Individual right to bear arms vindicated; still no right to arm bears

The Supreme Court is expected to rule very shortly on, essentially, what the Second Amendment means, in the Washington, D.C. handgun ban case, D.C. vs. Heller.

SCOTUSblog is liveblogging.

UPDATE: By a 5-4 vote, with no plurality or concurrences — i.e., the five justices in the majority all agreed on the same rationale — the "Second Amendment protects an individual right to possess a firearm." (That quote is from SCOTUSblog, not from the opinion.)

UPDATE 2: Here’s the opinion and the dissents (PDF). Scalia wrote the majority opinion, which was joined by the other four conservative justices. There were two separate dissents, one by Stevens and one by Breyer; each dissent was joined by the other three liberal justices. So, like I said, a clear 5-4 split, with no muddying of the waters by multiple plurality opinions and such.

If you don’t want to read the whole thing, some relevant quotes from the majority opinion can be found here. And here’s an initial analysis from SCOTUSblog’s — although, as the Volokh Conspiracy’s Orin Kerr says, "the details of the opinion are critical; it will take a bit of time to read the decision to get a sense of what it means."

86 Responses to “Individual right to bear arms vindicated; still no right to arm bears”

  1. Jay Johnson says:

    GO SECOND AMENDMENT!!! BEEEEAT ANTI GUN NUTS!!!

  2. Jay Johnson says:

    They just updated the liveblog to say that there are actually 2 dissents.

  3. dcl says:

    Up the dominant clause not the subordinate one! But given the current court is heavily peopled by fascists (Sorry boys and girls check your dictionaries before complaining) I imagine they will grant support to the subordinate clause and then be shocked and horrified when big city murder rates start shooting up again. Seriously, are people this stupid?

    120 years ago in the freaking wild west nobody had a problem with the check your guns at the edge of town rule but for some reason now need assault rifles in Manhattan? Seriously, there is no game in Manhattan folks. And, as is Andrew’s favorite argument, will this mean that regulating fire arms in, say, air ports and on air craft will also be outlawed? Because seriously folks, that’d be really clever—no shampoo but your glock is fine…

    Really Jay? You honestly think that’s smart? I have no problem with people having shotguns and hunting rifles, that’s fine. Hell, have a shotgun in the city for all I care, nice big pump action shotgun (security experts have identified it as the most effective home protection weapon, the sound makes burglars wet their pants and run away, in a panic situation you don’t have to shoot straight for it to be effective, very few people can keep going through a shotgun blast and depending on the shot pellets used it probably won’t kill innocent bystanders (though it could season them quite well a la Dick Chenny).)

    So up the militia!

  4. JT says:

    but what level of scrutiny will they apply to regulations on guns.

  5. dcl says:

    I’m shocked shocked I say to find idiots on the Supreme Court… It almost (but not quite) makes you kind of wish someone would walk up to one of those gun advocacy nuts, pull out a gun and say, “What do you think of gun control now bitch” and then walk away… I dunno, would that technically be illegal? It seems like it would be illegal, but if all the paper work was good on carrying the gun… I think brandishing a fire arm is still a crime though, right Brendan? Bah, stupid Supreme Court.

  6. dcl says:

    Oh, hang on hang on…

    Activist judges legislating from the bench and over ruling the will of the people! Activist Judges legislating from the bench and over ruling the will of the people!

  7. Angrier and Angrier says:

    “The right of the people to keep and bear arms shall not be infringed”

    I think if you look at the 2nd Amendment through the prism of a strict constructionist, there should be NO laws regulating guns.

    As for the whole militia argument, the language about “shall not be infringed” indicates to me that the militia language is meant to be a pre-amble to the 2nd Amendment. Otherwise, having the right to bear arms strictly for the purpose of a militia would require an infringement on the right to bear arms if, for whatever reason, you were unable to serve in the militia.

  8. Brendan says:

    I think if you look at the 2nd Amendment through the prism of a strict constructionist, there should be NO laws regulating guns.

    I’m not sure that’s right, at least in the context of actual strict constructionist jurisprudence (and not a cartoonish, absolutist version thereof). For instance, “Congress shall make no law … abridging the freedom of speech,” yet there are plenty of laws that do precisely that — if the speech is incitement, or if it’s obscene, or if it’s defamatory, of it’s at an impermissible time, place or manner, or if it threatens the president’s life, or if it’s a newspaper article revealing troop movements, etc. etc. Hell, even Justice Black, the all-time champion of strict First Amendment absolutism, acknowledged that it’s okay for Congress to say that you can’t yell fire in a crowded theater, or that you can’t verbally enter into a contract with a hitman to kill somebody — even though laws against yelling fire in a crowded theater, and laws that punish verbal contracts, are, literally, “law[s] … abridging the freedom of speech.”

    Nobody’s really an absolutist when it comes to this sort of constitutional language. Not even the absolutists. Constitutional Law is, for everyone, an exercise in arbitrary line-drawing; the “strict constructionists” just draw their arbitrary lines a bit closer to the literalist/absolutist interpretation. But nobody’s actually a literalist.

  9. Joe Mama says:

    I imagine those who respond emotionally rather than logically will be shocked and horrified to learn that murder rates were plenty high already in cities with draconian gun laws (e.g., the city that passed the provision struck down today).

    It will take a while to absorb the critical details of the opinion, which is necessary before one can get any meaningful sense of what this decision means. I prefer to read Scalia in dissent rather than majority (he’s much more profound that way), but this should nonetheless be a very interesting opinion to read.

  10. Nomen Nescio says:

    oy. people, try actually reading the decision (http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-290.pdf)

    i’m only six pages in (out of 157, which includes the two dissents), but a lot of the grumblings by commenters above are addressed and decisively put down in that little bit already.

