to D.C. vs. Heller Ruling

Given that the D.C. vs. Heller ruling is a historically important ruling for the Second Amendment and given that the next president could appoint between two and three Justices to the Supreme Court over the next four years, I think the responses from Bob Barr, John McCain, and Barack Obama might give us some insight into what kind of judges each would appoint and how each views the Second Amendment. Below are the complete official press releases from each candidate’s web site.

Bob Barr

June 26, 2008 10:16 am EST

Washington, DC – Today the U.S. Supreme Court upheld the individual right of Americans to own guns in District of Columbia v. Heller. The ruling “will go down as one of the Supreme Court’s most important rulings on behalf of liberty,” says Libertarian Party presidential candidate Bob Barr.

Until today, the Court had never held that the Second Amendment directly applied to individuals. “Today’s decision marks a new era for gun rights in America,” explains Barr, who is a member of the Board of Directors of the National Rifle Association. Barr also drafted the Libertarian Party’s amicus curiae brief in Heller. “By protecting an individual’s right to keep and bear arms, the Second Amendment ensures that all Americans are able to participate in sporting activities, hunt, and protect themselves and their families,” he explains.

The right to self-defense is particularly important for women and minorities in a city like Washington, D.C. “Where crime rates are high, a gun may be the only means for law-abiding citizens to safeguard themselves and their families,” Barr notes. “Lawful gun ownership deters an untold number of crimes every year.”

But the Court’s ruling, though welcome, is not enough. “It is important to have a president who also supports the right of Americans to own firearms,” says Barr. “Sen. Barack Obama says that he believes in such a constitutional right, but he supports the District of Columbia’s ban, which gives criminals an advantage over law-abiding citizens,” notes Barr.

Sen. McCain has not advocated an absolute prohibition, “but he cosponsored legislation which could require registration of attendees at gun shows and even ban such shows,” Barr warns. And Sen. McCain’s campaign legislation “curtailed the First Amendment right of gun owners to protect their rights by participating in election campaigns.”

As part of the Bill of Rights, the Second Amendment undergirds American liberty. “The individual’s right to keep and bear arms helps ensure all of our freedoms,” says Barr. “The Supreme Court’s recognition of the constitutional right to gun ownership is a recognition of the right to life, liberty, and property for all Americans.”

Barr represented the 7th District of Georgia in the U. S. House of Representatives from 1995 to 2003, where he served as a senior member of the Judiciary Committee, as Vice-Chairman of the Government Reform Committee, and as a member of the Committee on Financial Services. Prior to his congressional career, Barr was appointed by President Reagan to serve as the United States Attorney for the Northern District of Georgia, and also served as an official with the CIA.

Since leaving Congress, Barr has been practicing law and has teamed up with groups ranging from the American Civil Liberties Union to the American Conservative Union to actively advocate every American citizens’ right to privacy and other civil liberties guaranteed in the Bill of Rights. Along with this, Bob is committed to helping elect leaders who will strive for smaller government, lower taxes and abundant individual freedom.

John McCain

For Immediate Release
June 26, 2008
Contact: Press Office
703-650-5550

Statement by John McCain on Today’s Supreme Court Ruling on Second Amendment Rights

ARLINGTON, VA– U.S. Senator John McCain today issued the following statement regarding today’s United States Supreme Court ruling on District of Columbia v. Heller:

Today’s decision is a landmark victory for Second Amendment freedom in the United States. For this first time in the history of our Republic, the U.S. Supreme Court affirmed that the Second Amendment right to keep and bear arms was and is an individual right as intended by our Founding Fathers. I applaud this decision as well as the overturning of the District of Columbia’s ban on handguns and limitations on the ability to use firearms for self-defense.

Unlike Senator Obama, who refused to join me in signing a bipartisan amicus brief, I was pleased to express my support and call for the ruling issued today. Today’s ruling in District of Columbia v. Heller makes clear that other municipalities like Chicago that have banned handguns have infringed on the constitutional rights of Americans. Unlike the elitist view that believes Americans cling to guns out of bitterness, today’s ruling recognizes that gun ownership is a fundamental right- sacred, just as the right to free speech and assembly.

This ruling does not mark the end of our struggle against those who seek to limit the rights of law-abiding citizens. We must always remain vigilant in defense of our freedoms. But today, the Supreme Court ended forever the specious argument that the Second Amendment did not confer an individual right to keep and bear arms.

Barack Obama

I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures. The Supreme Court has now endorsed that view, and while it ruled that the D.C. gun ban went too far, Justice Scalia himself acknowledged that this right is not absolute and subject to reasonable regulations enacted by local communities to keep their streets safe. Today’s ruling, the first clear statement on this issue in 127 years, will provide much-needed guidance to local jurisdictions across the country.

