In a 5-4 decision, the United States Supreme Court has effectively struck down Chicago’s gun law and extended its earlier ruling on the Second Amendment to all states as a fundamental right. It is the decision that some of us anticipated as consistent with past rulings on fundamental rights. The impact will be considerable as all states will now have to respect the individual right of gun ownership under the Second Amendment.
Justice Sam Alito wrote the majority opinion. I discussed the case in a column in Roll Call that addressed a little discussed aspect of the controversy involving The Slaughter House Cases. Some of us wanted the conservatives to overturn or at least expand the narrow ruling of The Slaughter House cases. As noted in this column, I viewed it as the intellectually honest thing to do — rather than selectively incorporate gun rights. The Court should have adopted a broader notion of the Privileges or Immunities Clause. We were disappointed again:
We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter House holding.
The opinion is somewhat fractured. Alito is joined by three Justices in finding the Second Amendment right of gun ownership is incorporated through the Due Process Clause. Justice Clarence Thomas agrees the Amendment is incorporated, but not under Due Process. This may be a slight disappointment. When Warren forged rulings like Brown and Miranda, he struggled to guarantee a solid if not unanimous voice of the Court. This is a landmark conservative ruling, but lacks that solidity in rationale.
The opinion itself directly deals with the prohibition on firearms in the home. That leaves room for future cases to explore other restrictions such as possession of guns on the street or particularly locales. There are no true absolute rights in the Bill of Rights. Even speech and religion can be limited under some circumstances. The same will be true for gun rights.
Alito points out (correctly) that the majority was not subtle in the earlier Heller decision in how the right to bear arms was viewed as fundamental, even if it did not directly rule on that question:
Our decision in Heller points unmistakably to the an-
swer. Self-defense is a basic right, recognized by many
legal systems from ancient times to the present day,15 and
in Heller, we held that individual self-defense is “the
central component” of the Second Amendment right. 554
U. S., at ___ (slip op., at 26); see also id., at ___ (slip op., at 56) (stating that the “inherent right of self-defense has been central to the Second Amendment right”). Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid., we found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” id., at ___ (slip op., at 57) (some internal quotation marks omitted); see also id., at ___ (slip op., at 56) (noting that handguns are “overwhelmingly chosen by American society for [the] lawful purpose” of self-defense); id., at ___ (slip op., at 57) (“[T]he American people have considered the handgun to be the quintessential self-defense weapon”). Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at ___ (slip op., at 58).
Notably, the Court does not expressly strike down the Chicago law and instead leaves that to the later decisions from the lower courts. Indeed, Alito gives little guidance to lower courts which are left to grapple with the decision.
Here is the opinion: 08-1521
One fascinating aspect of this case is the victory of so-called Brandeis briefs — briefs from amicus with data and statistics designed to push the Court to a particular result. The first two footnotes in the opinion rely on statistics from amicus briefs as opposed to the trial or appellate record. While these briefs have argument and not just statistics, the Court continues to rely on such briefs. I have been a longtime critic of Brandeis briefs.
It will be interesting (and likely) to see the decision raised today in the Kagan hearings. Kagan previously stated that she is not sympathetic with gun rights claims. She may be asked if she would view this matter closed under principles of stare decisis now that a decision has been rendered. Notably, since Justice Stevens wrote one of the dissents, Kagan would not have changed the result.
This is a developing blog entry.
Poke
Poke
Poke
Come on! Dance, monkey, dance!
There’s also the possibility of anxiety resulting from repressed homosexual panic, mespo. But selling him short is probably part of that pathology as well.
Nor do I give a rats ass. If you don’t like it, get your ass to England Wales or France.
**************
Well obviously you do there little man or you wouldn’t have responded.
I have always agreed with the Freudians that the man obsessed with the size of his rifle — like PK here– must have some Howitzer-like feelings of inadequacy about the size of his personal “gun.”
Come on. Bark some more. Illustrate to the world what substandard education and steady diet of beer and violence makes a “man” become.
Seriously. I can make fun of you all night (or until I get bored, whichever comes first).
Actually, you do a fine job of mocking yourself.
I’m just surprised someone with a family tree that looks like a stump can even find the power switch on a computer much less type.
Got it, goober?
You know, that’s kinda funny, because I have no tolerance for rightwing wannabe bad boys who don’t understand what the Constitution means period except to use the word “gun” as a justification for their being a backwards purposefully ignorant violent redneck thug.
Or would you like to threaten some more judges?
I don’t care what you tolerate. Let me put it to you as clearly and concisely as possible. I don’t give a shit about tolerance. I know what I love, what I like, what I despise, and what I hate. I don’t pretend to be tolerant, and I don’t have any problem whatsoever expressing that, nor do I give a big fucking rats ass how you interpret my words or how you feel about them, or me. I mean exactly what I say. Got it, freak?
[youtube=http://www.youtube.com/watch?v=xP1rN7qSN3c&hl=en_US&fs=1&]
“I have no tolerance for traitorous leftist judges to whom the constitution means what’s convenient to their beliefs at any given time.”
You know, that’s kinda funny, because I have no tolerance for rightwing wannabe bad boys who don’t understand what the Constitution means period except to use the word “gun” as a justification for their being a backwards purposefully ignorant violent redneck thug.
Or would you like to threaten some more judges?
My but aren’t you a violent lil’ psycho, Wyatt.
“While I might agree with today’s ruling on legal grounds, idiots like you make me want to oppose it. I might also observe that the reason for the laughter coming from abroad likely springs from the realization that violent wackos like you may have gotten more than you you asked for in today’s Wild West ruling. Here’s some stats:
“Firearm homicide rate
per 100,000 pop.
