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BREAKING: Supreme Court Holds D.C. Gun Ban Unconstitutional

The justices split 5-4 on ideological lines (with Kennedy joining the conservative justices). Justice Scalia wrote the majority opinion, as predicted. I'm surprised that Scalia managed to convince enough of his fellows to have a majority opinion, rather than dueling pluralities.

The ruling: the Second Amendment protects an individual right to have firearms. The prefatory clause, "A well regulated Militia, being necessary to the security of a free State,"merely announces the amendment's purpose, but does not affect the operative clause, "the right of the people to keep and bear Arms, shall not be infringed."

On my first skim of the lengthy opinions, it seems that the holding is limited to the federal government, for now. We'll have to wait for a later case to incorporate the holding through the Fourteenth Amendment to the states.

Justices Stevens and Breyer wrote dissenting opinions.

I will update with some key quotes in a minute. The opinion can be found here (PDF). Also, be sure to see Jack M.'s comments below.

First Update: While Justice Scalia seems poised throughout his discussion of the historical background of the Second Amendment to declare that it applies to the States as well as the federal government, he draws back from that conclusion in a footnote on page 48 of his opinion:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, and Miller v. Texas, reaffirmed that the Second Amendment applies only to the Federal Government.

The question not being presented, Scalia manfully restrained himself in a way that Kennedy could not in Boumediene. (Kennedy declared that Boumediene was a "special case" and went on to address issues not decided by the lower courts.) But it seems to me his note is giving states fair warning: the early understanding that the First Amendment did not apply against the states was overruled; the same is possible with the Second Amendment. And, as I said, his discussion of the Second Amendment's history leans strongly in favor of a like finding.

Second Update, More Legalish: The Court follows several recent cases in failing to make clear just what standard is being applied to invalidate the law. According to the dissenters, it's something greater than rational basis review and Scalia writes that the D.C. gun laws would "fail constitutional muster" under any of the standards of scrutiny. Does that mean that gun bans will be evaluated according to the almost always fatal strict scrutiny standard, or a more relaxed "intermediate" standard? It depends on who you ask.

Scalia seems to be leaving the question open (no doubt because the courts are about to enjoy a barrage of litigation over state and municipal gun restrictions. But Breyer, very clearly, is attempting to convince people that something less than strict scrutiny applies:

Respondent proposes that the Court adopt a “strict scrutiny” test, which would require reviewing with care each gun law to determine whether it is “narrowly tailored to achieve a compelling governmental interest.” Abrams v. Johnson, 521 U. S. 74, 82 (1997); see Brief for Respondent 54–62. But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws—prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales—whose constitutionality under a strict scrutiny standard would be far from clear.

I think Breyer is a little quick to suggest that each of those restrictions would not pass strict scrutiny. Breyer himself once joined an opinion by Justice O'Connor which derided the phrase "strict in form, fatal in fact" as an exaggeration of strict scrutiny's true effect.

Third Update, My Final For The Day: Justice Stevens' dissent is interesting in that it acknowledges an individual right to firearms, but holds that the government can restrict that right based on the prefatory clause. He emphasizes that stare decisis requires that conclusion.

While stare decisis is not an inexorable command, the careful observer will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged ‘to bring its opinions into agreement with experience and with facts newly ascertained.’

Most appeals to hold to precedent are opportunistic. The interesting thing here is that Scalia has not explicitly overruled any prior cases.

That will be my last update of the day. I see that there are several noteworthy observations in the comments, both to this post and to the others about Heller, so poke around, folks, for the stuff I missed. I'll be back this evening, probably with more on this case and also on the campaign finance reform case that also came down today.

Posted by: Gabriel Malor at 10:20 AM



Comments

1 Kick ass!

Posted by: DC Gun Dealer at June 26, 2008 10:24 AM (vjl9g)

2

Wow, the 3rd post on this in 5 minutes, the HMIC (Head Morons In Charge) must've snapped out of their hangovers quickly to post this since it's finally good news from the SCOTUS.

On the plus side, this step will seriously help make DC a slightly more bearable, somewhat less violent place (yes trolls, letting the good guys have guns for protection reduces violence, look up the statistics).