  11. Angrier and Angrier says:

    Brendan-

    Personally I believe the “strict constructionist” mantra is B.S. It seems to me Scalia et al are perfectly willing to depart from that philosophy when it becomes politically expedient.

  12. dcl says:

    I find Scalia annoying to read, as he is so often wrong and detached from reality and acts from bald political motivation.

    Does DC have a murder problem, yes. Was it far worse before the hand gun ban, yes. Will it get worse now the hand gun ban has been overturned? Only time will tell, but I can’t imagine anyway that it will actually help the situation.

    When it comes to the second amendment it comes to a question of commas, and which commas were the commas ratified. Though really, given writing styles then, commas can be almost completely ignored. There are obviously multiple clauses in the singe sentence and the version the states received has one comma the version the house and senate passed has three. Obviously this is a problem for us as we put much more weight on the comma now than in times passed.

    It is, ultimately a question of grammar, and which is the subordinate and primary clause of the sentence has always been a bone of contention. Are guns the primary clause or are militias. You can read it both ways, and given the framers of the Constitution, I kind of think that might have been the point. It does say a well regulated militia, which seems to imply, at least to me, that people owning and keeping arms was seen to go hand in hand with service in a militia. Almost as if it was expected that any person that was possessed of arms would also, by virtue of being a citizen of a free state and involved in their patriotic duty, be ipso facto part of the state’s militia—which the text of the amendment says should be well regulated. Again to the protection of the state and it’s safety and security being the root cause. That is, it seems both clause are sort of philosophically inextricably linked to each other.

    From a pragmatic reality stand point though, only a fool would see complete deregulation of guns as anything but an extreme danger and I can’t imagine this is what the framers actually meant, they were not stupid. They saw arms as a way to protect against invasion in a time when there was no standing army. Almost as if they were implying every citizen should have a gun and be part of a militia because our security depends on it. This leaves us in a bit of a vague position today, as state militias as a concept are all but dead. Perhaps we should bring them back and go from there. Up the Militia, lets all be like Switzerland (only a fool would try to invade Switzerland, that country is so freaking well defended… they may be neutral, but they are damn ready to fight, which is why nobody ever messes with them)

  13. Nomen Nescio says:

    Does DC have a murder problem, yes. Was it far worse before the hand gun ban, yes.

    taking the first sentence for granted, the second one would seem easy enough to support through comparative statistics. District of Columbia murder rates for the decade or so immediately prior to and following the 1976 handgun ban?

    (hint: the graphic of those rates has been all over the web, several times. D.C. murder rates spiked during the crack cocaine epidemic of the 1980s–90s, and has only recently fallen back to levels more like the late-1970s ones. see, e.g., http://www.disastercenter.com/crime/dccrime.htm or even http://en.wikipedia.org/wiki/Crime_in_Washington,_D.C.)

    and, y’know, “subordinate clause” versus “primary clause”? that’s all addressed in the opinion. you may find Scalia tedious — i know the man infuriates me more often than not — but that’s no longer a matter of English grammar, it is now settled law. go read.

  14. John Hardin says:

    dcl sez:

    > …walk up to one of those gun advocacy nuts, pull out a gun and say,

    > “What do you think of gun control now bitch” and then walk away…

    …why is it that the anti-gun crowd is always so violent?

    And yes, that would be illegal. Brandishing, and Assault with a Deadly Weapon.

    > Are guns the primary clause or are militias. You can read it both ways,

    Nonsense. One clause is the primary clause, one is the subordinate clause. If the subordinate clause is removed you will still have a grammatically correct and complete sentence. Which of these is a grammatically correct and complete sentence?

    1. A well regulated Militia, being necessary to the security of a free State.

    2. The right of the People to keep and bear arms shall not be infringed.

  15. Sandy Underpants says:

    Why is there suddenly renewed interest in the rulings of the Supreme Court? It seems that we had about 6 years of no media reporting on their decisions and the last two weeks it’s become a regular update beginning with the Gitmo detainees and then the pedophiles being immune from receiving the death penalty, and now this. Is this an attempt to heighten the importance of the election even more?

  16. dcl says:

    Settled law? It was a 5-4 decision, that’s hardly settled law, it’s bald political maneuvering that can easily change with the composition of the court. There is a reason a lot of effort went into getting a 9-0 on Brown.

    Okay, I’m less than two pages in and Scalia already has multiple logical flaws. What’s your point? So if regulation is okay for certain “sensitive areas” eg schools government offices etc. Where does the limit come from on declaring an entire city a sensitive area. Clearly we could declare the national mall a sensitive area, so encompassing everything in the Kite is easy with a hand gun ban under the general logic. We can also encompass all the other parks in the city on the same logic as schools. It’s stupid and arbitrary how we define sensitive. It’s simply say we want guns in one place, contrary to the will of the people but not others so we’ll make something up that lets us do it. Conservatives call this sort of behavior judicial activism. So why not declare the city as a sensitive? and an Air Port as not. It’s ridiculous and logically flawed.

  17. dcl says:

    There is no assault, you aren’t firing the gun. It is simply brandishing in a threatening manner, though not explicitly. As for being violent, it is more frustration with stupid short sighted behavior of gun nuts failing to think about the general ramifications of what they are arguing for.

    Both clauses form a complete thought. A well regulated militia is necessary to the security of a free state which necessitates that people have a right to keep an bear arms (or arm bears.)

  18. dcl says:

    Not to say that a certain degree of general danger isn’t necessary in a free society. Simply that everyone walking about carrying a gun is not a good idea… Perhaps it should be illegal to have a gun while intoxicated (similar to drunk driving laws). That might be more direct to the point of the problem. Thus it could be a crime to have a gun if you are simultaneously positive for any illegal drugs or sufficient alcohol as to be drunk (or any alcohol). Though that might be more annoying to hunters than the present situation.

