Over at SCOTUS Blog, we learn that Heller will be the last decision announced this morning. I suppose that means that Scalia or Kennedy wrote the majority opinion. I can't imagine that it could be Stevens.
Update: It's Scalia suggesting a broad ruling.
Update: And it is. I am skimming through it but am immediately struck be a few things. As has been reported elsewhere, the Court held that the operative clause of the Second Amendment ("the right of the people to keep and bear Arms, shall not be infringed") creates an individual right to bear arms that is not limited by the preceding prefatory clause ("A well regulated Militia, being necessary to the security of a free State ..."). This has too implications. First, the right exists unconnected to service in the militia. The right exists to keep firearms for traditional use, such as self defense in the home.
This also means, Scalia appears to say, that the right is not limited to those firearms that would be useful to service in a militia, i.e., the right applies to handguns. This is so, the majority seems to say, because, although the prefatory clause does not limit the operative clause, it informs its interpretation and "[t]he traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense."
But its not an unlimited right. Indeed, interpretation of the amendment to firearms in common use would justify prohibition of those that are not (the Court mentions short barreled shotguns. Thus, in a latter passage, the Court makes clear that the amendment does not bar the prohibition of "dangerous and unusual weapons.
Other limitations may be permitted as well. Here's a passage that will be seized upon by gun control advocates:
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. See, e.g., Sheldon, in 5 Blume
346; Rawle 123; Pomeroy 152–153; Abbott 333. For example,
the majority of the 19th-century courts to consider the
question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or
state analogues. See, e.g., State v. Chandler, 5 La. Ann.,
at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2
Kent *340, n. 2; The American Students’ Blackstone 84, n.
11 (G. Chase ed. 1884). 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 of
My initial reaction is that the opinion may not restrict most regulation that is politically possible in most places. There will be no handgun bans. There may be gun regulation.
But this is really preliminary. More later.
Update: David Schenck writing at SCOTUSblog, notes that more Second Amendment litigation is likely. Is the Second incorporated against the states? What standard governs firearm regulations and what regulations are permissible. Strictly speaking, Heller only establishes that a federal ban of the possession of a handgun in the home is unconstitutional. As he points out, four justices would not have even found that. Whether Heller has legs, i.e., whether it establishes a robust right to bear arms, will turn on the future composition of the Court. While Obama says that he agrees with the Court's decision, it seems unlikely that he would appoint Justices who would decide it the same way.
While Obama says that he agrees with the Court's decision, it seems unlikely that he would appoint Justices who would decide it the same way.
What makes you believe that?
I agree that the court got this one right. The second amendment phrase "well regulated" clearly allows for and requires reasonable regulation. An outright ban seems to go beyond the threshold of reasonable. The concerted push from the main-stream right to push that definition of "reasonable" further to the right seems more dangerous for our society and the constitution than anything I see from the main-stream left.
Wisconsin has its own constitutional bear-arms provision Art. I, § 25 , but it has been more or less limited, for practical purposes, to one's home and privately owned business, State v. Fisher, 2006 WI 44, ¶27. You can also make the case that the court essentially eviscerated the right, in State v. Hamdan, 2003 WI 113, ¶¶86-88 (a highly technical argument to be sure but roughly: the court assigned too much authority to trial judges to remove the jury's authority to determine whether any given defendant is entitled to exercise the right).
Point is, you can make a plausible case that our (Wisconsin) judiciary is relatively hostile to the right to bear arms, and will be very willing to regulate it closely. I don't sense any split between the so-called conservative and "New Federalist" camps in this respect, either. Maybe I'm wrong, but I don't think 3rd Way need fear an expansive view of the right from the judicial side any time soon.
I don't think 3rd Way need fear an expansive view of the right from the judicial side any time soon
It is equally silly for 3rd Way to assume that sensible Wisconsin residents take SCOWI rulings seriously.
3Way: when you read Scalia's decision, you will find that the term "well-regulated" has NOTHING to do with "reasonable regulation" in the sense you use it.
As to Obama's predilection on Justices: read my blog. He lies.
From Scalia's decision: “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.”
Your assertion Daddio that when you read Scalia's decision, you will find that the term "well-regulated" has NOTHING to do with "reasonable regulation" does nothing but prove my point that when it comes to judicial activism and gun control there is more to fear from the right than there is from the left.
3rd Way touches on an interesting and important point: the right to bear arms can be, has been, and will be subject to regulation. I might disagree with him about the origin of this power: I'm not as sure as he is that it derives from the text of the 2nd A; rather, regulation is simply within the state's "police power" authority to impose a reasonable regulation on the exercise of a right. Just to give some quick examples in the 1st A context: libel, slander, child pornography -- none of those, or other, limits on expression are based on the plain text of the amendment.
Here's a downloadable, up-to-the-minute -- Abstract:
The Supreme Court has recently held in District of Columbia v. Heller that the Second Amendment protects an individual right to keep and bear arms. That decision, however, is only the beginning of the inquiry. Individual rights, via the police power, are subject to reasonable regulation. The difficult question remaining is whether a particular regulation is unreasonable, unduly infringing on an individual's right to keep and bear arms, and is therefore unconstitutional. This note proposes a workable analytic approach to addressing this question. Guided by the Common Law Constructive Method, this note takes First Amendment time, place, and manner doctrine and transposes it onto the Second Amendment.
No, 3way, that's not quite it.
Scalia finds that the RKBA is not "granted" by the 2A--that it exists a priori, instead.
The anti-Federalists wanted it "up front," so the preliminary language was convenient (and true.)
But the RKBA is not reversible by SCOTUS or anyone else.
So the question is: "Is prohibition of concealed carry un-Constitutional as an unreasonable restraint on self-defense?"
Note also, 3way, that Scalia specifically referenced self-defense in his discussion of the word "Bear."
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