Posted by: TJ at June 26, 2008 10:24 AM (zwLIa)

3 Forget the flaming skull. This deserves Jennifer Connelly riding the horse.

Posted by: Ghost of Lee Atwater at June 26, 2008 10:24 AM (JxMoP)

4 You can almost hear the wailing, howling in disbelief (suspension ?) and the wringing of hands by the grabbers and their sycophants...

there will be revolution in the street...

Add that, with the ouster of the Utah Open Borders RINO, there still is (real) Hope!

Posted by: Fred Zeppelin at June 26, 2008 10:26 AM (WQ/EZ)

5

http://www.youtube.com/watch?v=8x_NADO4tXQ

Apple Pie, Baseball, and Chicks with guns.

These rights shall not be infringed.

Posted by: Entropy at June 26, 2008 10:28 AM (m6c4H)

6 How will the Baracko Obama react?  I will reserve my reaction, until Michele and the kids have a chance to react.  :-)

Posted by: sergei at June 26, 2008 10:28 AM (AGMH1)

7 What were those other four assholes thinking??

Posted by: shank at June 26, 2008 10:28 AM (+H1yK)

Posted by: This one's for the ladies at June 26, 2008 10:31 AM (m6c4H)

9

What were those other four assholes thinking??

They were thinking about a "living breathing constitution" which has changed to mean something other than what it says. The other five are just too dumb to understand that.

Posted by: captkidney at June 26, 2008 10:32 AM (Bq8Sp)

10 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.

Does this mean they can  ban concealed carry?

Posted by: Rocks at June 26, 2008 10:35 AM (Q1lie)

11

"Does this mean they can  ban concealed carry?"

I think here they might be referring to weapons bans (for visitors and non-police types) in places like hospitals, schools, etc.

Posted by: shank at June 26, 2008 10:40 AM (+H1yK)

12 Rocks, that's a state issue. 

Posted by: Techie at June 26, 2008 10:41 AM (x1hhx)

13 "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."

A most felicitous passage!

Posted by: The Chap in the Deerstalker Cap at June 26, 2008 10:41 AM (j02xJ)

14

To hear DC Attorney General Nickles tell it, the whys and wherefores that remain to be worked out are going to seriously constrain ownership/carry. Some proposals are one handgun per individual, fingerprinting, registration, Fenty's proposal that handguns in the home remain unloaded except in self-defense(!), no carry laws, trigger locks, etc.

http://blog.washingtonpost.com/dc/2008/06/dc_attorney_general_all_guns_m.html?hpid=topnews

DC is going to make ownership a pain, but it's a win nonetheless.

Posted by: railwriter at June 26, 2008 10:42 AM (nwEiU)

15 Again, big fucking deal. The decision was 5 to 4. How close did they come to screwing us? That close! Let's face it: If they passed a restrictive gun law, there would be chaos in this country. Could you see having to live like they do in DC and Chicago?

Posted by: GRC at June 26, 2008 10:43 AM (keQTO)

16 Shank, if that's true then why use the word "prohibition" instead of "restriction"?

I hope you are right but it's a bad choice of words if true.

Posted by: Rocks at June 26, 2008 10:44 AM (Q1lie)

17 The Incorporation case law is pure dog shit.  The Court uses the 14th Amendment to control the States whenever and however they choose.  There is no principle whatsoever at work.  It is pure, unadulterated power-mongering. 

They "incorporated" the First Amendment, for example, to give federal control over a huge range of issues, despite the fact that by its very terms, the First Amendment (unlike all the others) explicitly states that "Congress shall make no law ..." 

You can apply that phrase to the States all day long -- you still end up with the rather incontrovertible fact that there is only one Congress, and it is in Washington, D.C.

Posted by: Phinn at June 26, 2008 10:48 AM (NLtoU)

18 Techie, I know it is. What I am asking is does that line mean states have the right to ban concealed carry if they wish? That's takes a big bite out of the right to self defense. You can only defend your "self" in the home? My "self" isn't always at home.

Posted by: Rocks at June 26, 2008 10:48 AM (Q1lie)

19 As a D.C. resident, all I can say is hallelujah! I'm stepping out to a bar at lunch for a toast with a buddy. I can now do what gang-banging thugs around the city have done for decades, i.e., ignore the gun ban.

