Thursday, June 26, 2008

After reading DC v Heller

I wish I could find the text that I can cut and paste, but I can't. I'll refer to pages as we go here. Before I go on, I have to say that any decision with the word "hooligan" in it isn't all bad....

I'm not celebrating this decision. I am flatly amazed that four justices on this court did not respect the constitution. I shouldn't be, but how can those four who claim that abortion is a "fundamental right"(not in the constitution, but a major expansion of substansive due process born from the infamous Lochner case in the early 1900's) and turn around and say that the DC ban on functional firearms in the home is constitutional. We are one justice away from losing the 2nd Amendment. I hope every single gun owner realizes that, looks at which justices went our way and also look at the justices that went against us, and look at the appointers of them, and the votes for and against them. We are still playing defense. This was an aggressive defense here, but it was still defense.

Now as for this case, Scalia hit a home run. He first mentioned that the Constitution was intended to be understood by ordinary Americans, much as the Federalist Papers were back around 1787. This excludeds the technicalities as meanings that us present and future lawyers love to use so much in our arguments.

One of the most important things mentioned (page 3) was that the militia was the purpose - not the limiting clause. The operating clause is the "Right of the people" to keep and bear arms shall not be infringed. What is central to Heller's argument is that the Right of the People have the same meaning in the 2nd Amendment as it does in the rest of our constitutional rights. They are not individual rights in one spot and so called "collective rights" here.


The second part is a discussion about the meaning of the terms keep arms and bear arms with Justice Stevens, the main dissenter.

The third part is the operative clause. Page 19. It started with mentioning the English Common Law origin of the right, similar (but using different sources) so what I did in my five part preview of this case. He used the Stuart Kings in Britain as an example, and later mentioned the obvious - what King George III tried to do to the Colonists.

He then on page 25 goes to the "Well regulated militia". and "security of a free state." The militia is us, as the law plainly shows. I'm not referring to "Michigan Militia" either, but the constitutional militia. He goes on and mentions more of the history behind the amendment and its application. One of the more interesting references is "Bleeding Kansas." Bleeding Kansas was the "Civil War" before the Civil War. One compromise gone bad was the admission of Kansas into the union. There was a precarious balance between slave states and free states. The 36'30 latitute was the line between slave states and free states in the Louisiana purchase with the exception of Missouri. The Kansas-Nebraska Act, signed by Franklin Pierce who is usually considered the worst president in history, let the people themselves decide if they wanted a free or slave state. It sounded great on paper, but it became a partisan war between the two camps. Anti-slavery Jayhawks (where the name Kansas Jayhawks comes from) fought the pro-slavery forces mostly from Missouri. It was the Civil War before the Civil War. Massachusetts abolitionist and senator Charles Sumner mentioned the right to keep and bear arms in his speech and ripped South Carolina representatives for trying to disarm the abolitionists in Kansas. Two days later he was infamously whacked over the head with a cane and injured severely.

Scalia later (page 40) cites case law before and after the Civil War, and mentioned constitutional scholars such as Thomas Cooley and others. It then addresses the Miller case and Stevens "interpretation" of the Miller case. Page 49. Keep in mind that Miller was not overturned today. Scalia correctly mentions that in the Miller case, the problem is that the Jack Miller (who did not show up to court) did not convince the court that a sawed off shotgun was a MILITIA related weapon. It was the weapon that was important.

Scalia briefly mentions the weapons themselves, only to say that the weapons protected are ordinary equipment militia members would keep in common use and mentions about the 1933 Class III law. I'm not sure about that part however. I think Scalia here is trying to avoid getting the 1986 ban on new machine guns tossed out on this precident. Page 52-55. I wonder if that was left in there to keep Kennedy as part of the five, but that's speculation.

On page 56, he mentions the case itself with Heller. It mentions that total handgun bans are wrong and violate the right to self-defense. Licensing (to own and carry in the home) was allowed as constitutional (I may not like it on a personal level, but the precident for licensing and registration as unconstitutional is a very tough sell as a LEGAL issue since opposition is based on speculation of government nefariousness or costs through fees).

The most important part of the decision outside of the ruling itself is on page 63. I was looking mostly for the standard of review. In the simplist terms without studying my old con law notes - Strict Scrutiny is for "fundamental rights" (burden on government), then there is the rare intermediate (balancing mostly), and the common rational basis review (burden on petitioner). Scalia equated it to the censorship of unpopular speech. It's wrong. Period. No balancing test needed.

Lastly Scalia mentions the concerns about violence and says that many measures are constitutional, but blanket bans are not - and it is not the role of the judiciary to declare the 2nd Amendment extinct.

Overall, I think it was a great opinion. I would have gone with the strict scrutiny standard on its review, but that's probably my only difference. I encourage everyone to read the opinion itself, and also read the dissents by Stevens and Breyer. I do not agree with them at all, especially Breyer's living constitution claim, it is still something we all should read.

One last thing.

This does not address any other federal or state gun laws. The Chicago and New York gun bans are not thrown out. They are state laws and non-federal local ordinances which have their own systems. DC was a federal law. In order for the 2nd Amendment to be applied to the states, it has to be "incorporated" under the 14th Amendment. That is a separate matter, so be extremely careful if you think you can carry there. Don't be a test case and get yourself arrested.

On that note for the non-lawyers - don't get angry with Scalia and the Court for not addressing those other laws. They could not rule on them because those laws were not challenged. Only the DC federal law was challenged and ruled on appeals. Licensing was not challenged either. Courts do not rule on what is not challenged. Keep in mind than Alan Gura's client was not us - we the peope - it was Dick Heller, and his fidiciary duty was to restore Heller's rights - which he did.

Overall this was a good decision and the best we could have gotten. I can't complain outside of four justices who turned their back on the constitution and freedom.

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