  19. Nomen Nescio says:

    dcl, when it comes to commenting on the law, you are in a hole. do yourself a favour and quit digging — or, heck, do me a favour and speak on.

    yes, in fact, 5-4 decisions in the Supreme Court of the United States do settle matters of law within the United States. the justices are not a jury, and unanimity is not required. the closest a SCOTUS decision can come to being “not settled” — unless it’s later overturned — is if there isn’t a simple majority signing on to any opinion, but that is not the matter here.

    “assault”, in law, is basically an unlawful threat. oversimplification alert here, and IANAL and all that, but you seem to be in need of the cliff’s notes so that’s what i’m giving you. that’s also why “assault and battery” are two crimes (well, torts — cliff’s notes!), not one. freshman-level introductory classes to common law cover this, it’s not rocket science. you don’t even have to go to law school, such an overview class was part of my business degree, so you really don’t have much excuse for getting this wrong.

    and you can’t declare an entire city to be a “sensitive area” because people live there. when the law intrudes into the personal home, that’s a very different matter from the public sphere. are you even aware of what the complaint in Heller was all about?

    as for where to draw the line between what’s allowable and what’s not, this decision doesn’t say. that’s because this decision was deliberately crafted — just as Heller’s appeal was crafted — to be as narrow as reasonably possible. what Scalia and the majority are saying is that a blanket ban on all handguns is not constitutional, but as for what else may or may not be, that’s for later cases to iron out. that’s the sort of thing we’ve been doing with the first amendment for decades, even centuries — now the second will get the same respect and concern, as it deserves.

  20. Jim says:

    dcl: I’m no lawyer (so really it’s sort of pointless for me comment on this, since there are lawyers here… but hell, that never stopped me before) but I believe assault is the threat and battery is the act. So yes, the scenario listed above is assault, most especially when coupled with the language that sounds threatening.

    At any rate, I’m split on how I feel about this. I have always been one to interpret the constitution as protecting the collective right to bear arms, but at the same time I think banning handguns is a bad idea.

    So I guess I’m glad to see the handgun ban gone, but unhappy about the interpretation by the court.

  21. Angrier and Angrier says:

    All of the Founding Fathers had guns. They shot animals. They shot people who harassed them. At no time during the Revolutionary War or the War of 1812 did the Founding Fathers go out and take guns away from people who did not participate in militias (unless, I imagine, they were Loyalists fighting for the Crown). During the 1800s, sod busters and pioneers who didn’t have guns were DOA.

    I think it is safe to say that when it came to guns, the Founding Fathers weren’t thinking in Ralph Nader terms about how they would or wouldn’t be regulated.

    Have times changed? Would it be beneficial to re-evaluate how guns are used in this country? Yes and probably. But short of a Constitutional Amendment, which will never happen, we are left with the status quo.

  22. Anonymous says:

    Bald political maneuvering? If liberals interpreted the 2nd Amendment the way they insist on interpreting all the others, guns would be mandatory and issued by the government.

  23. dcl says:

    They don’t settle them. See Roe, they simply decide them.

    Verbal assault yes that would be correct. Physical assault and or battery and or assault with a deadly weapon, no. And again, the threat is implied not specified putting it in a grey area with regards to verbal assault, and if you leave on off the “bitch” at the end there is nothing that generally rises to the level of verbal assault—such as calling someone a skank ass fucking whore or something. Instead it is phrased as a simple question. For example can I ask you where the train station is while holding a gun? And does that imply a threat of physical violence? Phrased and setup correctly I’d imagine there is a way to do it while keeping yourself squarely in at least a very grey area if not safely on the right side of the line. Of course a tort for emotional harm causing them to fear for their life might come into it.

    For example, does handing a bank teller a note that says, “I have a gun. Please tell me to have a nice day” constitute a crime? Obviously it’s bizzar. But is it a crime? Especially if you don’t have a gun. There is not a threat. There is a statement and a request phrased without an imperative. Nor is there any attempt at theft or some other felony.

    My apologies,. I’m entertained by truly insane hypotheticals the fall into strange gray areas. In the above, what charge would you bring you you are the prosecutor? Why?

  24. Blam Pow says:

    Who cares? The “bad guys” all have guns anyway in places like D.C., Chicago, and other cities with gun bans.

  25. dcl says:

    Clearly the founders never envisioned the present situation. But also they did not think it prudent to have people walking about armed at all times. Like I said, I think they saw arms and militias as linked ideas. All men were part of the militia and thus had and needed arms for those and other purposes. Knowing the founders, they expected the people to identify the appropriateness of when to carry them and when not to etc etc.

    blank at 1:07:12 I doubt that’s quite right. Though I would like to see better incorporation of the 9th amendment.

    Responsible gun ownership in context is fine. A good thing actually, especially in the context of the second amendment. Irresponsible gun ownership that puts others at risk is not. And I don’t see the second amendment as allowing for irresponsible gun ownership. Which is not, specifically, the issue decided here in this case, I know. Though it does go to the tools afforded to limiting irresponsible gun ownership and what is permissible in doing so. A point about which it may or may not go to far. If the question is truly capricious application of the law as the Syllabus of the decision suggests I might even go so far as to say the opinion has a valid point, thought that is an incorporation of the 14th and not the second as it would be an equal protection matter.

    Simply put, like with free speech and other amendments, the question is to large extent between responsible and irresponsible exercise. Militias and the term well regulated are in the amendment to make clear that there is certain responsibly, both civic and personal, that goes along with whatever specific right the amendment is seen to be granting.

  26. dcl says:

    “who cares the bad guys have guns”

    True, and they can be arrested simply for possessing them as a primary offense. In other words the police do not need to wait around for them to commit a crime with them.