Posted by: d_man at June 26, 2008 10:51 AM (HMqne)

20

Still too close for comfort - I think the checkbook comes out for McCain, NRA.  Not that I agree with him on everything (or most things), but he gets two issues exactly right:  The War and The Courts.  Unlike Obama Luther King

Posted by: ronnie dobbs at June 26, 2008 10:53 AM (hmHqH)

21

The Chap - here is my favortie part of the whole decision:

"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."

(emphasis mine)

Any chance we can talk Scalia into accepting the Republican nomination?

Posted by: Murph at June 26, 2008 10:56 AM (Dw2sU)

22 Totally correct, #20.

I loathe and detest McCain; he is such an asshole and so dismissive of conservatives. But the court, the court matters! He may not get a Scalia or a Thomas though the Senate, but at least there is hope. Obama would put another Stevens or Ginsburg up there.

Posted by: Log Cabin at June 26, 2008 10:58 AM (j7zrD)

23

Constitutional rights are enshrined with
the scope they were understood to have when the people
adopted them...

That needs to be carved in stone in monster big letters right in front of the the Capitol.

Posted by: ThomasD at June 26, 2008 11:02 AM (21H5U)

24 So far I am underwhelmed.  Great for the poor souls who currently reside in D.C.  Thin gruel for the rest of us.  The entirety of the ATF still stands, and by the type of legal reasoning described in the ruling the First amendment says you are perfectly free to publish or possess, but the government can still regulate, the sale and distribution of your newspaper.

Posted by: ThomasD at June 26, 2008 11:13 AM (21H5U)

25 It's a good thing that the Court upheld gun right, we'll need 'em to fight off the Mexican Army mercenaries....

Posted by: Dr. Remulak at June 26, 2008 11:16 AM (YmPwQ)

Posted by: Dr. Remulak at June 26, 2008 11:18 AM (YmPwQ)

27 It would be very odd if the 14th Am. did not apply this to the states. I have read the 14th., there is nothing saying "except for the 2d amendment.
We are going to need guns after that Gitmo decision.
PS Scalia does more good on the Court than he could as president.

Posted by: joe at June 26, 2008 11:19 AM (Ukf53)

28 They were thinking about a "living breathing constitution"  ...

Someone please shoot it so it is no breaths no more.

Posted by: GRC at June 26, 2008 11:19 AM (keQTO)

29 Hell yeah!  I'm off to shoot sumpin'...

Posted by: Herr Morgenholz at June 26, 2008 11:21 AM (5aa4z)

30 I notice Bryer also goes right to prohibitions on concealed weapons.

Maybe this is what it took to get Kennedy to go along?

I don't like the language.

Restrictions are fine but I don't see how you can have a right to guns for self defense and say it's limited to the home. What about your self? Your car?

The language is bad too in that both say concealed. Does this mean they can't do crap about open carry? Do they want everybody walking around like John Wayne?


Posted by: Rocks at June 26, 2008 11:26 AM (Q1lie)

31 I will help do whatever it takes to overturn the oppressive Illinois gun ownership laws.

Posted by: IronMansLiver at June 26, 2008 11:31 AM (Dl5d+)

32 I like Scalia as a dude, but as a Justice, he leaves gaps in his seemingly state-restrictive opinions that are *coincidentally* just the right size to drive the whole government through.

We'll hate this ruling as soon as it becomes a precedent. There's nothing short of an outright federal ban on all guns everywhere that it actually restricts; the rest, it encourages.

Posted by: Retired (Not Gay) at June 26, 2008 11:40 AM (TKTME)

33

This decision will go down in history, and represents the death of the Democrat Party as we know it.

Without the ability to change the meaning of words; without the ability to disarm its opponents, the Democrat Party can now never grasp the power it sought. The only other right left that they wish to control is the right of free speech (see Pelosi's activities regards the Fairness Doctrine).

The Democrats have, for the last 50 years, sought one by one to diminish the rights of the People; so that it can produce the end of Democracy in America.

Today's decision represents a coup de gras to this effort. Democrats are now left with only one weapon with which to bludgeon the People.

Their intellect.

Posted by: justwatchinghistory at June 26, 2008 11:40 AM (Ncq2X)

34 Okay so later Scalia says this:
 
we find that they guarantee the individual right to possess and carry weapons in the case of confrontation.

There is an unassailable right to CARRY a handgun. But there can be a "prohibition" of concealed weapons? It's bad language, he should have said restriction. To prohibit something is do do away with.

