Good stuff in the Heller decision

Aside from throwing out the D.C. ban there is other good stuff for future victories in the decision:

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 constitute bearable arms, even those that were not in existence at the time of the founding.

Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”

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. From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia.

[I]t 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), “[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 . . . .

I’m only about 1/5 of the way through and I have to save the rest for later. I have a dentist appointment and work to do.

3 thoughts on “Good stuff in the Heller decision

  1. Joe,
    I don’t know if you’re on our e-mail alerts list, but I wanted to be sure to share my first impressions of the Heller decision. Here is the alert I sent out shortly after the announcement — Jeff

    We won! Mostly.

    The Supreme Court concluded today that the Second Amendment does indeed protect an individual right to arms and that the DC handgun ban and requirement that all guns be rendered inoperable within the home, were violations of that protection and must be changed. Specifically, the Court ordered that the District of Columbia must allow Richard Heller to register a handgun and be issued a permit to carry it about within the confines of his home in a functional condition for purposes of self-defense.

    The Court did not delve deeply into what restrictions would or would not be acceptable under the Second Amendment though their order that Heller be allowed to register a handgun and be issued a permit clearly suggest that they consider such registration and permitting acceptable limitations.

    In his majority opinion, Justice Scalia also stated that prohibiting felons and mental incompetents from firearms was clearly constitutional and repeated the thoroughly specious argument that he expressed during aural arguments to the effect that weapons which are not, “in common use,” are not included within the Second Amendment’s guarantees. He specifically gave the example of M-16 rifles being common to military use, but uncommon to civilian possession – completely ignoring the fact that the only reason M-16’s are not commonly possessed is that their sale to private citizens was extremely complicated and cost prohibitive for the first twenty years of that arm’s existence and has been completely banned for the past twenty two years.

    No doubt Scalia and his co-signers included this information – which has absolutely no bearing on the case at hand – to assuage the fears of the Solicitor General and others who have suggested that an “individual right” decision would open a floodgate of assaults on existing federal laws restricting machineguns and “destructive devices.” Regardless of the motive for the position, it is as totally nonsensical as the ridiculous suggestions put forward in the two minority opinions.

    The length to which the dissenting Justices are willing to twist history and contort language in attempts to justify their outrageous positions is nothing less than staggering. The intellectual gymnastics engaged in by the Justices in their efforts to support their idiotic, fore drawn conclusions should seriously shake the faith of the most trusting citizen. It is simply outrageous that men and women of intellect and learning would take up a position and then selectively sort through history for tiny threads of support for that position while completely ignoring the full, rich tapestry which displays a clear picture of an absolutely opposite position.

    The intellectual dishonesty displayed by the dissenting Justices – and to a much lesser degree by the majority – should be deeply disturbing to every thinking American. These are not trivial matters that are being dealt with by the Court. These are issues that reach down to the basic founding principles of our republic. How can we entrust matters of such great import to people who demonstrate a willingness to contort history to their own personal beliefs and philosophies rather than examining evidence and drawing rational conclusions based on that evidence.

    Today’s decision by the Supreme Court makes two things abundantly clear:

    * Defenders of liberty and our Constitutional Republic face a long and tedious battle to secure and defend our rights.

    * It is absolutely critical that the next President, and every President thereafter, is committed to appointing judges and justices who will interpret law and the Constitution based on history and facts, not their own agendas.

    The courts have the potential to undermine and ultimately destroy our nation and our way of life. It is incumbent upon all of us to diligently work against the erosion that is eating away at the very foundations of our society.

  2. Right on, Jeff!

    The battle never ends. Liberty is under permanent assault, both from without and, as you described, from within.

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