  27. Anonymous says:

    They don’t need to “wait for them to commit a crime” now. 90% of these guns are unregistered anyway.

  28. Alasdair says:

    dcl – “Clearly the founders never envisioned the present situation. But also they did not think it prudent to have people walking about armed at all times.” – are you able to back that particular inference up with anything factual ? I suspect that you will be able to find things saying that property should not be allowed to walk around armed, but I highly doubt that even half of ’em believed that that a responsible person should have any significant restrictions on carrying weapons pretty much wherever they went …

  29. David K. says:

    I agree with AA that the true solution here is to re-think (and probably repeal) the Second Ammendment, its anachronistic. I can’t imagine the founding fathers would have been in favor of people carrying around hand guns that could accurately fire of multiple rounds in a few seconds. Revolutionary war era guns used by a highly trained soldier could shoot six shots a MINUTE, and their accuracy was fairly poor. The idea of an armed populace holding off our own military should it want to crush is is ludicrous unless we want to start handing out tanks to the citizenry (we don’t).

    Guns should be allowed but well regulated, however I can’t see a clear way to that without a constitutional ammendment.

  30. Blam Pow says:

    Where is the waiting line for tanks? I want to be the first on my block to get one!

  31. Wobbly H says:

    Davie,

    Please. No one is going to repeal the Second “Ammendment” (sic). In light of this decision, I’m sure that guns will still be allowed to be regulated but allowed. There are limits and regulations for First Amendment rights, which have been well recognized, and there is certainly no reason why the Second Amendment protections would be absolute.

  32. Angrier and Angrier says:

    To qualify my statement, David K, I don’t believe a Constitutional Amendment repealing the Second Amendment is a “true solution.” First, it is highly improbable, so I don’t think it could be called a “true solution.” Second, I don’t believe an outright repeal of the Second Amendment would be necessary. It would be a clarification of the Second Amendment to overcome the disparate views that have plagued it almost since the beginning. But it will never happen.

  33. Nomen Nescio says:

    Guns should be allowed but well regulated, however I can’t see a clear way to that without a constitutional ammendment.

    really? have you tried reading the Heller decision? because when even Antonin Scalia (spit!) seems to think precisely such a thing ought to be possible, and goes out of his way to leave the door open for it, i rather don’t think we need to amend the constitution quite yet.

    (there’s also some words in there about how we don’t treat the rest of the bill of rights as if it only spoke of technologies that were available to the founders. “borders on the frivolous”, i think the phrase was for that line of thinking. do read, it’s quite interesting.)

  34. Sandy Underpants says:

    The 2nd amendment is pretty ridiculous in this day and age. It’s not like any militia or group can defend this country against the government, unless they consider missiles and radiological devices as protected by the 2nd amendment.

    I’d like to see DCL try that harmless note experiment at a bank near him. I’m sure everybody would have a good laugh about it at the jailhouse.

  35. Andrew says:

    Scalia wrote the majority opinion, which was joined by the other four conservative justices.

    Who are the other four conservative justices? Kennedy is not “conservative”.

  36. dcl says:

    A. I can’t imagine the framers would have envisaged laws like they have in Florida allowing concealed cary and shoot first ask questions later. I also don’t think they would have thought it necessary to legislate the responsible and mature use and possession of fire arms. But can you honestly say they thought it would be just fine if everyone showed up to an election polling place armed? Clearly it is a matter of logic that the assumed people would be responsible in terms of how they used and carried firearms. We now have a irresponsible and entitled society where people go but it’s my right I can do whatever I want bugger off you can’t stop me even if it is stupid.

  37. dcl says:

    Andrew, yes, he is…

  38. dcl says:

    Sandy, it is a hypothetical that is entertaining because it is ridiculous.

  39. Aaron Burr says:

    “I can’t imagine the framers would have envisaged laws like they have in Florida allowing concealed cary and shoot first ask questions later.”

    Really?

  40. Joe Mama says:

    “Conservative” here is a relative term, i.e., if you think Scalia, Thomas et al. are “fascists,” then yes, Kennedy would be “conservative.”

  41. Nomen Nescio says:

    laws like they have in Florida allowing concealed cary and shoot first ask questions later.

    they do? care to quote the text of those laws, maybe give us a citation to the statutes?

    (FWIW, forty-plus states allow concealed carry, including the one i live in — Michigan. blood does not flow in the streets here, except maybe in Detroit, but that was the case even before that law was passed, so…)

  42. yea says:

    i have no problem with this decision. its practical implications are quite small and absolute handgun ban is impractical and is likely to only hurt law abiding citizens who want to purchase protection. gun control starts with getting rid of illegal guns.

  43. Joe Loy says:

    Dane, settle down, you’ll give yerself Apoplexy ;>.

    By way of providing folks with a convenient Firewall against the otherwise-irresistable temptation to (Dane should Pardon the expression :) Shoot from the Hip ;> at this target, I hereby take the Liberty of excerpting the entire SCOTUS  “Syllabus” (a.k.a. Headnote) to the decision, as “prepared by the Reporter of Decisions for the convenience of the reader.” Boldface emphases are, as always, Mine :).

    Syllabus

    DISTRICT OF COLUMBIA ET AL. v. HELLER

    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

    No. 07–290. Argued March 18, 2008—Decided June 26, 2008

    District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.

    Held:

    1. The Second Amendment 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. Pp. 2–53.

    (a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

    (b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that 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. Pp. 22–28.

    (c) The Court’s interpretation is confirmed by analogous armsbearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.

    (d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.

    (e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.

    (f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individualrights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

    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. 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

    3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.

    478 F. 3d 370, affirmed.

  44. Jim says:

    Speaking to the intents of the founders, if you actually read about the debate that spawned the 2nd amendment and about the changes in the language of the 2nd amendment as it made its way through congress, I think it heavily implies the collective right.