Posted by: Rocks at June 26, 2008 11:41 AM (Q1lie)

35

Do they want everybody walking around like John Wayne?

I don't know about them, but I do.  No problem with that at all, AFAIC.

Posted by: Rocketeer at June 26, 2008 11:42 AM (GFaLW)

36 Many have asked why I joined in the majority opinion.  Simply, because at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life, and to blow the living shit out of bad guys in my DC condo.  And hobo hunting...


Posted by: Anthony Kennedy at June 26, 2008 11:44 AM (5aa4z)

37

Rocks, seriously, what is your objection to open carry?  Is it aesthetic?  Why are you so attached to concealed carry?

I'm not trying to be an asshole here, I'm just sincerely trying to understand where you're coming from.

Posted by: Rocketeer at June 26, 2008 11:45 AM (GFaLW)

38 I am the Law.

Posted by: Anthony Kennedy at June 26, 2008 11:45 AM (5aa4z)

39

From an extremely brief reading, it appears that there is a right, perhaps, to carry, but that restrictions can be put on the carrying? Technically, you can "carry" in New Jersey, but it's de facto prohibited, simply because nobody will give you a permit (you need a Superior Court judge's approval).

 

AtS

Posted by: Andy the Squirrel at June 26, 2008 11:48 AM (xDozT)

40 Murph (#21): 

"Any chance we can talk Scalia into accepting the Republican nomination?"

In case the world hasn't realized it by now, we live in a dictatorship of nine old people in robes.  The President and Congress only matter insofar as they get to determine who those nine people are.  Today, five of our dictators made a wise choice, but that is no guarantee they'll make wise choices the next time around.

I know you are being facetitious, but, sadly, being one of those nine is far more important to our rights than being President for four years.  We need Scalia to stay right where he is for a good, long time.  Ditto--perhaps even moreso--Thomas.  The jury is still out on Roberts and Alito, but I already like them better than any of the other five.

Posted by: Scott at June 26, 2008 11:51 AM (9ypY/)

41 Rocketeer I have no objection to open carry. As far as I'm concerned if you want real security you should walk around with a double barrel cracked over your elbow. But it does make it a little hard to use your blackberry in the subway.

My problem is if open carry is all you have. I don't think it right to force a gun owner to make his hand gun easily accessible to stealing in a crowded situation.


Posted by: Rocks at June 26, 2008 11:51 AM (Q1lie)

42

Over / under on how many more updates from Gabe after his "3rd and final" one... the current line is 4. 

Posted by: AndrewsDad at June 26, 2008 11:53 AM (C2//T)

43 Andy,

Can you carry in the open in NJ?

Posted by: Jahiliyya at June 26, 2008 11:54 AM (Wy05x)

44 NOTHING like a good Scalia opinion in the morning. Nothing.

Posted by: Guy in Utah at June 26, 2008 11:57 AM (V3WTz)

45 According to the dissenters, it's something greater than rational basis review and Scalia writes that the D.C. gun laws would "fail constitutional muster" under any of the standards of scrutiny.

As Scalia points out, it has to be something greater than rational-basis review. Since any law can be struck down for lack of rational basis, it would be otiose to enumerate a right only to subject it to a level of scrutiny which would apply to it even if it weren't enumerated.

Posted by: Cerebral Paul Z. at June 26, 2008 12:02 PM (V2sai)

46 I'm not worried about a prohibition on concealed weapons, if we are allowed to openly carry (and use) them. The prohibition of all weapons, concealed or not, was the main worry here. The individual States can & probably will be able to decide the degree of openness and readiness of use that their populaces feel is sufficient. The SCOTUS ruling though says that good citizens can't be rendered defenseless, or made to violate the law by owning a proscribed weapon in order to avoid being defenseless.

I'm not sure why Gabe is complaining about Scalia not striking down or reversing prior decisions. The Court has upheld the 2nd Amendment in toto, which strikes me as being a positive, permissive precedent which may prove useful to gun-owning citizens later on. (The Leftards will try to get this ruling overturned before the decade is out, especially if the Obamessiah, Baba Pelosi, and Reid Unraed are in charge.)