“England & Wales 0.12
France 0.21
United States 2.97
“Not real hard to figure who gets the last laugh there, is it Wyatt Earp?”
Nor do I give a rats ass. If you don’t like it, get your ass to England Wales or France. I’ll gladly live with our murder rate and take my chances. I have no tolerance for traitorous leftist judges to whom the constitution means what’s convenient to their beliefs at any given time. A well-regulated militia means an armed citizenry, not a professional standing army or professional police, or anything remotely like that. They know that, and need to see the end of a hangman’s noose for saying otherwise.
That wasn’t the exact Bill Hicks bit I was looking for, but close enough.
[youtube=http://www.youtube.com/watch?v=3rfdRJahOIQ&hl=en_US&fs=1&]
Patrick Kelley:
“The proper place for the four in the minority is at the end of a hangman’s noose. Call me intolerant, I don’t care, in fact, you would happen to be correct. Anybody that denies individual rights under the Second Amendment needs to make their home in Britain and France, so they can join in the laughter.”
******************
While I might agree with today’s ruling on legal grounds, idiots like you make me want to oppose it. I might also observe that the reason for the laughter coming from abroad likely springs from the realization that violent wackos like you may have gotten more than you you asked for in today’s Wild West ruling. Here’s some stats:
Firearm homicide rate
per 100,000 pop.
England & Wales 0.12
France 0.21
United States 2.97
Not real hard to figure who gets the last laugh there, is it Wyatt Earp?
Speaking of “ceasing to be an issue”, I don’t hear a lot from the gun zealots being upset about the suspension of habeas corpus, another fundamental Constitutional right.
Regulating militia (read: civilians) gun ownership is perfectly Constitutional. The only reason it isn’t in this case is the 14th Amendment and the reservation of powers. A Federal law (which you’ll never see due to the NRA’s lobby and their “exemption”) could legally restrict the ownership of weapons that can be converted to military specs without any Constitutional conflict.
This ruling has limited scope and it’s scope isn’t the ability for the Federal government to regulate firearms (to a point), but rather that it’s improper for states to do so in any way.
“Aside from all of that, there are legitimate uses for civilian ownership of military derived guns.”
Apologist gun nut nonsense that keeps criminals in heavy artillery that’s easily modified from the civilian versions. Minimal precision means exactly that, not accuracy, but the ability to flood a target with bullets no matter how much of a shitty shot you are despite your protestations to the contrary. Just get in the neighborhood. As to penetration, ever hear of custom loads? That not ringing a bell? You can make any gun safer in a home environment by altering the size (or indeed type) of projectile and/or the grain load.
And “keeping heads down”? Laughable horseshit unless you mean “blowing heads off”.
Unless, of course, the deer you’re hunting are armed with .50 cal. Ooooo. Scary.
And don’t confuse disdain for panic.
Guns have limited utility. Other than for hunting and self-defense – for which pistols, traditional rifles and shotguns are perfectly adequate? Guns are for little boys trying to compensate for something and/or criminals.
Personally, I believe Robert Heinlein was correct. He wrote a short story about how everyone was mandated to be armed. Short term consequence? Murder rate went through the roof. Long term consequences? Manners got a helluva lot better. But it didn’t require overkill weapons. Just simple sidearms.
Be a better shot and needing to spray high volumes of lead ceases to be an issue.
I am reminded of the old “All In The Family” episode where Archie gives his public service announcement on how to end hijackings…
“I could end all hijackings tomorrow – just arm EVERYONE on board. You can pass out all the guns at the beginning of each flight..”
Guns Germs Steel
Buddha Is Laughing-
“Don’t get me wrong. I’m a staunch believer in the 2nd Amendment as a bulwark against tyranny, but you can kill bad men with a pistol (indeed, killing men is the primary design function of pistols and yes I know some people hunt varmints with them – doesn’t change their design parameters), a shotgun or a rifle just as dead as you can with a fully automatic assault rifle (designed for one thing – wholesale massacre of humans with minimal precision).”
“Minimal precision”? What does that even mean? The current battle rifle of the US military, the M-4 derivative of the M-16, is known for being incredibly accurate. The primary purpose of fully automatic fire is to keep people’s heads down, not to kill enormous crowds of people (and that’s not even relevant given that the M-4 isn’t fully automatic, it fires in semi-automatic and three shot burst modes).
Aside from all of that, there are legitimate uses for civilian ownership of military derived guns. The AR-15 is one of, if not the, most popular center fire rifles in the U.S., used for target shooting, sanctioned competitions, and yes, hunting. The platform allows for many calibers all the way up to those sufficient for fairly large game. Add in the accuracy, light weight, and the plethora of accessories available… It’s also becoming a good choice for home defense. Not because you can shoot a burglar 30 times, but because the typical .223/5.56 round doesn’t over penetrate as badly as shotgun or even pistol rounds. That’s a serious concern if you have children or live in close proximity to other people. It also has very low recoil, making it easy for people of all statures to operate.
The panic expressed here is funny. Gun laws nationally have become far more relaxed in the last twenty years, and during that time, violent crime went down. We’ve gone from about half the country allowing normal people to carry concealed weapons to all but eight states allowing it. We had record gun sales in the first half of 2009 but despite that and a horrible economy, crime was substantially down. I don’t think crime drops because of looser gun laws, but the notion that more guns = blood in the streets is nonsense.
Thank you FF LEO.
What? No italics for the “well regulated” portion? Selection bias.