To Sum The Whole Thing Up
By Mitch Berg
Lefties – including in my comment section below – are nattering about Scalia’s opinion, and what it didn’t decide.
Look – at the end of the day, it all comes down to this:
- The Second Amendment is an individual right.
- All the technicalities – makes, models, calibers, operating systems, registrations, databases, exceptions, local sensitivities, what have you – are to be worked out in the legislatures, Congress, and lower courts.
Once you have #1, the rest is just footwork and lobbying and winning people over.
Which is what the Second Amendment movement’s been doing for the last three decades.
June 26th, 2008 at 12:41 pm
The point isn’t what the court didn’t decide. It’s what Scalia said about what the court didn’t decide. It’s called “dicta” – stuff a judge says that isn’t necessary to the holding in the particular case being decided. Often a judge’s dicta isn’t worth dick. But when it represents the views of a majority of the United States Supreme Court, it carries a lot of weight.
Sure, some lower court may try to give you kooks a Second Amendment right to put a howitzer in your back yard. But it’s pretty clear from Scalia’s opinion how the court would rule on the appeal of such a case. It would get reversed. So it won’t happen in the first place.
Scalia could have left some of these issues open by writing “the court does not reach the issues of A,B and C,” letting the lower courts fill in the details of a broad new principle. He didn’t do that. Instead, he said that A, B and C *do not violate* the 2nd Amendment right he just created.
Ask Thorley or wait for some smart guys to weigh in on this tomorrow, if you are foolish enough to doubt Angryclown. The decision is clearly a win for gun nuts. But it ain’t all that.
June 26th, 2008 at 12:50 pm
Sure, some lower court may try to give you kooks a Second Amendment right to put a howitzer in your back yard. But it’s pretty clear from Scalia’s opinion how the court would rule on the appeal of such a case. It would get reversed. So it won’t happen in the first place.
Strawmen aside – there isn’t a whole lot of precedent re; howitzers, flamethrowers, or the ever-present sidearm of strawmen, the nuclear bomb – it doesn’t change my conclusion.
Again – not having had time to read the decision, being at work and all – the dicta seem to indicate that “regulations and restrictions on the individual right are not unconstitutional”. Unsurprising, and no big deal, since the actual composition of those restrictions are largely to be played out in the legislatures.
Which is bad news for the next two years, perhaps (and thank God for the NRA), but in the long term it’s exactly what we want.
June 26th, 2008 at 1:01 pm
Seems to me Scalia’s saying an assault weapons ban is constitutional.
June 26th, 2008 at 1:08 pm
AC, I think better put, assault weapons ban is up to lower courts and legislature to hash out. I do not think it is as unequivolcal as you interpret it.
June 26th, 2008 at 1:29 pm
Scalia’s saying an assault weapons ban is constitutional.
Yes, and – this is important – a legislative matter.
Bans may be permissible; revoking, repealing or suing them out existence certainly is, too.
June 26th, 2008 at 1:34 pm
Actually, many towns and even individuals used to own personal cannon. For example, the Mormons had one or two when they moved west from Illinois to Utah.
I’d be content with a clear right to weapons that can be carried; it is, after all, the right to keep and “bear” arms, and even a Browning .50 can be carried by a good stout lad. It would serve the Founders’ purpose of preventing tyranny, I’m sure. (about a dozen guns did keep a division of Nazis at bay for a few weeks in the Warsaw Ghetto, no?)
There is some wiggle room there, but all in all, it’s got to be making people in New York City, Chicago, Wilmette, San Fran, and other gun-banning localities very nervous.
June 26th, 2008 at 1:34 pm
I wonder how this will affect Hawaii’s gun laws:
The emphasis on the word ‘may’ is my own.
June 26th, 2008 at 1:40 pm
Don’t you get it, Mitch?!
Wishy washy Scalia says that the 2d Amendment only protects our right to bear those arms “typically possessed by law-abiding citizens for lawful purposes” and the legislatures will be totally free to “prohibit[] the carrying of “dangerous and unusual weapons.’”