I also like Scalia's general affirmation verdict, because it denies the Leftards their usual slow-death-by-encroachment tactics. It's not just about handguns, or assault weapons, or armor-piercing bullets, it's about the absolute individual right of free American citizens to purchase, own, maintain, and use firearms to protect themselves, their loved ones, and their property. Period. Good ruling, since if/when the Leftards try a challenge, they will have to do so knowing their motives are clearly seen by the American public.

I don't know why Stevens voted against it solely on the basis of acknowledging the Government's ability to restrict the types of weapons. OK, so we can't all own M2 Browning machine guns, or at least not without special & expensive licenses. Big deal dude, why not just vote "yes" on general principle and then write an opinion clarifying it?

The only justices who voted "no" without reservations and legal hair-splittings were Ginsberg & Souter. I guess we know where they ultimately stand on Constituionality. Note, the Obamessiah is on record as having said he admires Ginsberg. You have been warned.
 
 

Posted by: exdem13 at June 26, 2008 12:03 PM (fenBi)

47 I think we all knew which way Supreme Court Justices Penn and Teller were going to swing on this.

Posted by: Cincinnatus at June 26, 2008 12:06 PM (ZAlQ3)

48

The opinion definitely leaves some issues open like the level of scrutiny that judges are to use on evaluating other firearm measures.  What probably happened is that some combination of Scalia, Thomas, Roberts and Alito wanted to put it at strict scrutiny (the most exacting level of review) while Kennedy wanted to a lower standard.  Scalia & Company probably did not want the ruling to be drowned out by a bunch of plurality opinions, so they just noted that a total ban like DC's would not survive any level of scrutiny.  BOTTOM LINE ON FUTURE CASES: today's win notwithstanding, it looks like there are at least five votes on the Court that will apply a much more forgiving standard of review to other measures.  If that is the case, this victory is going to feel hollow after awhile.

Incorporation to the states was not reached because the case only involved DC's enactment.  But the fact that all five signed on to footnote 23 indicates to me that the Heller 5 would incorporate it.  Plus, it's usually leftists who argue for incorporation, so it may be that all nine would incorporate the right to the states. 

 

Posted by: Scott at June 26, 2008 12:10 PM (9ypY/)

49 Okay Scalia  does a little better later with this:

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 arms.

He says carrying can only be forbidden in "sensitive" places but he didn't use concealed here at all. I really am starting to think this is how they got Kennedy aboard. But the status of whether concealed carry can be prohibited outright is very muddy, which isn't good IMHO.

I do think this opinion makes it very clear that people have a right to carry guns openly and that can not be prohibited except for "sensitive places".

Posted by: Rocks at June 26, 2008 12:15 PM (Q1lie)

50 ABC radio spin: longstanding laws against guns are ok.

Posted by: Loren Heal at June 26, 2008 12:19 PM (uiKEv)

51

In a dissent he summarized from the bench, 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." Uhmm assshole, the 2nd pretty much clears that up.

He said such evidence "is nowhere to be found."

Justice Stephen Breyer wrote a separate dissent in which he said, "In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas."

Yes, judges matter. Who the fuck do these assholes think they are? Term limits for fucking judges and congressional peer review for every act of activism they perpetrate whether they are with the majority decision or not. The COTUS shall not be infringed you socialist assholes.


Posted by: mgnmfrc1 at June 26, 2008 12:24 PM (jEcDD)

52 A good solid win. Not a grand slam, but a homerun nonetheless. The thing with the Roberts court, and Roberts has been clear on this, is that his conservatism isn't just ideological, but in method. He is about getting consensus when possible, keeping a narrow scope on decisions, and on trying not to make abrupt turns on precedent (aka stare decisis [sp?]). In this particular decision, there managed to be no concurrences within the majority, they kept it narrow to DC (though with implications sure to influence later cases) and they didn't really overturn any previous rulings, Scalia simply stated affirmatively the meaning of the 2nd Amendment. So not only a conservative ruling in an ideological sense, but conservative means used to achieve a conservative end. That is a good thing.

Posted by: Lee at June 26, 2008 12:40 PM (+kJAy)

53 .....the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons....

"......shall not be infringed."

Similar to "Congress shall make no law..."

Senility is a bitch

Posted by: Herr Morgenholz at June 26, 2008 12:42 PM (5aa4z)

54

Whew, what a relief. The corpse of the Constitution of the United States of America, thought to be completely dead just a week or so ago, seems to still have a weak pulse and shallow breathing.