    The debate at the time was largely over the right to have a standing army, and the language of the 2nd amendment in its early forms had even more to do with militias than the final product.

    Now, it is true that one could argue that there is a reason that the language was made more general.

  45. Joe Loy says:

    “Now, it is true that one could argue that there is a reason that the language was made more general.”

    Yeah, it is, and I think I know of one who Did, and four Other ones who Agreed with him. ;>

  46. Nomen Nescio says:

    Jim, you may think that’s what the founders meant, but a great many people have read the same sources and disagree with you. not just the five justices in this opinion (which goes into the very subject at some length, incidentally), but countless others who wrote and supported Amici briefs for Heller.

    seriously, track down those Amici briefs. several of them make excellent reading, and some go into ridiculous detail about why their authors do not think the founders meant what you think the founders meant. much of the gun control debate in this country was elegantly summed up in the briefs presented to the supreme court prior to their hearing this case, and all those briefs are publicly available; they make a great resource.

  47. Jim says:

    I will check that out. Incidentally, the most convincing counter argument to my viewpoint that I’ve seen so far is about where the 2nd amendment would have been placed had it not been an amendment. It would have reportedly been in Article 1 Section 9, which certainly implies that it was intended to protect an individual, based on the other items in that section.

    I’ve read pretty extensively on this previously, but I’ll read the briefs you recommended and we’ll see if they can’t change my mind. Doubtful. :)

  48. Jim says:

    Oh, also, I’d point out that the number of people who agree with a viewpoint has no bearing on its validity. I take Joe’s comment to be tongue in cheek, but it would appear you were trying tot convince me of your viewpoint by its popularity.

  49. Nomen Nescio says:

    no, actually, i was trying to convince you of its reasonability on the grounds that many otherwise reasonable people have reached it. also written about it, and about their arguments for it; some of those arguments are summed up in the briefs in question.

    although, if we’re talking only about what a bunch of long dead white men thought and believed two centuries ago, well… holding a popularity contest to settle the matter seems as useful as any other method, honestly. it is rather an academic point, after all.

    (me, i base my support for the 2nd amendment on other rationales — principally that most law-abiding citizens can be trusted with the responsibility and therefore ought to be allowed the liberty. but that’s another story.)

  50. Joe Loy says:

    dcl: What’s DC gonna do? Seriously. / I saw Mayor Fenty on TV saying they’ll (reluctantly & disappointedly of course) comply, setting up a Licensing system as soon a possible, etc. etc.

    But I’d assume that cannot happen Overnight, just logistically; and that (at least Perhaps -?) a new Ordinance may also be needed establishing Procedures and Qualifications (and more to the point, DISqualifications) for Licensing; and So forth.

    So my Q is: In the Meantime what is the status of the presumably-Numerous DC residents (besides the Plaintiff) who are presently in Possession of handguns ~ ALL of them, both Bad guys & Good, Illegally so UNTIL NOW? / Maybe the decision addresses this; I dunno. / With the Ban now down the constitutional crapper ;>, logically (?) I’d think that until a Licensing system is Up & Running, with appropriate Prohibitions specified in city law (felony conviction, mental disability, drug addiction etc etc) , EVERYONE who keeps a handgun in their DC home must be deemed to do so Legally. (And IF so, then I guess when the Licenses are ready, all the gunowners gotta come on down and Apply for one, by some sort of a deadline.)

    Yes? No? Wot’s the Deal?

  51. David K. says:

    principally that most law-abiding citizens can be trusted with the responsibility and therefore ought to be allowed the liberty

    Even if I thought this was true (I don’t, I think people in general CAN’T be trusted with guns becuase to many people are lazy/forgetful/etc. ) the consequences of accidents or even just fraction of a fraction of people abusing this freedom is significant enough that it warrants much greater scrutiny.

  52. Nomen Nescio says:

    if the general populace cannot be trusted with guns, what if anything CAN they be trusted with? must we all be locked in padded cells for our own safety?

    on the other hand, if the general populace can be trusted with any other implement of potential destruction — matches, gasoline, hatchets, chainsaws, bows and arrows, kitchen knives, bleach and ammonia, flour dust — but simply not guns, why not guns? what makes firearms so magically special?

    my view: people can be trusted as a general rule, because if they could not, we would be unable to build a functioning society. yet we have, in fact, a largely functioning society, and we’re far from the only people to ever have built one. ergo, most people are mostly trustworthy.

    in any event, Thomas Jefferson had it right; if we can’t be trusted to govern ourselves, how can we ever be trusted to govern others? (http://www.brainyquote.com/quotes/quotes/t/thomasjeff109179.html)

  53. Jim says:

    no, actually, i was trying to convince you of its reasonability on the grounds that many otherwise reasonable people have reached it.

    But this is what I’m talking about. That line of reasoning isn’t valid. Ignoring the historical examples of the majority of ‘reasonable’ people being dead wrong on an issue, it just isn’t sound reasoning. It would only be sound reasoning if we could assume everyone involved in the debate had the same likelihood of being right. But everyone doesn’t. And determining individual likelihoods of being right is an opinion in itself. Propagation of error, etc.

    The value in the opinion of others (for example in the documents you recommend I read) is not that I can read it and believe these people to be smart so I must believe what they believe. It is in the expectation that they will have considered facts previously unknown to me. Or perhaps they have used previously known facts to construct an argument previously unconsidered.

    Only when one holds only cursory knowledge on a subject, and doesn’t have the ability to reasonably bring themselves up to speed should they consider what the majority of ‘reasonable’ people think on the subject. For example, a politician making policy requiring a consideration of science. If you want to come to a true understanding of a matter for yourself, however, the direction of expert opinion isn’t as useful.

