Heller v DC decision due this week

[Kade]

Looks like Scotusblog has been Slashdotted all to hell.

Assguardshrill.

 

[asgardshill]

Answering a 127-year old constitutional question, the Supreme Court ruled on Thursday that the Second Amendment protects an individual right to have a gun, at least in one’s home. The Court, splitting 5-4, struck down a District of Columbia ban on handgun possession.

Justice Antonin Scalia’s opinion for the majority stressed that the Court was not casting doubt on long-standing bans on gun possession by felons or the mentally retarded, or laws barring guns from schools or government buildings, or laws putting conditions on gun sales.

In District of Columbia v. Heller (07-290), the Court nullified two provisions of the city of Washington’s strict 1976 gun control law: a flat ban on possessing a gun in one’s home, and a requirement that any gun — except one kept at a business — must be unloaded and disassembled or have a trigger lock in place. The Court said it was not passing on a part of the law requiring that guns be licensed.

Some troubling wherefores and whozits in this analysis, if true.

 

[asgardshill]

There are a few better live-bloggers, (mostly Court interns and law students) if you know where to look.

I'm getting my information from one of them...

Good for you.

 

[Kade]

Some troubling wherefores and whozits in this analysis, if true.

5-4 is not enough to end the debate, and the fact that they specified the home is clever, and will only make things a bit more difficult.

 

[Kade]

Good for you.

....

 

[Cowlesy]

The Antifederalists feared the Federal Government would disarm the people in order to disable this 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.

Quoted from the syllabus.

 

[asgardshill]

....

See? You can make good decisions.

 

[Kade]

See? You can make good decisions.

I was being civil. You're an -----. Don't bother asking me later to do it again.

 

[asgardshill]

I was being civil.

Want a cookie?

You're an ---. Don't bother asking me later to do it again.

You won't be the one I'll ask.

 

[Kade]

You won't be the one I'll ask.

I imagine not you -----

 

[ThePieSwindler]

Im with Kade on this one .... color me unimpressed. Sure they upheld it, but whats REALLY going to change? They ladened the decision with plenty of phrasing that could be "stretched" in its meaning. And the slim margin is going to keep the debate alive and kicken'. This is a slight positive, but only slight.

 

[ARealConservative]

Im with Kade on this one .... color me unimpressed. Sure they upheld it, but whats REALLY going to change? They ladened the decision with plenty of phrasing that could be "stretched" in its meaning. And the slim margin is going to keep the debate alive and kicken'. This is a slight positive, but only slight.

that's the nature of the one party system we live under.

We could easily come to a compromise on issues like abortion and gun control, but then what wedge issues would they have to divide us?

 

[Flash The Cash]

Justice Scalia’s Methodology Of Constitutional Interpretation Is Just An Excuse......

Justice Scalia’s Methodology Of Constitutional Interpretation Is Just An Excuse For His Judicial Activism


In the excerpt below, from the U. S. Supreme Court's opinion in the case of Heller v. D. C, authored by Justice Scalia, the notorious right wing activist announces his intention to follow a rule of constitutional construction which dictates that the words of the Constitution should be understood in the sense they were normally and ordinarily used. However, the first source he consults is an obscure treatise, written seventy five years after the Second Amendment was ratified, which he apparently believes allows him to "rephrase" 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 “[t]he 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.” United States v. Sprague, 282 U. S. 716, 731
(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).
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.
The two sides in this case have set out very different
interpretations of the Amendment. Petitioners and today’s
dissenting Justices believe that it protects only the
right to possess and carry a firearm in connection with
militia service. See Brief for Petitioners 11–12; post, at 1
(STEVENS, J., dissenting). Respondent argues that it
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. See Brief for Respondent 2–4.
The Second Amendment is naturally divided into two
parts: its prefatory clause and its operative clause. The
former does not limit the latter grammatically, but rather
announces a purpose. The Amendment could be rephrased,
“Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep
and bear Arms shall not be infringed.” See J. Tiffany, A
Treatise on Government and Constitutional Law §585,
p. 394 (1867);​

It appears that Scalia's Second Rule of Constitutional Construction is as follows:

Scalia's Second Rule of Constitutional Interpretation: If the lawmakers words met with disapproval, the section of the Constitution being interpreted may be rephrased upon the slightest pretext.
​

 

[New York For Paul]

The supremes exist to interpret the constitution as the founders meant it, and to validate all laws passed by the congress to ensure they are within the limits and constraints of the constitution. Any member of the supreme court who cannot remember that the founding principle of our nation is that people have inalienable rights needs to be hauled out onto the mall, and strung by his genitals to the top of the Jefferson Rotunda until he be dead, dead, dead.

http://tcoverride.blogspot.com/2008_06_01_archive.html

 

[sidster]

Found this related link: Justice Antonin Scalia On Second Amendment

“Nowhere else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an
unspecified subset … The Second Amendment extends, prima facie, to all instruments that constitute bearable arms … The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’ “
– Justice Antonin Scalia​

“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 … Undoubtedly some think that the Second Amendment is outmoded. 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.”
– Justice Antonin Scalia​

 

[Flash The Cash]

Is "a well regulated militia" still necessary, in 2008, for the security of the free state?

The fact that we don't have a militia anymore is all the proof one needs that a militia isn't necessary.

 

[madengr]

The 2A was a compromise that allowed the federal government to have a standing army. So if it goes so must the Army and Navy.

 

[Flash The Cash]

...the proem in the Second Amendment...was fully explained by the SCOTUS

We don't need the Constitution explained, dude. We need it honestly interpreted by applying the well established common law rules of construction the lawmakers, according to the historical evidence, most probably wanted applied to the Constitution.

Two of those well established common law rules of construction were invoked, by the great James Madison in Federalist No. 40 to, interpret "the act from Annapolis" and "that from Congress, in February, 1787" recommending what became the historic general convention that framed the U. S. Constitution.

The two rules of construction invoked by Madison date back to the time of Sir Edward Coke (1 February 1552 – 3 September 1634) and held that,

The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.
​

When interpreting the Second Amendment, every word it contains ought to be allowed some meaning and made to conspire with the goal of a free state. What meaning should be given to the words in the first clause of the Amendment in order that they act together with the words of the second clause to achieve the goal of a free state?

 

[Dequeant]

The fact that we don't have a militia anymore is all the proof one needs that a militia isn't necessary.

That may be how you look at it. The way i look at it is that the complete absence of a militia has only emboldened our corrupt politicians to continuously seek greater power for the federal government to the detriment of states and individual rights.

Were we to have a strong militia, bearing the same arms our active military bears, those corrupt politicians would not be so bold.

This is how the founders intended it to be.......and made it so, we just fucked it up.

 

[Flash The Cash]

Every word in a law must be given an effect. The first clause of the Second Amendment must have an effect on "the right of the people to keep and bear arms." The most natural effect might be to construe the word "people" to mean the people in a well regulated militia or perhaps to interpret the word "arms" to mean the type of weapons employed by the well regulated militia or maybe both.

That doesn't square with my personal views on the subject of people having weapons, but one doesn't interpret laws according to one's personal views. That's what judicial activists like Scalia do.