Thanks, Scalia, Thomas, Roberts, and Alito for dragging Anthony Kennedy into service for your efforts to revive America as envisioned by the Founders.

Posted by: Hank Rearden at June 26, 2008 12:45 PM (tcy4k)

55 I dunno where he gets the graphics but this one is pretty cool:

Say No to O!

Posted by: GRC at June 26, 2008 12:57 PM (keQTO)

56 Regarding concealed carry restrictions...

You still have, and pretty much have always had, the right to carry unconcealed, without a license. In fact, I believe more have been exercising that right lately.

Regarding the newspaper analogy... newspapers have always been regulated... for example, libel laws are predicated on the notion that you can print it, but you might be liable for what you say. And "a priori" (is that the right term?) protection has made it so that the state can't prevent you from saying it, only prosecute you afterward. Right?

With the notable execption of McCain-Feingold, that is.

Lastly, I would trade incorporation of the 2nd for de-incorpration of the rest, in a heart beat. The 14th was a power grab, and did NOTHING to help prevent oppression of previous slaves, and was actually designed to allow already established power to continue oppressing people through the back door, so to speak. I will grant, however, that you have to study our constituional structure in great depth to understand why thats the case.

Posted by: LiveFreeOrDie at June 26, 2008 01:13 PM (chMAU)

57 "Does that mean that gun bans will be evaluated according to the almost always fatal strict scrutiny standard"

If so, he's every bit the lunatic his detractors say he is. That quiver should have one arrow it it - race - and it should be used sparingly. God save us from multiplying suspect classifications.

Posted by: Knemon at June 26, 2008 01:19 PM (kz0eb)

Posted by: apotheosis at June 26, 2008 01:20 PM (xWk3U)

59 I am the Law!

Posted by: Judge Dredd at June 26, 2008 01:24 PM (vjl9g)

60

I am amazed at the incredible inconsistency of some of the justices in their opinions.

Guess who recently ruled that the combination of the Senate the Congress and the Executive, with clear and over ruling majority had made law in bot the federal level and the state level that the court saw fit to cast aside based on their "feeling" that there was some absent but growing consensus, and then turned around and complained that Heller vs DC should go the other way "because" the district of DC had made the law in an orderly fashion.  The district of DC is so much more Representative than either a full state legislature, executive and judicial system, and more Representative than a super majority of the US legislature and executive, so that the district of DC should be empowered to override the constitution?

Amazing.

Posted by: bcismar at June 26, 2008 01:27 PM (zhVlW)

61 Knemon: "That quiver should have one arrow it it - race - and it should be used sparingly. God save us from multiplying suspect classifications."

First, what the fuck are you saying? Second, is it satire?

Posted by: LiveFreeOrDie at June 26, 2008 01:31 PM (chMAU)

62

The court is entirely consistent here.

We need the right to bear arms to kill all the child rapists.

Posted by: arminius at June 26, 2008 02:05 PM (fN+Wl)

63 I guess justice "two face" Kennedy's coin came up clean side up this time.

Posted by: Christopher Taylor at June 26, 2008 02:08 PM (0+Ggj)

64 i smell a loophole cooking. like banning the sale of ammunition. seriously, what would stop the soon to be overwhelming lib congress to inact some inordinate tax on ammunition? or greatly restrict the sale thereof. if the city council of san fran-freako can inhibit marine recruiting then what could the bastards in congress do to inhibit ammunition sales?

Posted by: spear at June 26, 2008 02:37 PM (+ZAGv)

65 "First, what the fuck are you saying? Second, is it satire?"

Satire? No. Incomprehensible? Probably.

I'm saying that the "strict in theory, fatal in fact" heightened scrutiny should only be applied to racial distinctions. There, you've got morals, history and the constitution itself (the 14th and 15th amendments) all lined up, all saying you can't legally enshrine racial distinctions without a REAL good reason. Race is a "suspect classification," and it's good that it is, but most of what's driving most conservatives crazy about current jurisprudence is the proliferation of these "suspect classifications." E.g. sexual orientation, in the recent California decision.

Posted by: Knemon at June 26, 2008 03:00 PM (kW5co)

66 OK. My bad.

You make a good point. No doubt the problem was just my thick head.