As President, I will uphold the constitutional rights of law-abiding gun-owners, hunters, and sportsmen. I know that what works in Chicago may not work in Cheyenne. We can work together to enact common-sense laws, like closing the gun show loophole and improving our background check system, so that guns do not fall into the hands of terrorists or criminals. Today’s decision reinforces that if we act responsibly, we can both protect the constitutional right to bear arms and keep our communities and our children safe.

Supreme Court Upholds Individual Right To Keep And Bear Arms

After nearly two centuries of silence, the Supreme Court today struck down a District of Columbia gun ban and affirmed that the Second Amendment protects an individual right to keep and bear arms:

WASHINGTON — The Supreme Court ruled Thursday that Americans have a right to own guns for self-defense and hunting, the justices’ first major pronouncement on gun rights in U.S. history.

The court’s 5-4 ruling struck down the District of Columbia’s 32-year-old ban on handguns as incompatible with gun rights under the Second Amendment. The decision went further than even the Bush administration wanted, but probably leaves most firearms laws intact.

The court had not conclusively interpreted the Second Amendment since its ratification in 1791. The amendment reads: “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 basic issue for the justices was whether the amendment protects an individual’s right to own guns no matter what, or whether that right is somehow tied to service in a state militia.

Justice Antonin Scalia, writing for four colleagues, said the Constitution does not permit “the absolute prohibition of handguns held and used for self-defense in the home.”

In dissent, Justice John Paul Stevens wrote that the majority “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.”

Yes, that’s right Justice Stevens, they did. It’s called the Second Amendment.

While the devil is, as always, in the details and, as I noted in March, this is far from the end of the Constitutional debate about gun control, this is, all in all, a great day for individual liberty.

The Death Penalty, Child Rape, And The Supreme Court

Today, the Supreme Court ruled in a 5-4 decision that a Louisiana law allowing the death penalty for rape of a child even when it doesn’t result in death is unconstitutional:

A divided Supreme Court ruled today that it is unconstitutional to execute someone who rapes a child but does not kill the victim.

In a 5 to 4 decision, the court struck down a Louisiana law that had authorized the death penalty for anyone who rapes a child under the age of 12. Of 3,300 inmates on death row across the country, only two face capital punishment for a crime other than murder. Both were convicted under Louisiana’s law, the broadest in the land. There has not been an execution for rape in the United States since 1964.

Justice Anthony M. Kennedy joined the court’s more liberal members in continuing the court’s trend of narrowing the number of criminals eligible for death. He wrote that the harm caused a child who is raped is “grave,” but “cannot be quantified in the same way as death of the victim.”

Says who ? Well, apparently, 5 of the 9 unelected men and women in black robes say so.

And that, I think, is what’s really wrong with this decision.

Make no mistakes, the doubts that I harbor about capital punishment to begin with would probably cause me to vote against any effort to expand the death penalty to crimes beyond first degree murder, but that’s a question for a legislator, not a judge. Unfortunately, the legislator-as-judge is something that is far too common and it’s something we see on both sides of the political spectrum notwithstanding the right’s continual repetition of the phrase “judicial restraint.

As Orin Kerr points out, Justice Alito does a fairly good job of pointing out the real problem with today’s decision in his dissent:

A major theme of the Court’s opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty. Ante, at 32. The Court also argues that “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim,” ante, at 35, and may discourage the reporting of child rape, ante, at 34–35.
These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is “cruel and unusual” punishment. The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society. The Court’s policy arguments concern matters that legislators should—and presumably do—take into account in deciding whether to enact a capital child-rape statute, but these arguments are irrelevant to the question that is before us in this case. Our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ to cut off the normal democratic processes,” Atkins v. Virginia, 536 U. S. 304, 323 (2002) (Rehnquist, C. J., dissenting), in turn quoting Gregg v. Georgia, 428 U. S. 153, 176 (1976), (joint opinion of Stewart, Powell, and STEVENS, JJ.), but the Court forgets that warning here.

Alito, I think, get’s it 100% right. It isn’t the Supreme Court’s job to second guess a particular state’s determination that raping an 8 year old girl, in this case your 8 year old stepdaughter, is not a sufficiently heinous crime to justify the death penalty. That decision belongs to the people, acting through their legislators.

Far more clearly than most may realize, this decision lays bare what has gone so terribly wrong with Constitutional jurisprudence in this country over the past 50 years or so.

Originally posted at Below The Beltway

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