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My Fox Column…
Wednesday, July 2nd, 2008…from this week (now posted at reason) is an analysis of the Heller case.
10 Responses to “My Fox Column…”
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I agree with most of your assessment. Not having read the full briefing, I can’t say specifically where I would disagree or make a further point. I can, however, say that sometimes people should say “to hell with the law AKA ink on paper” and do what you consider right. If we simply obey “ink on paper” without giving thought to our actions, then we truly are slaves, sheeple, etc.
Yes, it is correct to say that in the Heller ruling the Supreme Court was silent on the incorporation issue, but that doesn’t mean it will always be. It confined itself to the fact situation at hand. Will the ban on handguns in Chicago, which unlike the District of Columbia is actually located in a state, fall on the basis of the Heller ruling? It just might because Heller validated the ‘individual rights’ interpretation of the Second Amendment and held that a total ban on handguns was unconstitutional. Yes, it is disappointing that Justice Scalia didn’t go as far in the ruling as he could have, but we should never forget that on June 25 it wasn’t at all clear that the court was going to recognize the individual right to bear arms, but thanks to Scalia and four justices on June 26 we could at long last rest secure in the knowledge that the right enjoyed the protection of the courts.
Slightly OT, but it underscores the need for the people to have weapons against dirty cops.
http://www.nydailynews.com/ny_local/queens/2008/07/01/2008-07-01_bar_owner_cops_harassing_me_after_fake_b.html
Modern Professionalism. Feh.
You mention Kennedy’s vote in Raich — the drug war also made an appearance in the recent death penalty case, Kennedy v. Louisiana.
Justice Kennedy holds that the death penalty is unconstitutional when applied to child rape, but says that it might be just fine for drug dealers.
The U.S. v. Miller ruling practically begged for evidence to be presented that a short-barreled shotgun had a military purpose, implying that any arm with militia usefulness is protected by the 2nd. (Because neither defendant was available to respond –one dead, one absconded– the court of origin never sought such evidence.)
Heller didn’t limit the discussion to militarily-useful arms. Scalia wrote:
Just as the First Amendment protects modern forms of communications, (…) the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
“All bearable arms” being protected is something I can live with, having “borne” up to and including (my half of) an M2 Browning .50 caliber heavy machinegun.
The Heller decision begs for a case confirming inclusion under the 14th, just like Miller begged for evidence of military usefulness. Luckily, there are several such cases pending and ready to go.
After reading your commentary as well as the text of the decision, I agree with you to a point. As each of the current gun laws have been the literal ‘Death of a thousand cuts’ the current ruling, albeit narrowly defined, in my view was simply done because of the current makeup of the court. With a justice so removed from the intent of the founder’s declarations as is Kennedy, some reductions I believe were made to the scope of the ruling in order to arrive at a majority opinion.
In the reading of the opinion, the good news is the elimination of the ‘class of weapons’ regarding handguns and the ‘common use’ rule being established. That being said, it will be up to the courts after numerous suits regarding the various licensing schemes that will virtually deprive the citizens from exercising the right of self-defense’ in a ‘timely nmanner’. My question that I posit to the author is this; ‘What constitutes the basis of infringement when the argument of the governments are ‘reasonable restrictions?’ That I feel is the larger question that the SCOTUS had volleyed off to the states to decide.
I disagree that the victory is a hollow one. It’s been ten years since I graduated from law school, and I now practice in a very narrow and specialized field, so constitutional law is not one of my fortes. But I can tell you that in the third year of law school, everyone figures out that it is the holding of a case that is important and embodies “the law,” and dicta buried 50 pages down becomes completely irrelevant (as do any Justice’s dissenting opinions). In this case, the SC stated: “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 …” That’s about as clear as it gets. Of course, “lawful purposes” is always going to be subject to interpretation –shooting tyrannical government agents coming in your front door during their establishment of a NWO fascist dictatorship is never ever going to be a lawful purpose. And the concealed carry issue is a horse of a different color. We’re also never going to be able to own bazookas. The point made is that the SC says there is an individual right, and States are not to impinge on that right. No matter what States now say, we can always argue back that the SC said the Second Amendment confers an individual right and not a collective right (unless this is overturned, but last I heard Roe v. Wade was still good law and has been for 35 years now, so I kind of doubt Heller is going to be overturned anytime soon). Are gun rights in general in the US still an uphill battle? I’m sure. But if the decision had gone the other way, you likely would have seen cities of all sizes with any crime at all passing gun-ownership laws similar to what DC had before this decision.
No, we haven’t gained the right to own machine guns and send handguns through the US Postal Service. We still cannot carry our guns in city hall, or through the halls of elementary schools. But that wasn’t the point of Heller.
Call it a slim or hollow victory if you like, but if SCOTUS had ruled against Heller, gun owners would be in a very, very bad mood today and the Brady Campaign would be raising their glasses in victorious celebration.
Laws restricting firearms have slowly increased in number, bit by bit and city by city. Anti-gun legislation and it’s supporters have long banked on the idea of convincing juries, judges and voters that “militia” ie “modern day National Guard” was the only body intended to be protected by the 2A.
Heller eliminates this argument. And in that, it was a complete victory.
As much as I loathe Fox news I have to commend them for publishing your work Radley.
Gun grabbers must think that the placement of the second amendment directly after the first was some kind of mistake or coincidence…..