    I’m perhaps even more concerned that you believe that what the founders thought could be boiled down to a popularity contest, and then go on to say that it is an academic exercise (essentially implying academics is a popularity contest).

    I can assure you it is not. That isn’t to say that momentum and popularity doesn’t influence what subjects get studied, but I can say it doesn’t influence results. There is a body of history to consider, and the quality of each work is up for consideration as to how much weight it should carry in your opinion.

  54. Alasdair says:

    Jim – “I’m perhaps even more concerned that you believe that what the founders thought could be boiled down to a popularity contest, and then go on to say that it is an academic exercise (essentially implying academics is a popularity contest). “ – WOW !

    You didn’t get a Classical Education, did you ? (That’s an astounded observation, not a put-down !)

    Saying that something is an “academic exercise” doesn’t imply that “academics is a popularity contest” (although, given the current state of Higher Academia and the incestuous echo-chamber of opinions in the non-hard-sciences, one can understand how you might have formed your conclusion) …

    An “academic exercise” is one which is carried out for teaching and/or learning rather than being the Real Thing … in a CPR class, you learn to perform CPR as an “academic exercise” (and with no immediate Life-or-Death consequences) with the intent that, in a real emergency, you would be able to carry out the CPR effectively (and hopefully save a life) …

    Oh – and the “WOW” is the realisation that people *actually* in good faith based upon their own Life-experiences conceive the thought that you did …

  55. Nomen Nescio says:

    when i spoke of this issue (namely, what exactly the founders of this nation thought and believed way back then) as being an “academic exercise”, i meant to imply it had only limited, if any, practical relevance to the current world. knowing what they thought, felt, and tried to defend might be nice in some intellectually satisfying way, but how and why would it help us decide the policy questions we face in our modern world?

    because of this, i said it might as well be settled by a vote (or “popularity contest”) — that might not get us any closer to the truth of what those people really believed, but that truth is no longer obtainable anyway being as the founders are all dead. moreover, even if we somehow got there, we’d still be no closer to answering our modern problems.

    debating what the positions of the founders were is an interesting exercise in political philosophy, but it is in the end just philosophizing. eventually we’ll have to decide a more relevant issue: should we, today, allow ourselves the right to own deadly weapons or not? why or why not? even could we bring Jefferson, Madison, Franklin and Adams back to argue that question along with us, their opinions would not automatically carry any more weight than yours or mine.

  56. Jim says:

    Alasdair: I don’t think it does imply that. It was the joining of his two thoughts. Nomen in one sentence said it was an academic exercise, and then in the next stated this made it a popularity contest. I was simply trying to refute that. Which, I think, you agree with? I’m not sure what’s going on here.

  57. Jim says:

    Nomen: Actually, I think what the founders intended is an integral part of deciding what we do today.

    And no, Franklin’s opinion would most certainly not carry very much weight on this issue. :)

  58. JMOL says:

    “Even if I thought this was true (I don’t, I think people in general CAN’T be trusted with guns becuase to many people are lazy/forgetful/etc. ) the consequences of accidents or even just fraction of a fraction of people abusing this freedom is significant enough that it warrants much greater scrutiny.”

    Interestingly, I feel *exactly* the same way — but about votes rather than guns.

  59. Joe Loy says:

    JMOL, that is actually a good Point.

    Well. Except for the part about “rather than guns.” Because, you see, we Regulate votes. We License the voters: by requiring them to Register. And we Exclude from such licensing those who are non-Citizens, under-Age, currently-convicted Felons, judicially-certified mental Incompetents, too lazy/forgetful/etc to Apply by the pre-election deadline (including, to pro-actively Transfer their registration when they have Relocated to a different State), and So forth. / Additionally, we persistently insist that the fraction of a fraction of people abusing this Regulated freedom by attempting to commit Vote Fraud, is significant enough that it always warrants great Scrutiny.

    In other words ~ to paraphrase the SCOTUS headnote to the decision (see #2 in the Excerpt above) ~ like the right to keep & bear arms, the right to vote is not unlimited. // A further example of which Limitation is, that in the now Handgun-enabled District of Columbia ~ certainly a part of the USA, being the Seat of Government thereof ~ the resident citizenry’s “right to vote” does Not apply to electing Full-Voting member(s) of the US House, or Any member(s) of the US Senate, which entities together Rule DC to a Far greater extent than does its City Council.

  60. Iorek Byrnison says:

    Arm bears! Arm bears!

  61. Iofur Raknison says:

    I thought I banished you, Iorek Byrnison!

  62. David K. says:

    if the general populace cannot be trusted with guns, what if anything CAN they be trusted with? must we all be locked in padded cells for our own safety?

    on the other hand, if the general populace can be trusted with any other implement of potential destruction — matches, gasoline, hatchets, chainsaws, bows and arrows, kitchen knives, bleach and ammonia, flour dust — but simply not guns, why not guns? what makes firearms so magically special?

    What makes firearms so special? Two things.

    1) They are far more efficient at killing than any of the things you mentioned above, largerly because of …

    2) They are designed for the primary purpose of being efficient killing machines. Every other potentially dangerous item you mentioned has a primary purpose other than killing.

    I’m not saying guns shouldn’t be allowed, I believe that people can definitely be allowed to use them and many people do so responsibly. I just don’t think they should be as easy to obtain and own. I think at a minimum it should involve mandatory training and licensing, and the types of weapons allowed should be more limited than it is currently. However I fully acknowledge that such a plan my be difficult if not completely impossible as long as the Second Ammendment remains in place. Whether or not it ever can or will be repealed is a question for another time, but I definitely believe that guns need to be better regulated and controlled because of the danger they pose.