What kind of freedom is that?!
What we need is some more conservative judges to step in and tell those legislatures what they can and cannot do!
/jc
June 26th, 2008 at 1:51 pm
What was that?
Sorry – I’m standing on the arch over the Robert Street Bridge, playing the bagpipes and drinking Scotch and leading the crowd in chanting “You can’t take your guns, AND you can’t take our freedom!”
It’s hard to hear the nattering.
Sorry! I’ll get back to you!
June 26th, 2008 at 1:58 pm
Heehee! Think you’re going to have a hangover when you finally read the opinion.
June 26th, 2008 at 2:07 pm
While Mitch is out blowing something, the local elected officials of Chicagostan are voting to regulate the sale of assault weapons as “dangerous and unusual.”
I don’t want judges who talk about our freedom, I want real conservative judges who tell those legislative branch weeines who’s in charge of our freedom!
Impeach Scaliaburg!
/jc
June 26th, 2008 at 2:07 pm
You never know.
Look – the stuff I HAVE seen hasn’t killed my buzz. As noted in my latest bit, Scalia upholds the right to armed self-defense, AND the use of handguns for that purpose.
I’ll look for any signs that he says anything other than “legislatures can pass prudent restrictions on this right”, but that’s not a big worry. Some restrictions – felons, the mentally ill, people with violent crime records – are good, and nobody argues them (indeed, the NRA leads in supporting ’em). The rest? Well, that’s just a matter of winning legislative battles. And we have a pretty good track record at that.
Ooh, look – someone brought a barrel of gin and an effigy of Breyer!
June 26th, 2008 at 4:13 pm
Terry,
I would bet it won’t have an effect on Hawaii’s laws. They don’t explicitly ban the ownership. They place that decision with the chief LEO of the jurisdiction. He’s not making laws, just approving or denying according to his own arcane criteria. The Chief saying “I don’t think you need a gun” is not a legislated ban, even though the end result is the same. And that is correctly left up to the state legislature of Hawaii.
June 26th, 2008 at 4:15 pm
MN was a “may issue, if” issue state before the carry reform of 2003/2005 when we turned into a “shall (MUST) issue, unless” state.
June 26th, 2008 at 4:42 pm
Bill C-
You may be correct but I wonder how this will compare the rulings on the other enumerated rights, eg the legislature is not allowed to turn over my right to free speech or freedom of worship to an appointed official. The current rule is more than arcane, it’s arbitrary. The Chief of police can deny you a permit because your kid reported his kid for smoking behind the school gym, etc.
June 26th, 2008 at 6:21 pm
Having, basically, nothing else to do today (raining again) I’ve decided to do a bit of research.
-Hawaii was one of four states that wrote an amicus curae asking for summary reversal of Heller vs DC. The other three states were NY, Illinois, and Maryland. The amicus curae can be seen here: http://www.scotusblog.com/movabletype/archives/07-290_cert_amicus_states.pdf
A quick reading of the amicus curae shows that they are arguing that Miller allows regulation of any sort of firearm ownership even to banning their possession altogether. The writers of the amicus curae seem especially upset that the original DC circuit decision ( http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf ) — which they wanted the SC to overturn — specifically said that handguns were considered arms under the 2nd amendment. This may also explain why today’s decision refers to handguns on 133 occasions.
June 26th, 2008 at 10:45 pm
I think that this decision would invalidate Hawaii’s gun laws. If there is an individual right to own a firearm, then permits must be issued unless you’re a felon, insane, an angry clown, etc. The decision didn’t expressly say that the Second Amendment applies to the states, but the subtext seems to say yes.
This decision leaves a lot of open question, but at least we have the affirmation that the Second Amendment does recognize an individual right. The fact that this decision leaves gun-grabbing autocrats like Richard Daley in apoplectic fits is more than enough to make my week.