LiveFreeOrDie

Posted by: LiveFreeOrDie at June 26, 2008 03:33 PM (chMAU)

67

You still have, and pretty much have always had, the right to carry unconcealed, without a license. In fact, I believe more have been exercising that right lately.

No, no I do not.

That is illegal in Illinois.

It's not one of those situations where it's actually legal but the cops don't know it is. It's actually illegal.

Which is why I'm hoping the NRA sues now. Chicago's got a hell of a ban going on too. Beyond the 'carry' issue (which to me, without the right to carry the 2nd ammendment is nearly useless. We must be able to carry), Chicago says you're not allowed to own a gun unless it's registered.

PS Registration is closed and not available.

Posted by: This one's for the ladies at June 26, 2008 03:44 PM (m6c4H)

68 Spin on Cnn

Some bubblehead newsbabe:
"McCain and Obama aren't that far apart"

HAHAHA

Posted by: liontooth at June 26, 2008 04:10 PM (n3pxb)

69 smell a loophole cooking. like banning the sale of ammunition. seriously, what would stop the soon to be overwhelming lib congress to inact some inordinate tax on ammunition?

The difference now I think is that it has been established that the 2nd Amendment is an individual right. Attempting to do the ammo thing would be a backdoor attempt to limit the right, similar to having a poll tax to restrict the right to vote.

And since liberals want the state to pay for abortions, how about the state now paying for guns?

Posted by: liontooth at June 26, 2008 04:17 PM (n3pxb)

70 Well, the clock til Civil War 2 turned backward a bit.

Posted by: SGT Dan at June 26, 2008 07:56 PM (Pb41/)

71

Regarding the newspaper analogy... newspapers have always been regulated... for example, libel laws are predicated on the notion that you can print it, but you might be liable for what you say. And "a priori" (is that the right term?) protection has made it so that the state can't prevent you from saying it, only prosecute you afterward. Right?

Prior restraint is the term of art you seek.  A publication, in and of itself, cannot be regulated nor licensed as a means of preventing its creation or existence. 

Certainly what you do with a publication is open to legal restriction.  I can write all the nast untruths I want, so long as I do not distribute them to the detriment of soemone else. 

Likewise, I should be free to possess weapons and freely discharge them, so long as I do not unlawfully harm someone in the process.

Gun bans are a form of prior restraint upon the Second Amendment.

Posted by: ThomasD at June 26, 2008 11:34 PM (LcNn7)

72 Scalia's "in the home" comment is just an example of how the Supremes can never get anything entirely right. They always have to word something stupidly in such a way that it brings the whole damned thing later, or not do their homework, or generally fuck it up in some lasting way.

Now, we all know Scalia did not intent to say that CCW wasn't protected, but 40 years from now dumbass leftists are going to say that he did, just like Jesus was a Marxist and Thomas Jefferson thought that only PBS should have free speech, or whatever their brain error is today.

Just skip the three words and make it unambiguous.

Though the dissent was absolutely, positively imbecilic. I mean, judges who apparently didn't even bother to do five minutes' research on the subject - that level of refusal to do the basics of your job would be pretty terminal in a lot of jobs.

How do you manage to become a supreme court judge and manage to avoid every single bit of context the Founders provided on the subject? I mean, that takes some effort.

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73

@36 -

Um, Justice Kennedy, when you say "blow"........

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When Clinton Was President, Torture Was Cool
What Wonkette Means When She Explains What Tina Brown Means
Wonkette's Stand-Up Act
Wankette HQ Gay-Rumors Du Jour
Here's What's Bugging Me: Goose and Slider
My Own Micah Wright Style Confession of Dishonesty
Outraged "Conservatives" React to the FMA
An On-Line Impression of Dennis Miller Having Sex with a Kodiak Bear
The Story the Rightwing Media Refuses to Report!
Our Lunch with David "Glengarry Glen Ross" Mamet
The House of Love: Paul Krugman
A Michael Moore Mystery (TM)
The Dowd-O-Matic!
Liberal Consistency and Other Myths
Kepler's Laws of Liberal Media Bias
John Kerry-- The Splunge! Candidate
"Divisive" Politics & "Attacks on Patriotism" (very long)
The Donkey ("The Raven" parody)
News/Chat