  63. Iorek Byrnison says:

    Did you forget about that ass-kicking, Iofur? Cuz we screwed guns and I ripped off your jaw, just like a pissed off Italian fish monger!

  64. Alasdair says:

    And the primary purpose of a bow and arrows other than killing is … ? (And, NO, Venerated Loy, Cupid doesn’t count in this discussion !)

  65. Lyra Silvertongue says:

    What Iorek said. Also, I totally tricked you, Iofur. I’m not a daemon! Haha! You’re dumb. Iorek rules.

  66. Pissed off Italian fish monger says:

    Why are you bringing me into this? Now I’m really pissed off!!

  67. J.R.R. Tolkien says:

    Angels? Daemons? Armored bears??

    Lord of the Rings >>>> His Dark Materials

  68. David K. says:

    Alasdair, when you can find someone who can pick up a bow and arrow without any training and shoot up a whole classroom full of people in a matter of seconds we can talk about bow and arrow control.

    As always you add nothing of value to the discussion.

  69. Alasdair says:

    David – if someone picks up a gun for the very first time, chances are he’s not going to kill anyone either …

    (Hint: until it’s loaded, it’s just a not-very-effective club)

    If you have never held a gun, and someone hands you one that is loaded, it’s not that easy to hit what you think you are aiming at … that’s why people have to practice marksmanship … you are actually quite likely to shoot yourself somewhere …

  70. David K. says:

    Yeah, all those gang bangers who get their hands on guns and end up shooting people in drive buys because they can just keep pulling the trigger and aiming in their general direction have such a tough time. It would explain all those accidental gun deaths. Or Columbine. Or Virginia Tech.

    Once you are able to grasp the vast difference in potential for violence between a bow and arrow and a semi-auto pistol we can have a discussion alasdair, until you are willing to jump beyond ridiculous comparisons with no logical basis though, you add nothing of value.

  71. Anonymous says:

    The efficiency (or dangerousness) of firearms is precisely what makes them such a valuable tool for self-defense. Firearms are the only weapons that level the playing field between the perpetrator and the would-be victim. That is progress.

  72. JO says:

    Now David, I think you’re being a little ridiculous.

    Your quote:

    2) They are designed for the primary purpose of being efficient killing machines. Every other potentially dangerous item you mentioned has a primary purpose other than killing

    Alasdair countered with a bow and arrow (which as far I can tell has no other purpose other than killing) and you respond with well, without proper training you can’t kill a ton of people with a bow and arrow. Come on.

    As for the gang-banger drive-bys, have you ever noticed that most of the time someone other than the intended target is the victim?? They tend to be very poor shots. It’s usually some honor student sitting home reading his homework (at least, that’s the story here in Chicago).

    I do agree with you that there should be strong measures in place to register, track and train those who wish to own a gun. Basically, you can have a gun if you follow these rules. The problem is that in places like Chicago and DC, the only people who have the guns are the criminals. Maybe if the criminal thought old man Johnson might be packing heat, he might think twice about trying to rob him. Who knows.

  73. JO says:

    And as for Virginia Tech, had some of the students who legally owned guns been allowed to have them on campus, I’m guessing there might have been a little different outcome.

  74. David K. says:

    JO, i made TWO points about guns, not one, Alasdair chose to look at only part of the argument. Its not ridiculous to call him out for it. As for VaTech, you really think having MORE kids o a college campus with guns is the way to make us safer? Great, emotional, drunk kids with no parental supervision, now with MORE GUNS! The U.S. has the most lax gun control laws in the world among industrialized nations. We have the highest rate of violent crime. If you look at the numbers, the stricter the gun control laws the lower the rate of violent crime, and not just gun crime.

    And the idea that when you ban guns the criminals have more guns and have an easier time commiting crimes is also not born out by these statistics. Its far easier to limit guns even among criminals when its much MUCH harder to carry them.

    Look, i’m not saying we should outright BAN guns, but I don’t think they should be a right either. That its easier to get a gun than a car in this country is frightening. But as I said, making effective gun control laws is going to be next to impossible (if its at all possible) as long as groups like the NRA have the 2nd Ammendment to hide behind, and rulings like this one that uphold it, to support their attempts to weaken and eliminate all gun control laws.

    But back to Alasdair, as long as he ignores half of the argument i’m making, he is being intentionally or inadvertantly obtuse, and adding nothing to the discussion in his lame attemps at some sort of logical contradiction. He has no interest in discussing the issue, disagreeing in a reasonable way, if he did he would have approached my whole argument, not just the bits and pieces he wanted to.

  75. Youngblai says:

    David K.,

    1.) Yes, David, I think having more kids with guns on campus would make them safer. Funny, but let’s look at just a couple recent foiled mass murder attempts:

    a.) Utah Mall–stopped by off duty cop who was carrying in defiance of the “No gun zone.”

    b.) Bristol college, WV–Student was able to go out to car and get his gun, thus stopping a rampage in its tracks.

    In contrast, despite two hours warning and thanks to the decisions of the campus administration, the victims at VTech were put in a position where one motivated psycho was able to commit mass killing.

    Would a gun have stopped it? Impossible to know. What _is_ possible to know is that _none_ of the victims were given the option of taking their own security into their hands. Whether the killer has a gun, bow and arrow, or is the second coming of The Bride armed with nothing but a katana and a lust to kill, that is unsatisfactory.

    Those of us who grew up in rural areas (and incidentally remember the sheriff making our father an auxiliary deputy with the admonition to “drag them inside the house if you have to kill them–less paperwork that way”) realize that sometimes 911 just means the coroner’s going to get to your body before the raccoons do. Ergo, we have a problem with people who want to say, “Well, because gangbangers are shooting people where I live you have to be helpless.” No, how about you start deciding to elect someone other than incompetent, crooked mayors who apparently let your police chiefs buy more weapons rather than actually doing police work? Fix your own house then come talk to us about being converted from sheep dogs to sheep.

    2.) Which, btw, gets to the crux of the matter–your fear does not trump my rights to protect myself. Felons, by law (i.e., the controls you claim should work) are not allowed to carry guns. Yet, strangely enough, the majority of violent acts with guns are conducted by repeat offenders. Two-legged animals having no regard for the law? Whoda thunk it?! So, fundamentally, what you are saying is “You have to be a victim because I’m scared of being one.” Well, F-you very much on that one.

    3.) Why am I so adamant about this, you ask? I have an immediate family member who is an attorney and just recently was the defense lawyer for a bunch of men who decided to kick in the door of some house and slaughter an entire family basically on a lark. Not only did the state fail to prevent this (for the record, I don’t want a state that can stop all crime–see Germany, Nazi, for an example of how this comes about), the prosecutor didn’t even have the cojones to seek the death penalty for any of these jackals. Thanks, but I prefer having the ability to decide someone kicking in my door feet at 2 AM in the morning is leaving with those same feet leading the way, because obviously at some point our criminal justice system stopped scaring people.

    4.) I find it amusing that yourself and those who agree with you have brought up Florida considering that their homicide rate has gone _down_ since the stand your ground law passed. Actually, several states (to include Missouri and Kansas) have had the same phenomenon occur. Finally, your lax gun control laws argument has been proven false time and time again. Suffice to say that Switzerland (you know, the place where they have an automatic, military weapon in every house) has one of the absolute lowest crime rates of all the industrialized nations. In fact the overwhelming majority of their gun deaths are suicides.

    5.) The 2nd Amendment isn’t “hidden behind,” it’s the da*n law of the land. You don’t like it, you can go live someplace without one rather than bleating about how all of us lawful gun owners need to be regulated and curtailed because you wet yourself thinking about the violence we could do. Sorry, but we can look at England and Canada (two of the countries who have only recently banned guns in the last 30 years) and, thanks, we’d rather not have our rate of home invasions triple (as the former has) since the control laws were passed. The reason why making “effective” gun control laws in this country is justifiably hard is because us “gun nuts” A. get tired of being referred to like we’re knuckle dragging Cro-Magnons, B. tend to be clustered in electoral college states, and C. realize that weak-kneed sissies (see, name calling ticks you off a bit, doesn’t it) tend to take a mile when given an inch. I for one would be happy to have regulation of guns if you could guarantee me that people wouldn’t abuse things. However, given that in good ol’ Chicago (you know, one of those places people claim there’s an effect gun law) the city council members and aldermen seem to be quite prone to carrying while restricting the rights of others, I’m thinking that many of those calling for limits are those who tend to believe in taking rights away from others while not observing their own laws.

    6.) Finally, in that same vein, the 2nd Amendment was intended to protect the rest. Call me a cynic, but it seems like certain elements in countries don’t start getting lackadaisical about observing “rights” until after guns get taken away. Likewise, I don’t think certain groups started establishing “no go” areas until after they could be sure sheer numbers at the point of attack would carry the day. Sorry, but I think the “epidemic of gun violence” (strange, no one talks about an epidemic of auto violence, yet cars kill many more people) is based more on the economic factors and helplessness endemic of folks in the area than access to guns.

    Until you can guarantee me the cops will show up early enough to stop a crime, my government will never try to take my rights away, and that minor regulation won’t lead to an ignorant segment of the populace trying to impose onerous rules upon those of us who have been taught how to respect and use firearms, the issue of revising the 2nd Amendment is a dead letter. Sorry, but those of us who believe in being armed and capable of defending ourselves have been given more than ample evidence that we cannot trust those of you who are either incapable or unwilling to actually learn about how to use guns and their utility. Since many of you are the same people who tell us that we can’t let the justice system kill the jackals in an expeditious manner, pardon us if we’re not ready to trust your logic on what serves as a proper control.

  76. Youngblai says:

    P.S. More number fun for you:

    http://blogs.dailymail.com/donsurber/2008/06/28/4636/

    But, hey, tell me again how gun control works.

  77. Alasdair says:

    /me gives Youngblai a Standing Ovation !

  78. Anonymous says:

    It was about time you got off your knees, Alasdair.

  79. Alasdair says:

    Pray tell, anonymous craintiff, and what led you into that particular erroneous hypothesis ?

  80. Alasdair says:

    So, Youngblai – what do you think ?

    Is David going to respond with “It’s all the Eeevil Booosh’s fault !” ?

    Or “You can’t trust that right-wing rag, the Daily Mail !” (it supports the Labour Party, actually, as I recall) …

    Or “You didn’t address my half-argument about the NRA, so there !”

    Or do you think he’ll jjust grasshopper off in an entirely different arctangent ?

  81. Alasdair says:

    David – if I only address your half-argument, that’s cuz that tends to be all you have … when you make a reasonable point, I can address that point … in your rant about “Every other potentially dangerous item you mentioned has a primary purpose other than killing.

    – I responded exactly on point to the one part that wasn’t factual … the other stuff have primary purposes other than killing … and, yes, the Sun rises in teh East … address *that* point in my argument, won’t you !

    OY !

  82. Philip Pullman says:

    Yeah, because everyone loves a bunch of faggety hobbits prancing around.

  83. J.R.R. Tolkein says:

    One word, douchebag. Dust.

    What the hell is Dust? I have an evil ring of power with a will of its own and you have little flakes of psuedo-scientific b.s.

  84. Gandi says:

    An eye for an eye makes the whole world blind.

  85. Blind Man says:

    Fuck you, Gandhi.

  86. J. Christ says:

    Don’t you go swearing at Gandhi or I’ll get my dad to go all Job on you!

    *winks at Gandhi* Super Best Friends!